Amnesty for Grenfell Casualties More Important Than Prosecuting Illegal Residents

Below Sailesh Mehta, a Barrister and Head of the Fire Law Group at Red Lion Chambers, discusses the Grenfell tower amnesty, the disputes surrounding and what could be one of the biggest inquiries of our time.

In the early hours of 14th June 2017, one of the UK’s deadliest fires swept through Grenfell Tower. The 24-storey block housed about 350 people in about 130 flats. The fire raged for many hours and reached temperatures that were high enough to melt everything on many floors, the temperature reaching 100 degrees Celsius. The current death toll is 80 and is likely to rise.

A small number of residents were immigrants without a right to remain in the UK. Some had unlawfully sub-let their flats to others. Because these residents were fearful that they or their families would get into trouble with the police, immigration authorities or with the local authority, they were not forthcoming in assisting the police and fire brigade to build up a picture of the casualties.

It should have been a relatively easy task to draw up a list of all residents to ascertain numbers in the Block. The above factors made the task almost impossible. As a result, the local authority and Government acted relatively swiftly to offer amnesties: an amnesty from prosecution sub-letters; a limited amnesty for survivors who contact the Home Office will be given up to a year’s temporary leave to remain in Britain.

The Government has justified both amnesties on the grounds of public policy – that the public policy imperative in getting to the true number of casualties (and in ensuring they receive the help they need) is greater than the public policy consideration of punishing those who break the law. The DPP has confirmed she will not prosecute anyone who comes forward and admits offences in these circumstances. While there are purists who have criticised this approach, the majority of commentators have supported the initiative. In fact, the Shadow Home Secretary Diane Abbott MP believes the 12-month immigration amnesty do not go far enough. For the amnesty to be “truly effective,” she believes it should have no time limit.

Amnesties such as those for Grenfell survivors are not unusual in the UK and have been utilised to great effect in other parts of the world. In South Africa, the Truth and Reconciliation Commission ensured that in appropriate cases, amnesty (subject to conditions) was granted even for the most horrendous crimes, to ensure the greater cause of restorative justice. El Salvador, Guatamala and Haiti are also beneficiaries of UN brokered deals which have used amnesty as a tool for towards a peaceful solution to conflict. Such amnesties have not been without problem, and are often criticised by human rights groups, who fear an erosion of the rule of law.

In Northern Ireland, amnesties on both sides of the divide were regularly used as implements to get to the truth (for example, The ‘Bloody Sunday’ Inquiry) as well as tools to overcome roadblocks on the path to The Good Friday Agreement.

The European Court of Human Rights has not had much opportunity to adjudicate directly on amnesties. In Tarbuk v Croatia, the Court held that the State is justified in enacting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public. This restates the finding of the European Commission’s admissibility decision in Dujardin and Others v Franc.

The Grenfell Inquiry is in the early stages of being set up. It is likely to be one of the most important inquiries of recent times. It is already in difficulty with the local community, whose representatives have complained of a lack of trust in the Inquiry team and the process generally. If the Inquiry is to get at the best approximation to truth, it will need to ensure the residents and their families cooperate with it. The Inquiry will need to re-visit amnesties as a broad range of individuals and companies are likely to seek immunity from prosecution. The Inquiry will be slow to extend any immunity beyond the survivors.