Grenfell Tower disaster – the criminal law implications

Grenfell Tower disaster – the criminal law implications

In this article, Old Bailey Solicitors’ Director, David Osborne, considers the potential criminal law implications of the Grenfell Tower disaster.

Corporate Manslaughter or Gross Negligence Manslaughter?

In the wake of the Grenfell Tower disaster, residents, politicians, journalists and the wider public expressed a generalised sentiment that something must be done. There was a sense that something had gone wrong, not just with the tower but with social housing in general, and that somebody ought to be held to account. The public inquiry is already under pressure, with residents concerned that its terms of reference will be set too narrowly from the outset. In any event it will have to await the outcome of any criminal proceedings.

This begs the question, what form of criminal proceeding?

Realistic prospect of conviction

It is possible to imagine a range of health and safety breaches but there would be uproar if manslaughter were not considered. The usual rules for charging will apply – the public interest test is easily met but the Director of Public Prosecutions would also have to be satisfied that there is a realistic prospect of conviction before charges could be authorised.

A search of the internet shows that a number of people have called for a corporate manslaughter prosecution. I suspect this is partly because they are rare and an incident of exceptional gravity seems to call for it and partly because it sounds serious. It is argued that it is high time that corporate entities were held to account.

In theory, this is understandable. Many feel that corporate bodies are remote from everyday people and that they make their profits with little regard for their social responsibilities. There’s a problem though, and it has to do with who can be held responsible, the available penalty and who pays it.

Corporate Manslaughter and Corporate Homicide Act 2007

The offence is created by S.1 of the Corporate Manslaughter and Corporate Homicide Act 2007. The first thing you notice about that section is that, although it is triable only on indictment (in the Crown Court), the available penalty is a fine. What? Just a fine? That’s right, it is a corporation after all and you can’t lock a corporation up. The only effective measure against it is to remove money (S.1(6) ) or to make a remedial order to ensure specific steps are taken (s.9).

It is hard to imagine that this would satisfy those who feel that heads must roll and, moreover, it creates more problems than it solves. If a public body is at fault, paying a fine removes funding from the public who need it most. Even with a private company, it is the owners (shareholders) that suffer, not necessarily those at fault. Don’t care about shareholders? You should, your pensions are reliant upon stock prices.

The other difficulty is that there are restrictions on those organisations that can be held accountable. Military activities (S.4), Policing and law enforcement (S.5), responses to emergency situations (S.6) and child protection functions (S.7) are all excluded. Moreover, things done ‘in the exercise of an exclusively public function’ are also excluded in certain circumstances (S.3).

Gross negligence manslaughter the better option?

Perhaps better, then, to consider gross negligence manslaughter against an individual or series of individuals. I have often thought that, say in the financial world, those at the top consider fines to companies as being part of the risk to be factored into a particular deal. If the balance of risk is in favour, why not press ahead? The Libor prosecutions and, more recently, the decision to prosecute those at the top of Barclays is far more likely to send a collective shiver through corporate Britain. If directors understand that at each stage in their business they might be held criminally liable for their actions, they are more likely to behave responsibly.

Corporate Manslaughter might be what everyone wants to hear but Gross Negligence Manslaughter would be a more effective tool, if the evidence backs it up.