Grenfell Tower - issues the prosecutors should consider

David Beckenham and Jason Kallis of Keystone Law.

Where does the Grenfell Tower tragedy leave the various construction parties involved with the design, manufacture and installation of the cladding widely blamed for the spread of the fire? David Beckenham and Jason Kallis investigate.

Recent events at Grenfell Tower have sparked national outcry and raised important safety questions. It seems that the cladding applied to the building may have contributed to the abnormally rapid spread of the fire. So where does this leave the various parties involved with the design, manufacture and installation of said cladding? 

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, CPS and, possibly, a jury? 

Gross negligence manslaughter and corporate manslaughter

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

  1. Was there a duty of care owed by the defendant to the deceased?
  2. Did a breach of that duty of care lead to the death(s)?
  3. 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 it is the organisation which is guilty of an offence if the way in which its activities are managed or organised:

  1. Causes a person’s death;
  2. 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 if the way in which its activities were managed or organised by its senior management is a substantial element in the breach.

Where gross negligence manslaughter is concerned, issues will arise should negligence be identified on the part of a number of people. 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 it 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 it is likely that one entity or person had overall design responsibility. As lead consultant, architects would traditionally assume this role. But it is not just that consultant’s scope of service or assumption of responsibility that should be scrutinised here. It would be more appropriate to assess likely liability for gross negligence within the realms of what they should do about high risk fire issues. 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 to determine. 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

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, unless circumstances show that they could have assumed the cladding would become fire proofed during installation. 

Once it is established that someone owes a duty to warn, they must proceed with extreme caution. Simply warning an employer of a risk of catastrophic fire is not enough. One must warn vigorously or, where the risk is high, take steps to stop work or prevent others from proceeding. 

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. 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.

It is entirely possible that the designers, contractors or council 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. 

David Beckenham is a health and safety lawyer and Jason Kallis is a construction litigation expert, both at Keystone Law.