Nancy Collins and Natalie Sedacca
The fire at the Grenfell Tower block on 14 June 2017 was the type of appalling tragedy that no-one would expect to happen in one of world’s richest countries in the 21st century. A 24-floor tower block in North Kensington, West London was destroyed by a blaze that started in one of the flats. At the time of writing, 80 people have been confirmed dead but local residents believe the real numbers are likely to be significantly higher. Shortly after the fire it emerged that a local residents’ association had raised safety concerns in early 2016, which included the chilling premonition: ‘It is a truly terrifying thought but the Grenfell Action Group firmly believe that only a catastrophic event will expose the ineptitude and incompetence of our landlord, the KCTMO, and bring an end to the dangerous living conditions and neglect of health and safety legislation that they inflict upon their tenants and leaseholders.’
In light of these issues it is essential that bereaved families, survivors, local residents and the wider public are provided with full and prompt answers about the causes of this catastrophe and that swift action is taken to prevent similar future tragedies. This article explores the distinctions and between public inquiries and coroners’ inquests, their relationships to each other and to criminal proceedings, and the demands that should be made of the public inquiry to ensure maximum accountability.
The best route to accountability
After a visit to the scene on 15 June 2017, at which she was criticised for not meeting any local residents, , Theresa May announced a public inquiry into the fire. That evening, a solicitor appeared on Newsnight arguing against any public inquiry in favour of inquests into the deaths, claiming that ‘you can’t have both, you can only have one or the other, and’ and stating that a public inquiry would by definition prevent bereaved families and survivors from participating.. The following day, petitions sprung up demanding an inquest instead of an inquiry.
Many of the claims made on Newsnight on which these petitions were based were over-simplified and / or misleading. Crucially, while it is true that inquests can involve a jury while public inquiries cannot, it is categorically incorrect that bereaved families and survivors cannot participate in public inquiries. If anything, the scope for participation is potentially broader at a public inquiry. As noted in a statement by the charity INQUEST, who assist bereaved families and work closely with firms like ours, a public inquiry should allow recognition of civil society groups such as the Grenfell Action Group as ‘core participants’ with publicly funded legal representation, whereas in an inquest such participation would be limited to the families of the deceased.
The Government has announced that a full public inquiry will be held and that funding for legal representation will be granted to victims and survivors to allow them to participate fully. It had initially appeared that victims and survivors will also be given an opportunity to comment upon and frame the terms of reference of the inquiry (but see below). Witnesses will give evidence on oath and participants will have the right to put questions to witnesses. The Government has also announced the creation of an independent public advocate to assist bereaved families in major disasters. The precise role of an independent advocate remains unclear, but that role cannot replace the value of families being legally represented by expert lawyers with experience of representing families in complex public inquiries and inquests.
It should be noted that inquests and inquiries are not necessarily mutually exclusive. Inquests would be formally opened into the deaths in any event, but would then be suspended while any public inquiry takes place. If an inquiry had dealt with all relevant issues the subsequent inquest would probably be a formality, but conversely, if outstanding issues remain the inquests could proceed. As noted by INQUEST, this has happened in the past in cases including Hillsborough, Zeebrugge and the Ladbroke Grove rail crash. Hillsborough is a particularly stark example, as the original inquest returned a verdict of ‘accidental death’, however, a subsequent inquiry led to fresh inquests where the conclusion reached was unlawful killing.
Another pressing issue is the relationship between inquests / inquiries and criminal proceedings. On 16 June MP David Lammy called for arrests for corporate manslaughter. The Metropolitan Police have responded to confirm that they are investigating criminal offences, including manslaughter and health and safety and fire safety offences. In order to convict an individual of a criminal offence it would be necessary to prove an offence beyond reasonable doubt, and charges will only be brought where there is a reasonable prospect of conviction. If there is already enough evidence to meet this standard, then criminal charges should be brought immediately without awaiting the findings of any public inquiry or inquest. Any inquest would usually be put on hold until the criminal proceedings had concluded. However, a public inquiry can potentially be separated into different stages, so that at least the most urgent parts of its work could proceed immediately.
Moreover, if the Crown Prosecution Service were to find that there is not enough evidence to prosecute at this stage, the decision and the issue of health and safety prosecutions could be revisited after a public inquiry and / or inquest. An inquest cannot determine whether someone is guilty of a criminal offence, or whether they are liable (responsible) as a matter of civil law. If an inquest reaches a conclusion of unlawful killing, this can lead to criminal charges subsequently being pursued, as happened in relation to the death of Ian Tomlinson. However, damning findings in a public inquiry could equally assist in the bringing of criminal charges. Such findings are arguably more likely to emerge from a public inquiry than an inquest, since witnesses giving evidence at an inquest are entitled to refuse to answer questions where this could be incriminating. Although some have argued that a public inquiry would cause more significant delay, an inquest involving numerous bereaved families is also likely to be very lengthy – indeed, the renewed Hillsborough inquests involved 267 days of evidence, making it the longest case heard by a jury in English legal history.
What should we demand of a public inquiry?
It is imperative that the interests of victims, survivors and other individuals or organisations with an interest in the outcome are placed at the heart of the inquiry process. Just as Hillsborough showed the interplay between inquiries and inquests, it also dramatically demonstrated the tendency of authorities to deny and cover up wrongdoing. This must not be allowed to happen in the Grenfell case. London Mayor Sadiq Khan was correct to state that any suggestion of undue influence must be avoided and that the inquiry should act swiftly in relation to issues including the immediate causes of the fire and the role of the local authority and tenant management, publishing an interim report this summer, followed by a second stage focused on recommending measures to avoid the repetition of such a tragedy. As veteran Hillsborough barrister Michael Mansfield has argued, it should also address the adequacy of the response, which many observers on the ground have described as woefully poor.
The success of any inquiry in addressing the concerns of victims and survivors and other key individuals and organisations will depend upon the extent to which their voices are heard and responded to. It will be dependent upon early, full and frank disclosure of relevant documentary evidence and prompt action being taken to interim findings. Its findings must be published with those at fault being identified and held accountable. Above all those responsible for the inquiry must secure the confidence and trust of the victims and others, a task which will be difficult to achieve in light of the justifiable anger and distress that is felt by those who repeatedly voiced their concerns before the tragedy and whose concerns were disregarded and ignored.
It is therefore extremely concerning that the judge appointed to chair the inquiry, Sir Martin Moore-Bick, has already suggested that the inquiry’s terms of reference will be limited ‘to the problems surrounding the start of the fire and its rapid development’. Making an announcement of this sort without any consultation with the bereaved, survivors and local residents indicates an unhelpful and dismissive approach to much broader concerns, and have led those affected to consider boycotting the inquiry. In the circumstances, it is to be hoped that the position as currently indicated by Moore-Bick will be changed promptly and that the future conduct of the inquiry will be far more responsive to the needs of those affected.
Nancy Collins is a Partner and Natalie Sedacca is a Senior Associate (@nataliesedacca) in the Civil Liberties team at Hodge Jones & Allen LLP (@hjacivillibs).