The day after at least 80 people lost their lives in the Grenfell Tower fire, Labour MP David Lammy demanded to see arrests made for corporate manslaughter.
Writing in the Guardian, Lammy called for people to stand in the dock before a judge and a jury over their part in the fire. “Don’t let them tell you it’s a tragedy. It’s not a tragedy, it’s a monstrous crime. Corporate manslaughter,” he wrote.
Since then a criminal investigation into the fire has been launched, and the Metropolitan Police has said there is a possibility that both the Royal Borough of Kensington and Chelsea (RBKC) council and the Kensington and Chelsea Tenants Management Organisation (KCTMO) could be charged with the offence.
In a letter to Grenfell Tower residents republished in the Daily Telegraph, the Met said it had warned both bodies it had reasonable grounds to believe there had been a breach of the Corporate Manslaughter and Corporate Homicide Act 2007.
But what is the Act? What constitutes a breach? And what other charges could be made as a result of the tragedy?
Prior to 2008 when the Act came into force, organisations could technically be prosecuted for the common law offence of gross negligence manslaughter, if it could be proved the firm had fallen well below a standard of care which could reasonably be expected.
The criminal litigation arising out of this could change the [legal] environment
David Beckenham, Keystone Law
In practice, prosecutions were almost impossible: one individual had to be held responsible, and in a company with several layers of management, one person was rarely to blame for every failing.
With the introduction of the 2007 Act, companies became liable for an unlimited fine if it could be proved that the actions of senior management amounted to gross negligence – for the first time, blame could be aggregated.
Smal firms bear the brunt
Even so, smaller firms have tended to bear the brunt of prosecutions as it is easier to identify negligence in a smaller group of people. But Keystone Law health and safety lawyer David Beckenham believes that in the wake of the Grenfell Tower fire, the pressure to hold larger companies accountable could see important legal precedents produced in the criminal investigation.
“It could be groundbreaking,” he says. “The criminal litigation arising out of this is something that could change the [legal] environment, to my mind.”
Beckenham warns that those firms with more specialist knowledge, such as the contractors, subcontractors, project managers and architects involved in the Grenfell Tower refurbishment, could face scrutiny; he even believes we could see raids on company offices with swathes of documents seized.
A successful prosecution could make companies more wary, and lead to more stringent checks and balances being put in place.
“A lot of companies that are involved in this type of work, even if they weren’t involved in this project, they’re going to be looking at this very carefully, and they’re going to want to make sure that if there were any mistakes made, they’re not making similar mistakes in their own projects,” says Beckenham.
Some will be glad that companies and bodies could face justice for potential failings. But individuals cannot be arrested under the Act, nor can they be jailed: something Beckenham believes could prove unpopular in this case.
A lot of the public don’t realise that corporate manslaughter only applies to corporate entities
David Beckenham, Keystone Law
“A lot of the public don’t realise that corporate manslaughter only applies to corporate entities, it doesn’t apply to individuals, and I think there’ll be some public outcry if there isn’t an individual in the dock,” he says.
So could we see someone facing a jail sentence? If so, on what grounds?
While a company could be saddled with a hefty fine if it can be proved that senior management was grossly negligent, a major oversight made by an individual – for example, a professional with specific responsibilities in design and/or construction – could see them facing gross negligence manslaughter charges, which could result in a jail term.
Mistakes versus negligence
And while making a mistake cannot be seen as grossly negligent, failing to mitigate an obvious risk can be considered negligent in the eyes of the law.
“If you knew that something was definitely a risk to life, a risk to people’s lives, you don’t just have to stand up and say, ‘that’s a risk, I wouldn’t do that’, you positively have to stop it,” says Keystone Law construction litigator Jason Kallis.
Given the inherent pressures on projects to keep to timelines, this could be a concern for engineers. “If I was a civil engineer and I’m involved in a project, and I know it’s not going as it should be, and that could lead to a massive fire, what do I do?” says Beckenham.
“Do I warn somebody, do I say I don’t want to be involved? Do I warn the council, or do I warn my customer? That could lead to me losing business. So what do I do?”
However, he thinks it is more likely that a company will end up in the dock for charges related to manslaughter.
And while only one or two companies could face corporate manslaughter charges, more could be prosecuted under the Health and Safety at Work Act. This is because the burden of proof is on the defendant to show that, within reason, every possible step was taken to prevent a person coming to harm. In August, a joint venture working on the Crossrail project – Bam, Ferrovial, Kier (BFK) – was fined £1.065M for health and safety-related offences following the death of a worker in 2014.
“Even if there aren’t corporate manslaughter charges, or gross negligence manslaughter charges,
I would bet my mortgage that there will be charges under the Health and Safety at Work Act,” says Beckenham. “There will be one of those, if not all three.”