The catastrophic blaze that ripped through the Grenfell Tower in North Kensington in the early hours of 14 June 2017, causing multiple deaths and the loss of hundreds of homes, has prompted widespread commentary on the treatment of public housing tenants in London’s richest borough.
We consider some of the legal issues being raised in its aftermath, including the best way to investigate the causes of the disaster, and how to apportion any civil and criminal liability for what happened.
Inquest or inquiry?
The Prime Minister, Theresa May, has ordered a public inquiry, to be headed by a senior judge. But it has been suggested that it would be better for the victims and former residents to hold inquests. A public inquiry can take years and any safety recommendations might not be made, let alone implemented, for a long time.
However, even the recommendations of coroners are not necessarily implemented quickly or at all. An example is the recommendation to consider the installation of sprinklers in all large housing blocks, which was made by a coroner in 2013, investigating the six deaths in the fire at Lakanal House in Camberwell, south London in 2009. In 2016, three years later, the then housing minister Gavin Barwell told MPs the government were still “looking into it”.
Solicitor advocate Sophie Khan, director of London firm Sophie Khan & Co who acted for the victims of the Lakanal House fire, said last week that inquests would be better than an inquiry in the Grenfell Tower fire. She suggested that a coroner would be more independent than a “government-led, government-controlled” inquiry and that the jury at an inquest could give a more critical narrative verdict.
But the charity INQUEST took the opposite view, in a Statement on Grenfell Tower Fire: “We are in no doubt that the interests of the bereaved families, survivors and the public at large are likely to be better served by a wide ranging judicial public inquiry rather than an inquest in a large scale disaster such as Grenfell House.
A public inquiry, under the Inquiries Act 2005, would be chaired by an independent and senior judge, possibly a Lord Justice of Appeal, and certainly more senior than a coroner. It would be held in public, under section 18, subject to any restrictions imposed under section 19 (e.g. in interests of national security —unlikely in this case, one would have thought). Victims and other interest groups could be represented by lawyers, who could ask any relevant questions of any of the witnesses, subject to the chair’s control of the proceedings. Witnesses could be compelled to attend and give evidence or produce documents, under section 21 of the Act. Failure to do so would constitute an offence under section 35.
The ambit of a public inquiry depends a good deal on its terms of reference, but it would usually be wider than that of an inquest. However, where the inquest qualifies as an ‘article 2’ (of the European Convention on Human Rights) inquest, looking into the role of the state in relation to the deaths, it has a wider frame of reference than other inquests, which are confined to where, when, and how a person died. That said, while advocates and others can ask witnesses questions, the witnesses needn’t answer if it might incriminate them. The inquest might avoid areas likely to be the subject of a criminal investigation. It is not the purpose of an inquest, which by its nature is an inquisitorial procedure, to apportion blame in terms of civil or criminal liability.
It appears that there will now be a criminal investigation running alongside the public inquiry. David Lammy, MP for Tottenham, has suggested there should be prosecutions for corporate manslaughter, and urged the police to seize all documents from relevant parties for use in the investigation.
It is notoriously hard to get a conviction for corporate manslaughter, which requires proof of a gross breach of a relevant duty of care of equivalent seriousness to the common law standard of gross negligence manslaughter. However, a change in the law introduced by the Corporate Manslaughter and Corporate Homicide Act 2007 has made it easier to prove the offence against an organisation without needing to identify a single “controlling mind” whose acts or omissions committed all the elements of the offence. It is enough, now, to show that the relevant acts or omissions arose out of the way in which the organisation’s activities were managed or organised by its senior management.
The 2007 Act applies to business partnerships, local authorities and most government departments as well as corporations. In the case of the Grenfell Tower fire, the most likely candidates would be the local authority, the building’s management company, and the contractors and sub-contractors involved in the refurbishment in which apparently flammable materials were fitted as external insulation and cladding.
If convicted of corporate manslaughter, an organisation faces unlimited fines (these often run into hundreds of thousands of pounds). A convicted company might also be subjected, under section 9, to a remedial order requiring it to take such steps as may specified by the court to improve its “policies, systems or practices”, failing which it would commit a further offence. Moreover, by section 10 it can be required to name and shame itself by publicising the fact of its conviction, the details of the offence, the amount of any fine and the terms of any remedial order.
However, no one goes to jail for corporate manslaughter. That would require conviction of an individual, such as a director, for some deliberate or grossly negligent personal act or omission, such as to constitute the offence of gross negligence manslaughter at common law.
There also may be various civil claims arising out of the fire, including claims for breach of contract, insurance claims, building dispute type claims, and so forth, all of which may take years to come to court, if they are not settled, while the facts are established in the inquiry and any ensuing criminal trials concluded. (Findings and convictions, if any, could then be used in evidence in any civil proceedings, which would likely be adjourned for that reason.)
There might very well also be claims in tort, particularly for negligence or breach of statutory duty (eg under health and safety laws), against individuals or corporate bodies, brought by the victims or their estates, or by former tenants. Again, such claims might have to be adjourned pending the outcome of any inquiry and/or inquests.
Finally, there could well be further disputes over the provision of alternative housing for those rendered homeless by the blaze. The variety of categories of possible civil claim is so great, it is hard to discuss them in any more detail at this stage.
Tenants of Grenfell Tower reported that they had often complained about potential fire hazards in the building, and about the way it was managed (see Grenfell Tower — The KCTMO Culture Of Negligence). But their complaints were ignored, and they were unable to get legal aid to fund the advice and help they would have needed to bring proceedings and obtain some form of declaration or other remedy. For example, tenants concerned that fire regulations are being breached must commission a fire assessment and then bring a private prosecution, something well beyond the means of most tenants or their associations.
Now that their worst fears have been realised, lawyers have offered to help them cope with the legal fallout. Lawyers and specialist housing advisers from the charity Shelter and the Housing Law Practitioners Association are now working with the North Kensington Law Centre to run free daily drop-in advice clinics, and a JustGiving page has been set up to enable people to donate funds. Moreover, Prime Minister Theresa May has now pledged funding for legal representation for residents to ensure their voices are heard in the public inquiry.
The blanket media coverage of the disaster has given rise to regulatory issues. Complaints to the largest regulator, IPSO, have been made, inter alia, in respect of the allegation that a Sun reporter had impersonated a relative of an injured victim in an attempt to obtain an interview in a hospital, and about a Mail Online article about a man whose faulty fridge allegedly started the fire.
Most complaints have related to the privacy and harassment clauses of the Editors’ Code, and some have focused on intrusion into grief or shock. However, there may well be a temptation to identify and point the finger of blame at individuals involved in the management of the building and its refurbishment in ways which could prejudice any criminal proceedings ultimately pursued, and could lay publishers open not just to regulatory action from IPSO, but also to liability for contempt of court.
Paul Magrath is Head of Product Development and Online Content at the Incorporated Council of Law Reporting for England and Wales (ICLR). He tweets as @Maggotlaw.