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Grenfell Tower: was the cladding really banned material?

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So, was London’s Grenfell Tower, scene of a horrific fire that killed dozens of people, covered in “banned” flammable cladding?   The  answer – worryingly – is probably no. And if that is the case, it exposes the shocking flaws in Britain’s regulatory system for high-rise developments.

The Department of Communities in initially answering this question – before any tests were made on the actual material – said this: “Cladding using a composite aluminium panel with a polyethylene core would be non-compliant with current Building Regulations guidance. This material should not be used as cladding on buildings over 18m in height.”

But this is not the case. Such cladding – described officially as “material of low combustibility” (MOLC) is lawful and recommended above 18 metres, as is the more fire-resistant cladding described officially as “non-combustible”. Composite aluminium panel with a polyethylene core may well meet the standard as MOLC. So, as long as the suppliers didn’t do some sort of substitution with inferior stuff, such panels are lawful.

This is what the government Building Regulations Approved document B of 2010 vol 2 actually say:

12.5 The external envelope of a building should not provide a medium for fire spread if it is likely to be a risk to health or safety. The use of combustible materials in the cladding system and extensive cavities may present such a risk in tall buildings.

This gives a hint of the rather vague regulatory framework that applies to materials in buildings – almost a statement of the obvious, leaving suppliers, builders and inspectors simply to do their best to ensure safety. As to cladding for high-rise blocks, the document goes on to say:

Insulation Materials/Products
12.7  In a building with a storey 18m or more above ground level any insulation product, filler material (not including gaskets, sealants and similar) etc. used in the external wall construction should be of limited combustibility (see Appendix A)
.”

So this is where DCLG got it’s 18 metres from. But by no means is this a ban on the sort of material (probably) used on Grenfell Tower. Indeed “limited combustibility” is the standard for this sort of work. The guidelines do not even suggest using the higher standard “non-combustible” material. At B4 (1) (page 91), the document says:

“The external walls of the building shall adequately resist the spread of fire over the walls and from one building to another, having regard to the height, use and position of the building.”

The test used is to apply flames to the surface (not the polyethylene core) of the panels. Here is what a manufacturer of building materials (not those used on Grenfell Tower) has to say by way of explanation of the standard:

“It is important to note that a Surface Spread of Flame Classification does not infer [ie imply] any resistance to combustibility; it is solely a measure of the spread of a flame across the material’s surface.” (Rockwool Ltd, page 4).

Yet that is sufficient to meet the standard. It concludes that for the builder or developer: “The first and by far least restrictive option is to use materials of limited combustibility (MOLC) for all elements of the cladding system that are situated both above and below 18m.”

It is “least restrictive” because in effect it is pre-assessed as being acceptable for this sort of job: it reaches an “EN reaction to fire classification” of A2. Otherwise the developer would have to go through a process of getting clearance for the materials it wants to use from the independent testing body, UKAS (the BS8414 Test which would produce a report showing the BR135 specification has been met – see below.)

So above 18 metres “material of low combustibility” (MOLC) is standard. And, of course, “non-combustible” material could be used too (A1 on the reaction to fire classification). This is the material, that would, according to some news reports, cost only £2 a square metre more than the Reynobond PE aluminium with polyethylene core cladding apparently ordered for Grenfell  Tower.

Suppliers Omnis Exteriors said they were asked for Reynobond PE cladding, which is MOLC. This aluminium composite material (ACM) would have met the standard, designated “Class 0 rating for the surface spread of flame” and the A2 “reaction to fire classification” – accepted as suitable for this use.

Similarly the Celotex RS5000 infill lagging behind the panels, found to be flammable in new tests after the fire, is according to the manufacturers:

“a premium performance PIR insulation board that: Has been tested to BS 8414-2:2005, meets the requirements in BR 135 and the first PIR insulation suitable for rainscreen cladding applications above 18 metres in height; Features Class O fire performance”.

So the Reynobond PE is apparently legal (and presumably the Celotex is too, again on a “low combustibility” basis). But should it be? The material is lab tested for the effect of flames to its aluminium surface, not in situations when it might be broken through to the core or in high temperatures under which the aluminium would burn through.

It certainly should not be legal, according to Phil Barry, managing director of CWB fire safety consultants in Gloucestershire. who told the Guardian:

“We need to do full-scale tests to see how these materials perform in the real world. In a full-scale test, the outside sheet fails, and it exposes the plastic core, which then burns. That’s what causes the problem. We should be saying no combustible materials on buildings above 18m.”

Comment
This whole issue is complicated and no one should think that this post has got to the bottom of those complexities. But it is clear that thinking in terms of a cladding having been “banned” is wrong – and does not begin to address the full issues about Grenfell Tower and all the other such tower blocks with similar issues.

The regulations are composed in “risk to health and safety” terms rather than specifying what is safe and what isn’t. The safety of legal cladding has to be considered in the light of other issues: exits, fire doors, corridors providing (or failing to provide) escape routes, whether fire engines can get there – and the fact that the use people put the buildings to can easily undermine such safety precautions – or the extent to which vulnerable people are housed there. So it is significant that those decanted from Camden flats after the Grenfell Tower fire were asked to move because of suspect gas fittings and faulty fire doors rather than unsafe cladding.

MOLC may be deemed adequate and lawful but only in the context of other issues – creating a mountain of regulatory complexity which explains why tragedies like Grenfell Tower keep happening.

So the regulations (Part B) say:

“0.4 Whilst guidance appropriate to each of these aspects is set out separately in this document, many of the provisions are closely interlinked. For example, there is a close link between the provisions for means of escape (B1) and those for the control of fire growth (B2), fire containment and/or suppression (B3) and facilities for the fire and rescue service (B5) … Interaction between these different requirements should be recognised where variations in the standard of provision are being considered. A higher standard under one of the requirements may be of benefit in respect of one or more of the other requirements. The guidance in the document as a whole should be considered as a package aimed at achieving an acceptable standard of fire safety.”

The Grenfell Tower panels themselves may have been legal ie compliant with the relevant standard – but their use may not have been because of the context in which they were used. The condensation void between the lagging and the panels may have increased the intensity of the fire, for example; there is a suggestion that the creation of corner patterns using the panelling may have been problematic (similarly funnelling and intensifying the flames at that point perhaps?). Were window frames of the right standard? Were the cladding panels slotted together without separators that would have inhibited the flames? Are there sprinklers in place (the regulations added this in 2007: “Sprinkler systems should be provided in blocks of flats exceeding 30m in height”). Is there more than one set of stairs for escape? (In Grenfell Tower the answer is no.)

We can be pretty certain that what happened at Grenfell Tower was illegal – simply because of what happened at Grenfell Tower. It’s a circular logic. The regulations are outcomes-based rather than prescriptive – see 12.5 quoted above: the cladding “should not provide a medium for fire spread if it is likely to be a risk to health or safety”. We know something has gone horribly wrong – but it will be very difficult to establish who is to blame.

Twitter: alrich0660

Note. BBC’s World at One has now established that the Government has ordered that the new tests on cladding around the country should be interpreted to include the polyethylene core in determining whether they are made of “material of low combustibility”, not just the surface. Large numbers of the panels, perfectly legal until now (having passed under BS476), are failing this more rigorous test. (BBC WATO 26 June 2017 at 19.30 minutes.)

So this raises a significant financial issue: who should pay for removing what was legal cladding and putting up the new material: councils, who have paid millions to clad their buildings already? Tenants – many of whom will be right to buy long leaseholders who have also contributed to cladding previously – will they be stung for the upgrade too? Or the Government, which seems clearly to have botched the whole regulatory scheme from the offset?

Also: experts have criticised the new government tests that are failing huge numbers of cladding panels, which seem to involve simply setting fire to the polyethylene core and declaring it as failed because it burns (obviously). See the Guardian. The manufacturers of Reynobond PE have withdrawn the material from worlwide sale citing the inconsistency of regulatory regimes (the Guardian).

Materials
Here is a video of a British Standard test for BS 8414 fire performance: Fire test. Note that a whole panel is tested for the external spread of flame. The idea is to test whether a fire breaking out of an opening (such as a window) will result in excessive fire spread up the outside of the building with the fire re-entering at a higher level. The new tests seem to take a piece of the cladding 25 cm2 and burn it, including the exposed polyethylene core – which is why they have been criticised by the industry since they imply vast amounts of cladding will have to be removed..

• This piece from Reuters suggests the Reynobond supplied for Grenfell Tower wasn’t lawful for the building but notes:

“Some safety experts say the regulations are not black and white. The UK uses a ‘principles-based’ approach to regulation which puts an onus on companies to operate safely, based on common understanding of risks and the technology available. This differs to the highly specific ‘rules-based’ approach to regulation taken in the United States. Supporters of the principles-based approach say it avoids the emergence of loopholes and means companies have to take account of new information on risks immediately, rather than wait for a new regulation to be drafted.”

• However a useful piece from Building Design here notes:

“A building over 18m tall must use materials with a classification of B-s3 or better. This suggests both types of Reynobond panel would meet the requirements of Part B for the flammability of external cladding.”

It also says, though, that this is contradicted elsewhere in the regulations where it says over 18 metres it must have a higher rating – A2 or better – which it describes as non-combustible (rather than low combustibility).

• This item describes the European classification system.
This article from Probyn Miers gives a lot of detail on similar high rise fires. It notes:

“In the UK since 2006, under the Regulatory Reform (Fire Safety) Order 2005 (“FSO”), building owners, employers and occupiers have been legally obliged to evaluate fire risk in all buildings other than private dwelling houses.  The FSO is applicable to apartment blocks with common entries, staircases and landings.”

• This from University of Kent Countercurrents suggests social housing has become unmanageable.

Government standards: External fire spread
B4. (1) The external walls of the building shall adequately resist the spread of fire over the walls and from one building to another, having regard to the height, use and position of the building.

External walls
B4.i The construction of external walls and the separation between buildings to prevent external fire spread are closely related. The chances of fire spreading across an open space between buildings and the consequences if it does, depend on:
a. the size and intensity of the fire in the building concerned;
b. the distance between the buildings;
c. the fire protection given by their facing sides; and
d. the risk presented to people in the other building(s)

B4.ii: Provisions are made in Section 12 for the fire resistance of external walls and to limit the susceptibility of the external surface of walls to ignition and to fire spread.

B4.iii Provisions are made in Section 13 to limit the extent of openings and other unprotected areas in external walls in order to reduce the risk of fire spread by radiation

BR135 include the following:
■ External and Internal Fire Spread – determined by a 600ºC rise in temperature on the external/internal face of the building (measured at a point approximately one storey above the fire floor) for thirty seconds or more during the initial fifteen minutes of the test.
■ Mechanical Performance – determined by an assessment of building collapse, spalling, delamination, flaming debris or fire pool.

 

Should veils be banned in court? It’s a question of evidence

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The issue of whether Muslim women should be allowed to wear the veil, niqab or burqa when giving evidence in court is a matter of tiny importance yet, seemingly, of great significance. Tiny because there are so few women in Britain wearing full face coverings for religious reasons, of whom even tinier numbers are likely to give evidence in court.

But court scenarios are where the arguments about veiling (whether or not part of a “national debate”, as per Liberal Democrat minister Jeremy Browne) seem to play well for the veil banners since they can tap into Britain’s great traditions of justice and notions of the fair trial. What they don’t tap into is any actual evidence about how or under what circumstances veil wearing might harm a fair trial.

Judge Peter Murphy has considered this issue in the case of R v D(R) (though stressing his view should not be part of the wider debate) and concluded a defendant should give evidence unveiled. (His full decision is here pdf)

There is some evidence (see below) that doesn’t necessarily support the view that juries pick up important clues from watching the facial features of witnesses, but first the context. Read the rest of this entry

Did Stuart Hall ‘attempt to influence jurors’ in sex abuse case?

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The Lord Chief Justice has left the media, high profile alleged sex abusers and their lawyers in something of a quandary following the up-rating of UK broadcaster Stuart Hall’s prison sentence for 14 sex offences.

Lord Judge in the Court of Appeal criticised a “manipulative” Hall for attempting to influence potential jurors in his public comments reported in the media denying the charges before his eventual admissions in court.

Lord Judge is reported as saying: “Whatever legal advice the offender has been given, he knew the truth. He knew he was guilty of molesting these girls … This deliberate falsehood was a serious aggravating feature because here was an expert in the ways of the media, fully alert to the possible advantage of manipulating the media, at that point hoping to escape justice. He was attempting to use the media for the purpose of possibly influencing a potential juror.”

There has been a long tradition of people accused of offences denying in no uncertain terms any guilt before they come to trial and a tradition of full media reports of those denials – even though pre-trial reporting is, in law if not in practice, severely restricted by sub judice rules (broadly speaking to items such as name of accused, age, address and the charges – but not evidence, confessions). Indeed the media tends to make a practice of ensuring such denials are reported when they are made, even if only tacked to the end of the article. Read the rest of this entry

Iain Duncan Smith needs to put on a new benefits thinking cap

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It seems that Britain’s Work and Pensions Secretary Iain Duncan Smith has solved a conundrum that has baffled and befuddled philosophers for millenia: how do we know what we know? He has cut through the Kant and ditched Descartes for this elegantly simple formulation: “I think, therefore it is”.

This, in sum, is his view of how his welfare changes will pan out; they will pan out just as he thinks they will pan out. Thus, when the Office for National Statistics suggested the figures did not bear out his assertion that the benefit cap of £26,000 would encourage people into work he told John Humphrys on the BBC Today programme: “Yes, but by the way, you can’t disprove what I said either” – a classic response of the sceptic school of epistemology. He went on: “I believe this to be right; I believe that we are already seeing people going back to work who were not going to go back to work.”

He has no evidence; indeed he has been told that the evidence he thought he had was not in fact evidence; but he believes he is right so he must be right.

Others who contradict him, such as Haringey Council in London, are “politically motivated”, whereas Iain Duncan Smith, Tory member for Chingford and Woodford Green and one time leader of the Conservative Party is, of course, not politically motivated.

All this is good news, not least because IDS has also said that his welfare changes won’t lead to people becoming homeless or being driven out of London. He has said it; he presumably believes it; and hence, cogito ergo est: it must be true.

Which is odd, because some of those on whom people rely for their homes, the housing associations of England and Wales, have in effect contradicted Duncan Smith’s position. They certainly believe that the welfare changes will lead them to evict their tenants, and they believe they may have to do it using the much criticised and draconian Ground 8 possession procedure. Read the rest of this entry

Theresa May and the European Arrest Warrant: Assange awaits her decision

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British Tory MPs are furious that the Home Secretary Theresa May has gone soft on the European Arrest Warrant. Among others also annoyed at the UK Government’s U-turn, backing a new version of the EAW, will be Julian Assange – one of the victims of the measure that makes it easier to extradite alleged criminals without too much legal protection in their host countries. Assange, as explained below, might have benefited from a more nationalistic, less Eurocentric extradition regime.

The EAW is one of the 133 European Union law and order measures in the European Union Lisbon Treaty that May opted out of – and also one of 35 she wants to opt right back into, though in a reformed version. The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned by human rights issues. Enfield North MP Nick de Bois for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. (Nick de Bois MP pdf)

Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.

So what exactly are the perceived problems with the European Arrest Warrant? Read the rest of this entry

Saatchi and Nigella: Exactly what offence has been admitted?

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The pictures show Charles Saatchi’s hand around his wife Nigella Lawson’s neck. He has accepted a caution for common assault, but what exactly has Saatchi actually admitted to?

The text books are clear: assault, in law, is not an offence that involves any physical attack on a person or even physical contact. It is a common law offence, sometimes called “psychic assault”, consisting of “an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person”. Collins v Willcock (1984)

More recent case law would seem to agree: “A defendant committed common assault when he did something of a physical kind which caused someone else to apprehend that they were about to be struck.” R v Nelson (Gary) 2013.

This was a case where a punch was thrown but the jury were uncertain that it had landed. The issue was whether a finding of common assault (where no contact can be inferred) could be substituted for the offence of assault by beating. The important point was that the victim apprehended an immediate beating, though fortunately it didn’t occur.

Yet police, prosecutors and presumably victims seem to treat “common assault” as being able to include battery – in other words as if the word assault has the commonly understood dictionary meaning of some sort of physical violence.

The CPS charging standards makes the distinction thus:

An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.

A battery is committed when a person intentionally and recklessly applies unlawful force to another.”

But it also says this: “An offence of Common Assault is committed when a person either assaults another person or commits a battery.” It notes that the only distinction between common assault and causing actual bodily harm (under section 47 of the Offences against the Person Act 1861) is the degree of injury.

Statute, while not defining common assault, distinguishes it from battery (unlawful application of “force” including mere touching) in S. 39 of the Criminal Justice Act 1988:

Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.”

But even in the statute there is confusion as to whether S.39’s distinction applied to S.40(3)(a), where the words “common assault” were used apparently to include battery. In R v Lynsey [1995] 3 All ER 654 it was decided by the Court of Appeal that, indeed, the statute was inconsistent and in effect it was intended (in legal terms) to be inconsistent.

Henry LJ says: “Where the narrow meaning of the phrase ‘common assault’ makes no sense in its context in s.40 and cannot possibly reflect any rational policy, it is entirely permissible as a matter of construction [by the judge], in our view, to prefer the wider meaning of the same phrase, which makes good sense and reflects a rational policy. Draftsmen after all sometimes make mistakes.”

Hence common law assault could be charged as if S.40 applied even though S.39 would seem to restrict the term to to the narrow legal definition of “psychic” assault.

Henry LJ notes: “In the courts, assault has generally become synonymous with battery, that is to say when the word ‘assault’ was used it normally meant the intentional use of unlawful force to another’s person without his consent” – ie the classic legal definition of battery, not assault. The accused was charged with common assault yet he had spat at a police officer – on the face of it a classic battery with unlawful physical (albeit indirect) contact but no particular injury.”

Common assault has therefore become a sort of hybrid offence. “In practice, a common assault applies to an assault, a battery (or both) where relatively slight injury has been caused to the victim, or, depending on the circumstances of the case, where no physical harm at all has been sustained,” according to an article in the Justice of the Peace journal. (Leonard Jason-Lloyd (2004) 168 JPN 748)

‘Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free’ – Henry LJ

So how do we establish what Saatchi has admitted and what he has not? We have seen he had his hand to Nigella’s throat. He said it was “playful” and one might think that couples in intimate relationships might do and consent to such things. But even so his wife might have “apprehended” something less playful, the application of unlawful force without consent. Saatchi would have been guilty of orthodox textbook “psychic” assault.

But if the hand to the throat was the actual act of battery (unlawful, unwanted but not producing injury) then he has conceded to “common assault” in its wider meaning as encompassing the physical act, not just the “psychic” effect. In this case the apprehension came a split second before the clutching at her throat. It was the hybrid “common assault” consisting of assault plus battery rolled into one.

Does any of this confusion matter? If we believe the law should be clear, then yes. One need not worry too much about Charles Saatchi. He had the option of defending himself in court with the finest legal brains money can buy. They could have made much of the assault/battery distinction, about issues of consent or apprehension. But he just wanted to get the press off his back.

But what about all the other people in police custody suites who are being persuaded to accept a caution for “common assault”. Such an acceptance is not a conviction as such, but it boosts police clear-up rates very nicely without too much trouble. Throw into the mix the new “Eddie Stobart law” legal aid system in which franchised legal teams will also have an incentive to see cases off their books as quickly as possible and there is a likelihood of rather a lot of this sort of thing: persuading people to agree they’ve committed an offence the existence and definition of which remains vague and which the courts, the lawyers and the statutes cannot agree on.

Henry LJ said in Lynsey: “Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free.” It hasn’t happened yet but clearly should have happened by now.

Twitter: alrich0660

Background notes Read the rest of this entry

Anti-squatting law and the death of Daniel Gauntlett

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It is six months or so since the passing of a law criminalising trespassing in Britain and already there is – apparently – a tragic victim and – certainly – a nasty political row. The victim is Daniel Gauntlett, a 35-year-old unemployed man who died in the bitter cold on the step of an empty boarded up bungalow in Aylesford, Kent. Reports suggested police had been involved in preventing him breaking in to the house some time previously – “and so Mr Gauntlett, had taken the fatal decision to abide by the law,” according to news service KentOnline.

Campaigners against Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which criminalised squatting in residential property, believe the new law may be responsible for Mr Gauntlett’s death.

Some go further and are pinning the blame directly on MP Mike Weatherley, who introduced the anti-squatting legislation into the House of Commons, a suggestion pursued with unpleasant vigour – hence the controversy.

The claim against him is that he insists squatters are generally young, politically motivated leftists whose aim is to undermine notions of property, whereas here was a bona fide homeless man who died as a result of the new law.

In answer Mr Weatherley told the Kent Argus: “It is true that some of those who are homeless have squatted but this does not make them squatters. Read the rest of this entry

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