Why is no-one being prosecuted for the CTV building collapse tragedy?

Thursday, 30 November 2017

Police will not prosecute the engineers over the collapse of Christchurch's CTV building, which killed 115 people in the February 2011 earthquake. (Video first published in November 2017)

ANALYSIS: After six years, four investigations and millions of dollars, no-one will be held criminally liable for the collapse of Christchurch's Canterbury Television (CTV) building in the February 22, 2011 earthquake.

Police announced on Thursday that, after a three-year investigation into the tragedy, they would not be pursuing a prosecution. They had looked closely at laying charges of negligent manslaughter against Alan Reay, the principal of the company that designed the building, and David Harding, the engineer who did the work, but decided their case was not strong enough.

'We have to establish that we're likely to achieve a conviction and all of the legal opinions that we got and the police recommendation was that we were unlikely to get [that],' Detective Superintendent Peter Read said.

Six years, four investigations, millions of dollars and no charges. Why's no-one accountable for the CTV building collapse tragedy?

'If I'd taken my heart's advice, we would have prosecuted. But I can't take my heart's advice, I have to use my head.'

**READ MORE:

Detective Superintendent Peter Read, left, and Canterbury district commander Superintendent John Price at a press conference about the police's decision not to charge anyone over the collapse of the CTV building.

* Police will not prosecute over CTV collapse

* Special Investigation: Why did the building collapse

Police looked closely at laying charges of negligent manslaughter against Alan Reay, the principal of the firm that designed the building, Alan Reay Consulting.

* When you get it wrong publicly

* CCTV building engineer Alan Reay still deeply anguished

Jane Grant was nurse at The Clinic in the CTV building. Her husband, Murray, is 'disgusted' no-one will be charged.

* What it was like for the CTV survivors**

Detective Superintendent Peter Read and Canterbury District Commander Superintendent John Price discuss the police decision not to prosecute over the collapse of the CTV building.

A rigorous legal process and an empathetic police boss will be little comfort to the families and friends of the 115 people who died in the building during the magnitude-6.3 tremor.

'I'm quite disgusted,' said Murray Grant, whose wife Jane Grant died in the collapse.

'It's just not right that such a catastrophe can happen and the people involved can get away with it.'

THE CASE FOR AND AGAINST

Police also considered charging David Harding, the engineer who did the work.

The police investigation came after a royal commission of inquiry found in 2012 that the CTV building should never have been granted a building consent. Structural flaws in its design meant it did not meet code requirements of the day and was unable to withstand the shaking of the February 2011 earthquake. Harding and Reay were responsible for those flaws.

The decision for police was whether or not the shortcomings by the two men amounted to a viable prosecution case of criminal behaviour, and the answer, to put it mildly, is not straightforward. Police, their engineering experts and, to a lesser extent, the Christchurch Crown Solicitor, thought that it did. Crown Law thought it did not.

The Canterbury Television (CTV) building prior to the February 2011 earthquake.

The decision hinged on two points: Was there enough evidence? And did the law even allow for such a prosecution so long after the fact (the building was designed and built in the 1980s)?

On point one, the bar was set high.

Read said on Thursday the only charge police pursued was negligent manslaughter. Criminal nuisance was considered, but discarded as too difficult to prove and belittling of the seriousness of the disaster. Manslaughter required proving Reay and Harding's conduct was a 'major departure' from what should have been expected of them in designing the CTV building. This wording was crucial: No-one disagreed that their work was substandard, it was a matter of the degree.

On this point, Crown Law wasn't convinced. Because the case was a question of incompetence and inexperience by Harding and Reay, rather than deliberate risk-taking or rule-flouting, 'major departure' was hard to prove.

'We think the case for negligence is clear,' it said in its advice to police, 'the case for major departure much less so.'

The police and Christchurch Crown Solicitor opinions relied heavily on expert advice from engineering firm Beca. It found that Reay's failure to properly oversee the inexperienced Harding and Harding's substandard design amounted to 'a major departure from the expected standard'. Crown Law however, cautioned that Beca's opinion was 'expressed in somewhat conclusory terms'.

There were myriad issues surrounding the collapse including the design, remedial work on the building, the severity of the February earthquake, cumulative aftershocks and there was by no means a consensus on them. Other experts could take a different view on any number of issues, making a difficult case even harder to prove.

'It is not 'Trial by expert',' deputy Solicitor-General Brendan Horsley said.

'A key difficulty for the prosecution would be in proving the CTV building would not have collapsed in the absence of the identified design errors.'

The second point related to a legal technicality only flagged in the final months of the police investigation. The law says that any death resulting from negligent conduct must occur no more than one year and one day after that conduct ended. Crown Law was of the view that Reay and Harding's conduct, negligent or otherwise, ended in 1986 when design work finished, and arguing around that would be tricky.

It seems illogical. How many buildings collapse within a year of design work finishing? Many aren't even built by then. Crown Law noted the rule was an 'anomalous anachronism' and had been abolished in many countries.

'It is noted that despite recommendations in the past for its repeal, this has not yet occurred … The present case illustrates why reform is needed.'

Despite the police desire to prosecute, and favourable opinions from Beca and the Christchurch Crown Solicitor, Crown Law's view prevailed.

Crown Solicitor Mark Zarifeh urged police to 'think long and hard before deciding to prosecute in the face of that advice'. On Thursday, Peter Read's head was firmly in command of his heart.

'Following appropriate legal advice and lengthy discussion,' he said.

'We all came to the conclusion that we hadn't met that standard of evidential sufficiency that we needed to.'

Law and order are in agreement. Many of the victims' families are not. Like everything else with the CTV tragedy, it is an unsatisfying conclusion, plagued by what-ifs. One hundred and fifteen people deserve better.