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Corporate manslaughter – protecting the guilty

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The Metropolitan Police announcement that they may bring corporate manslaughter charges over the Grenfell fire should be treated with a large dose of caution.

While The Corporate Manslaughter and Corporate Homicide Act 2007 was introduced ostensibly to deal with major incidents like the Grenfell fire, in practice it has had almost the opposite effect.  As Steve Tombs and David Whyte point out:

“The fire at Grenfell seems exactly the kind of disaster which the Act was introduced to deal with. Yet in almost ten years since it was introduced, the convictions average at only two per year, and none of those cases involved large organisations.

“In fact, following the deaths of six people at the Lakenal tower block in 2009, the CPS eventually decided against pursuing a case of corporate manslaughter against Southwark council, despite the fact that the Council ‘knew the building posed a fire risk but did not act and had not carried out a fire risk assessment.’”

The 2007 Act expressly excludes charges against individuals.  Something that the Justice4Grenfell group raise concerns about:

“Corporate entities don’t make and enact policies, people do and for that reason, J4G wants to see individuals named, charged and put on trial in addition to the corporate manslaughter charges. It’s not a case of either one or the other for justice to be done and to be seen to be done, we want both.”

However, according to Tombs and Whyte, in legal circles corporate manslaughter charges are accepted as a means of avoiding individual prosecutions:

“In five of the 21 convictions under the Act so far, the prosecution was accompanied by or as a result of charges of gross negligence manslaughter being dropped against an individual company director and then a guilty plea being entered for the company.

“This has led some legal commentators to refer to the threat of charges against individual directors being the ‘bait’ for a corporate manslaughter charge, on the basis that ‘an offer from… the company to plead guilty in exchange for the prosecution dropping charges against individuals might look like an attractive one to a director facing a risk of prison.’

“In effect, one form of liability is being exchanged for another.”

At this stage we can only speculate as to the charges that will be brought and the evidence that will be presented over the Grenfell fire.  What we do know, however, is that the bar for securing a corporate manslaughter conviction is very high indeed.  As Felicity Gerry QC explains:

“There will need to be evidence about what systems were in place at any relevant organisation, whether it was the failure of those systems which caused the deaths and whether the operation of those systems amounted to a gross breach of that duty of care owed by the relevant organisation to the deceased. When considering any breach of a duty of care under this legislation, there will be a focus on the way in which any relevant organisation’s activities were managed and organised. It may well be that there is more than one organisation involved which will need an assessment of contribution. These things are never simple.”

Duty of care in this instance will be clouded by a provision in Section 3 of the 2007 Act that applies to democratically elected bodies like Kensington and Chelsea Council:

“(1) Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests) is not a “relevant duty of care”…

This serves to exclude political cost-cutting decisions.  As Senior Law Lecturer Ioannis Glinavos explains:

“If the defendant is a public authority, exemptions may apply to decisions about public policy. For example, strategic funding decisions and other matters involving competing public interests, cannot be challenged in criminal proceedings. But decisions about how resources were managed are not exempt, which means that deliberate under-investment in maintaining safety could lead to prosecutions.”

It is likely, therefore, that the case for corporate manslaughter would have to involve failures of management at a lower level than the elected members.  In this case, a principle set out in the Cardiff Judgement that followed the severe flooding in 1979 may apply.  This was that as a democratically elected body, the Council was free to set policy.  However, as paid officials, the Council officers were bound to follow the procedures decided upon by the elected members.

However, one way in which a Council can avoid the actions of senior officials resulting in a prosecution for corporate manslaughter will be to cast the net of potential responsibility as widely as possible. Kensington and Chelsea Council and the Tenant Management Organisation’s (TMO) lawyers will no doubt be preparing their case against the various contractors involved in the maintenance and renovation of Grenfell tower.  They, for their part, will be arguing some variant of “we were only obeying orders.”  This is likely to set up a kind of circular firing squad in which each of the organisations and individuals potentially culpable for the deaths in Grenfell tower will seek to blame the others.

Even if a duty of care can be established, the negligent breach of that duty must be considered “gross.”  If Grenfell cases get to court, this will be a particular focus of contention because the definition of “gross” is effectively a tautology – it is a crime if a jury believes that it is a criminal breach of a duty of care.  For the most part, case law around gross negligence manslaughter (the definition that applies in corporate manslaughter cases) has evolved in just two areas – motoring and medical negligence.  In both cases, juries have a yardstick against which to measure the degree of the alleged negligence.  What would a reasonable driver have done in the circumstances?  What would a suitably qualified medical professional have done in the circumstances?  In the case of the Grenfell fire it may prove much harder to establish the point at which accepted practice becomes negligent, or where negligence becomes criminal negligence.  For example, fitting flammable cladding to the building may not amount to gross negligence if it turns out that Councils across the UK had done exactly the same thing.

The broader point – alluded to by Tombs and Whyte – though, is that Britain has a particularly poor record when it comes to delivering justice to the victims of corporate killings.  The long wait for justice on the part of the Hillsborough and Bloody Sunday families may be the most notorious of these.  But they got – albeit delayed – inquest and inquiry verdicts and, in the case of Hillsborough, the prosecution of the police officer in charge of the disaster.  Other victim/survivor groups from a string of disasters like the Herald of Free Enterprise sinking (where the case against the directors was thrown out by the judge) have watched while people far lower down the pecking order were served up as scapegoats while those in charge of the respective corporations walked away scot-free.

The stark reality is that any guilty verdict in a corporate manslaughter case against the organisations that delivered the Grenfell fire will make legal history.  The sheer size of the Council and the TMO is an order of magnitude greater than the handful of sole traders and small businesses that have so far been successfully prosecuted under the 2007 Act.  As Christopher Sargeant observes:

“Notwithstanding this initial success, given that the purpose of the Act is to ensure that ‘companies responsible for loss of life can properly be held accountable in law’ and to further embed a health and safety culture into workplaces in the UK, its long term outlook appears less bright. Whilst superficially the Act seems to achieve considerable success in throwing off the shackles of the pre-existing legal rules in this area and introduces a potentially wide reaching offence, the devil is, as ever, in the detail. A more subtle examination reveals an array of unsatisfactory restrictions, qualifications and artificial barriers placed upon the new offence accompanied by an overly limited sentencing policy that will likely result in it ultimately making merely ‘a symbolic statement about corporate responsibility, which it will struggle to fulfil in practice’.”

It is tempting to suggest that the decision to go down the corporate manslaughter route is a deliberate stitch up – ensuring that individuals are off the hook by heaping the blame onto an amorphous corporate entity.  This may be premature.  However, it is also worth considering that even if the Council were found guilty, it is hardly about to be bundled into the back of a van and hauled off to the nearest jail.  Rather, it would face a fine, the means of payment of which would be entirely at the discretion of the elected members.  They could, of course, choose to pay the fine out of their allowances, or deduct it from the salaries and pensions of senior officers.  But it is far more likely that they will simply add it to the Council Tax bill or cut it from one or more of the services it delivers.  Indeed, it is even possible that any fine that was imposed could be added to the rents of the Borough’s social housing tenants.  In effect, making the victims and their neighbours foot the bill.

If the history of previous disasters is anything to go by, the sad truth is that the victims and survivors of the Grenfell fire may never get justice.  Corporate manslaughter charges against large and bureaucratic organisations have never succeeded, and the one (medical negligence) case brought against a public body – Maidstone and Tunbridge Wells NHS Trust – was dismissed by the judge because the prosecution was unable to make a case against it.

It is possible that criminal charges against lesser actors – perhaps a contract electrician or a site supervisor – will succeed.  But this will leave a bitter taste if those further up the hierarchy walk away unscathed.

Justice of a sort may come through the civil case that will inevitably follow.  However, it is unlikely that evidence will ever be presented before a civil court for the simple reason that the Council, TMO and/or any other organisation involved will admit civil liability and make an out of court settlement.

Far from resulting in justice, corporate manslaughter charges over the Grenfell fire are more likely to confirm what we already knew – not only do corporations kill people… they get away with it too.

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