Chapter 16: Arconic - evidential matters

Chapter 16: Arconic - evidential matters

¶16.1 As the chairman found in the Phase 1 report,¹¹ Phase 1 Report Volume I, paragraphs 6.11 to 6.16. the rainscreen panels used on the external walls of Grenfell Tower were aluminium composite material (ACM) with a polyethylene (PE) core. They acted as a source of fuel and were the principal reason why the fire spread so rapidly up, down and around the building.²² Phase 1 Report Volume I, paragraph 2.13(a). The material, which consisted of a 3mm sheet of polyethylene bonded between two 0.5mm sheets of aluminium,³³ Phase 1 Report Volume I, paragraph 6.12. was manufactured in France and sold in the UK by Arconic Architectural Products SAS ("Arconic")⁴⁴ Previously called Alcoa Architectural Products. under the product name Reynobond 55 PE.

¶16.2 Arconic sold Reynobond in the form of flat panels with a view to their being cut to size and fixed to buildings in one of two ways. Riveted fixing, as the name suggests, involved fixing a flat panel of an appropriate size and shape to an underlying frame with rivets. Cassette fixing involved scoring and folding the material into an appropriate shape and hanging it on concealed rails. In either case any necessary cutting, drilling or folding was carried out by a specialist fabricator. In this case Arconic sold the material to CEP Architectural Facades Ltd (CEP), a specialist fabricator, which made it into cassettes and sold it to Harley for installation as a protective rainscreen for the facade of Grenfell Tower. The colour was described as Smoke Silver Metallic Gloss 5000.

¶16.3 Reynobond 55 PE ACM panels were marketed in this country from early 2008 until after the Grenfell Tower fire with the support of certificate number 08/4510 issued by the British Board of Agrément (BBA) on 14 January 2008.⁵⁵ {BBA00000047}. Arconic provided a copy of the certificate to Harley on 23 April 2014 specifically to support the use of Reynobond panels on the exterior of Grenfell Tower and Harley in turn passed it on to Rydon and Studio E.⁶⁶ {RYD00003932}. Although Arconic did not itself cut or shape the panels for either of the fixing systems, the panels were subjected to fire performance tests only in their fabricated form and the BBA certificate applied to the panels in a fabricated form. We have seen no evidence of any fire performance testing to British or European standards of Reynobond 55 PE in the form in which it left Arconic's factory and we are not aware of the existence of any BBA (or other) certification of Reynobond 55 PE in its unfabricated form.

¶16.4 As the chairman concluded in the Phase 1 report, the external walls of Grenfell Tower did not comply with functional requirement B4(1) of the Building Regulations in that they did not adequately resist the spread of fire over the walls.⁷⁷ Phase 1 Report Volume I, paragraph 26.6. In this Part of the report we examine the history of Arconic's fire safety tests on Reynobond 55 PE, what Arconic knew about the results and how that product came to be sold in this country at the time it was specified and supplied for use on Grenfell Tower. However, before we turn to the principal events in the later chapters in this Part it is necessary to say something about the process by which we obtained evidence from Arconic. That is because that evidence was materially incomplete.

The French Blocking Statute

¶16.5 In January 2018, DLA Piper, Arconic's solicitors, wrote to the Inquiry to raise the issue of Article 1 bis of French Law No. 68-678 of 26 July 1968 (as modified in 1980), which is more commonly referred to as the French Blocking Statute ("the FBS"). That is a French law which provides:

"Subject to international treaties or agreements and applicable laws and regulations, any individual is prohibited from requesting, seeking or disclosing, in writing, orally or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature, with a view to establishing evidence in foreign judicial or administrative proceedings or in relation thereto."

¶16.6 Article 3 imposes criminal sanctions for breach of the statute, which is punishable by a maximum of six months' imprisonment or a fine or both. It extends to both natural and legal persons.

The gathering of documents and witness statements

¶16.7 Arconic asserted that the statute prevented it from disclosing a large number of relevant documents to the Inquiry. It suggested that the Inquiry should try to reach an agreement with the French government to waive the prohibition imposed by the statute. Without conceding that the statute had the effect for which Arconic contended, in April 2018 the Solicitor to the Inquiry confirmed that there was no objection to Arconic's representatives contacting the competent French authorities with a view to facilitating a discussion between the Inquiry and representatives of the French Ministry of Justice.

¶16.8 Arconic was also content that the Inquiry should work with the Metropolitan Police Service to see whether a mechanism could be found to obtain relevant documents through the concurrent criminal investigation in a way that allowed them to be shared with the Inquiry. The Inquiry team thereafter worked closely with the police to assist them in obtaining witness statements and a significant volume of relevant documents.

¶16.9 In 2017 and 2019, the police obtained two European Investigation Orders, which enabled them to obtain relevant documents held by Arconic at its offices at Merxheim, France and to obtain witness statements from its employees. The documents and witness statements were then disclosed to the Inquiry by the police. Arconic's solicitors appear to have co-operated with the police in the preparation of witness statements and the police assisted the Inquiry's investigations by putting to witnesses questions proposed by the Inquiry and by obtaining further witness statements and documents and disclosing them to the Inquiry.

Obtaining evidence from Arconic's employees

¶16.10 On 25 November 2019 the Inquiry indicated that it proposed to call six current or former employees of Arconic to give evidence, three of whom were resident in France (Claude Wehrle, Claude Schmidt and Gwenaelle Derrendinger), one of whom was resident in Germany (Peter Froehlich) and two of whom were resident in the United Kingdom (Deborah French and Vince Meakins).

¶16.11 In May 2020, Arconic told the Inquiry that it would reconsider the applicability of the French Blocking Statute to the oral evidence of those witnesses in light of the decision by the Attorney-General to extend to legal as well as natural persons her undertaking that those who gave evidence to the Inquiry would not have their evidence used against them in any future prosecution in this country.

¶16.12 In early June 2020, however, Arconic's solicitors again asserted that the evidence of the witnesses whom the Inquiry wished to call would engage the French Blocking Statute. Those witnesses included Deborah French, Vince Meakins and Peter Froehlich, even though they were not resident in France. They suggested that the Inquiry should seek the help of Her Majesty's Government to reach an agreement with the French Government in order to overcome the constraints of French law. As a consequence, the Inquiry sought the assistance from the Foreign, Commonwealth and Development Office to explore the possibility of an agreement between Her Majesty's Government and the French Government that would permit the witnesses to attend to give oral evidence to the Inquiry without risk of prosecution in France.

¶16.13 Those discussions took a number of months and resulted in a note verbale of 7 December 2020 from the French Embassy to the Foreign, Commonwealth and Development Office, a copy of which was received by the Inquiry on 8 December 2020, which stated that it was the opinion of the French government that the proceedings of the Inquiry did not appear to fall within the scope of Article 1 bis of the French Blocking Statute and that consequently the French authorities did not consider that it constituted an obstacle to the examination of Arconic's employees before the Inquiry. However, the note verbale also said that the statute did not confer any power on the French administration to remove a prohibition thereunder, and that the French courts alone had authority to interpret the criminal law. The note verbale did not go so far as to confer immunity from prosecution under the statute on Arconic's witnesses because the French government said it had no power to provide that. Accordingly, although Arconic's witnesses would have the protection of the Attorney General's undertaking in relation to the use against them of their evidence in a prosecution in England, they would not have the benefit of any protection in respect of a prosecution in France under the French Blocking Statute, which might be infringed by the giving of any information, whether it incriminated the witness or not.

¶16.14 Arconic disputed the position taken by the French Government in the note verbale and relied on an opinion it had obtained from an eminent French lawyer and a senior member of the Paris Bar, Maitre Noelle Lenoir.⁸⁸ {ARC00000793}.

¶16.15 It was not possible for the chairman to decide at that stage whether witnesses who gave evidence to the Inquiry might expose themselves to a real risk of prosecution under the French Blocking Statute. He therefore decided that in the first instance orders for their attendance to give evidence should be made. Notices under section 21 of the Inquiries Act 2005 were duly served on Deborah French and Vince Meakins within the jurisdiction. They instructed solicitors, accepted service of the notices and duly attended to give evidence without challenge.

¶16.16 Mr Wehrle, Mr Schmidt and Ms Derrendinger all live in France. Mr Froehlich lives in Germany. The position in relation to them was rather different because, having taken legal advice, the chairman was satisfied that no legal mechanism existed to compel their attendance in this country. They were all asked to attend to give evidence voluntarily, or to give evidence by video-link from abroad, but with the exception of Mr Schmidt, who gave evidence by video-link from Merxheim on behalf of Arconic rather than in a personal capacity, none of them was willing to do so, relying on the advice of their lawyers and the existence of the French Blocking Statute. It is regrettable that in the face of a disaster in which so many people died they were willing to put the debatable requirements of French law above the interests of the survivors in discovering the true cause of their terrible experience. As a result, we were deprived of the opportunity to hear from Mr Wehrle, Mr Froehlich and Ms Derrendinger but we had their witness statements, the contemporaneous documents and the oral evidence of the other Arconic witnesses. Mr Schmidt initially demanded that he be allowed to give evidence only on certain conditions relating to its use, but he eventually dropped that demand and gave oral evidence in French by video-link through interpreters.

¶16.17 The most important by far of the absent witnesses was Claude Wehrle. As will become clear, there are many questions on which his assistance would have been of very great help to us in understanding the documents or the things he said (or chose not to say) in his witness statement, but we are satisfied that even without the benefit of hearing from him the contemporaneous documents enable us to reach clear conclusions with a high degree of confidence.