Grenfell: the issues prosecutors and the police will consider

At this stage there is no clear view of who is to blame, but prosecution cannot and should not be ruled out, not least because of the high-profile nature of the incident.

So, what are the key issues to be considered by the police, the Crown Prosecution Service and, possibly, a jury?

Gross negligence manslaughter and corporate manslaughter

First the investigation will concentrate on identifying whether there is significant evidence to support charges of gross negligence manslaughter or corporate manslaughter. The test for gross negligence manslaughter is:

• Was there a duty of care owed by the defendant to the deceased?
• Did a breach of that duty of care lead to the death(s)?
• Did the behaviour of the defendant fall so far below the standard which could reasonably have been expected that it warrants criminal liability?

The test for corporate manslaughter is broadly similar in that the organisation (there is no individual liability under the Corporate Manslaughter and Corporate Homicide Act 2007) is guilty of an offence if the way in which its activities are managed or organised:

• Causes a person’s death;
• Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased

The organisation is guilty of an offence only if the way in which its activities were managed or organised by its senior management is a substantial element in the breach.

So far as the charge of gross negligence manslaughter is concerned, issues will arise for the prosecution should they identify negligence on the part of a number of people but no single person’s negligence led to the fire.

The offence does not allow the aggregation of various people’s negligence to be taken into account. The Corporate Manslaughter and Corporate Homicide Act 2007 does allow for aggregation of negligence but as does not allow for individual liability.

Was one entity to blame?

On a project such as the refurbishment of a high-rise tower, there would have been more than one person or corporation responsible for design.

However, there is also very likely to be one entity or person with overall responsibility for design. But it is not just that consultant’s scope of service or assumption of responsibility that should be scrutinised here.

“Deciphering who had a duty to warn is not easy.”

It would be more appropriate to assess likely liability for gross negligence, in this instance, within the realms of what they should do about high-risk fire issues, at law. That boils down to one issue.

Which of the entities involved had a duty to warn?

In this case that question can probably be reduced to the issue of who had knowledge, and who ought to have had knowledge, of the issue with the cladding?

Of course, deciphering who had a duty to warn is not easy.

Some involved on the project may have been unaware that the cladding was not fire retardant. Some, despite knowing that it was not, may still be entitled to assume that design would be implemented which prevented the cladding from spreading fire.

Designer’s liability and a duty to warn

While there is no general duty to warn in English Law, there is a duty to warn where there is danger to the lives of humans (see Akenhead J, in Cleightonhills v Bembridge Marine).

Ultimately, all the construction professionals contracted with the council who knew that the cladding was not fireproof are likely to have had a duty to warn.

This is unless the circumstances show that they could have feasibly assumed the cladding would then become fire proofed during the installation process.

Once it is established that someone owes a duty to warn, to comply with their duty they must proceed with extreme caution. Ordinarily, simply warning an employer, for example, of a risk of catastrophic fire is not enough.

One must warn vigorously or, where the risk is high, simply refuse to proceed with the works, perhaps even take steps to prevent others from proceeding.

Without seeing the contracts, professional appointments, and explanations as to why decisions were made, it would be inappropriate to attempt to place definitive blame on the cladders, contractors, architect, engineers, those checking building regulation compliance, or the employer.

But, on the face of it, if there was a lead designer or consultant, that individual may find it difficult to argue that they did not have a duty to warn. Meanwhile, the assumption that others will be “designing out” a fire risk is likely to protect the “lead consultant.”

Indeed, it may be that those with overall design responsibility may only be able to vindicate proceeding, once aware of a fire risk, with the cladding installation, if they had been told expressly that the cladding was fire retardant.

As enquiries continue, it remains unclear who may find themselves standing in the dock but it could well be any of the designers, contractors or even the local authority which commissioned the works. From this list it is possible that all three entities could be prosecuted for breaching a duty to warn.

Whether a breach of a duty to warn in this instance constitutes gross negligence manslaughter or corporate manslaughter will ultimately be a matter for the jury to decide.

One thing is for certain, however: that these events will serve as a tragic reminder to everyone involved in the design and construction industry as to the importance of safety and the responsibility that rests upon their shoulders.

David Beckenham, health and safety lawyer, Keystone Law

Co-written by Jason Kallis, a solicitor specialising in construction and product liability at Keystone Law