The Grenfell Tower tragedy: key issues for prosecutors

In assessing liability of parties who refurbished Grenfell Tower, prosecutors will look at who had a ‘duty to warn’ about potentially combustible cladding. Keystone Law’s David Beckenham and Jason Kallis explain

The fatal blaze at Grenfell Tower has raised important safety questions. The cladding system may have contributed to the rapid spread of the fire – so where does this leave those involved in its design, manufacture and installation? This will include private companies and consultants, as well as the local authority.

Prosecution cannot be ruled out, so what are the key issues to be considered by the police, the Crown Prosecution Service and, possibly, a jury?

First, the investigation will concentrate on identifying evidence that may 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 that could reasonably have been expected that it warrants criminal liability?

For corporate manslaughter, it is broadly similar – an organisation 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 was a substantial element in the breach. 

With gross negligence manslaughter, issues will arise should the prosecution identify that no single person’s negligence led to the fire; the offence does not allow for the aggregation of people’s negligence to be taken into account. The Corporate Manslaughter and Corporate Homicide Act 2007 allows for aggregation of negligence, but does not allow for individual liability.

Was one entity to blame?

On the refurbishment of a high-rise tower, different people or corporations will be responsible for various elements of the design. However, one entity or individual is likely to have had responsibility for the overall design. As lead consultant, architects normally take on this role – but it is not just their scope of service or responsibility that should be scrutinised. It would be more appropriate to assess the probable liability for gross negligence – in this instance, within the realms of what they should do about high-risk fire issues. Who had a duty to warn? In the case of Grenfell, this question can be reduced to who had – and who ought to have had – knowledge of the cladding issue?

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 – may still be entitled to assume that design would be implemented to prevent the cladding from spreading fire. 

Designer’s liability and a duty to warn

There is no general duty to warn in English law, but there is a duty to warn where there is danger to human lives (see Akenhead J, in Cleightonhills v Bembridge Marine). All the professionals contracted with the council who knew the cladding was potentially combustible are likely to have had a duty to warn, unless circumstances show they could, feasibly, have assumed it would become fire-proofed during installation.

Ordinarily, simply warning an employer of a risk of catastrophic fire is not enough; one must warn vigorously or – where the risk is high – refuse to proceed with the works, and perhaps prevent others from proceeding.

Investigators will need to see the contracts and associated documents, professional appointments and explanations about why decisions were made to determine the potential responsibility of the cladding specialists, contractors, architect, engineers, those checking Building Regulation compliance, or the employer. But a lead designer or consultant may find it difficult to argue they did not have a duty to warn. The assumption that others will be ‘designing out’ a fire risk is, however, likely to protect the lead consultant. They may be able to vindicate proceeding with the cladding installation if they had been told expressly that it would resist the spread of fire.

In summary, it is possible that the designer, contractor or local authority could be prosecuted for breaching a duty to warn. Whether this 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