de Menezes: No individual prosecutions, but an effective investigation – ECtHR

1 April 2016 by Jim Duffy

This week, the mosaic shrine adorning the wall outside Stockwell underground station once again became the focal point for difficult questions surrounding the police response the terrorist attacks of 2005.

The judgment of a Grand Chamber of the European Court of Human Rights in Da Silva v the United Kingdom draws a line under a long legal battle mounted by the family of Jean Charles de Menezes, the young Brazilian electrician shot dead by the Metropolitan Police on 22 July 2005 having been mistaken for a suicide bomber.

This case was not – at least not directly – about how and why Mr de Menezes was killed, or who was to blame, but whether the investigations that followed his death were effective for the purposes of discharging the procedural duty under Article 2 of the European Convention on Human Rights. It was accepted by the Prime Minister, the Foreign Secretary and the Metropolitan Police within days of the shooting that the police had got the wrong man, but what about the steps that followed? Eleven years on, no police officer has been disciplined let alone prosecuted, and this notwithstanding the conviction of the Metropolitan Police as an organisation for criminal breaches of health and safety over the course of the operation.

Thirteen European judges found there had been no breach of the procedural duty, but there were four loud dissenting voices. The detailed main judgment measures against Article 2 the process around prosecutorial decision-making in England and Wales as well the definition of self-defence under the common law.

Background

Mr de Menezes was killed some two weeks after the 7 July 2005 suicide bomb attacks on the London transport network that claimed the lives of 56 people. On 21 July, police found a series of unexploded bombs on trains and a bus.

As part of the operation to thwart a further attack, surveillance officers from Special Branch were sent during the early hours of 22 July to 21 Scotia Road in Tulse Hill, South London, where two suspects, including Hussain Osman, were thought to reside. The plan instigated by Police Commander McDowell envisaged those surveillance officers being joined by Specialist Firearms Officers (SFOs), but the SFOs were not deployed in time to intercept anyone leaving the property.

Mr de Menezes lived at 17 Scotia Road, which was in the same block as number 21. When he left his flat for work that morning, he was followed by the surveillance officers. Rather than being stopped before he reached the transport network he boarded, alighted then boarded again a bus which eventually took him to Stockwell.

The Metropolitan Police team, now receiving orders from Commander Dick, failed to make a conclusive positive identification at any point, but the suspicion was that the male being pursued was Osman. It was only two minutes after Mr de Menezes passed through the ticket barriers at Stockwell tube station that the SFOs arrived at the scene, ‘Code Red’ having been declared. This meant that those officers were to have ultimate control over the situation and that an armed interception was imminent.

By this time, Mr de Menezes was already on board a train. Witness testimony thereafter was conflicting, but moments later he was killed by two SFOs, who administered a series of gunshots to his head.

Investigations

As is routine, the case was referred to the Independent Police Complaints Commission (IPCC). What was not routine was that the then Commissioner of the Metropolitan Police, Sir Ian Blair, did not hand over the investigation to the IPCC until several days after the tragedy.

The IPCC reported on 19 January 2006 and found that Mr de Menezes had been killed because of mistakes that could and should have been avoided. It made operational recommendations and also identified a number of possible offences that may have been committed. These included murder and gross negligence.

Upon reviewing the case, the Crown Prosecution Service decided not to bring any criminal charges. Of particular concern was that it would in their view be very difficult to prove beyond reasonable doubt that the SFOs who shot Mr de Menezes had not genuinely believed that they were facing a lethal threat in the context of a suspected suicide bomber. The CPS considered that there was insufficient evidence to show that the mistakes made in planning the operation amounted to criminal conduct.

Indeed, in May 2007 the IPCC decided not to pursue any disciplinary action against the officers involved. It considered that there was no realistic prospect of disciplinary charges being upheld.

The Met itself was successfully prosecuted under the Health and Safety at Work Act 1974, partly on the basis of failures to identify Mr de Menezes and to deploy the SFOs in time. This led to a £175,000 fine and the payment of £385,000 in costs. The jury added a rider to its verdict (endorsed by the judge) absolving Commander Dick of any personal culpability.

Mr de Menezes’ family also obtained a confidential settlement in a civil claim against the police. At the inquest, the coroner excluded unlawful killing from the verdicts open to the jury; the options were lawful killing or an open verdict, and the jury returned the latter. The family’s application for judicial review was refused permission.

The issues

The complaint of the applicant, Ms Armani Da Silva, centred on the decision not to prosecute anyone in relation to her cousin’s killing. She alleged that the evidential test contained within the Code for Crown Prosecutors, namely that a conviction be more likely than not, was too high a threshold. This was all the more apparent in cases involving the use of lethal force by state agents.

She also complained that the law of self-defence in England and Wales fell foul of Article 2 in that the authorities were precluded from examining the reasonableness, as opposed to merely the honesty, of the defendant’s belief that the use of force was absolutely necessary.

The Court’s analysis

The key question for the Court was whether the UK had carried out an effective investigation capable of leading to the establishment of the facts, of determining whether the use of force had been justified in the circumstances and of identifying and (if appropriate) punishing those responsible.

The majority considered that the definition of self-defence in England and Wales was not significantly different from that adopted by the Court itself. In England and Wales as in Strasbourg the question was whether the would-be defendant had an honest and genuine belief that the use of force was necessary. The Court’s reasoning then becomes more strained, weaving the subjective with the objective. The majority explained that the reasonableness of the defendant’s belief was relevant to the determination of whether it was honestly and genuinely held. But in any event the real question was whether the investigation considered the reasonableness of their belief that Mr de Menezes was a suicide bomber, and this had been carefully examined over the course of the numerous independent investigations carried out.

Significantly, the Court could discern no uniform standards across the ECHR’s contracting states when it came to the appropriate evidential burden to be used in decisions as to whether or not to prosecute. This was deemed a matter for the state’s ‘margin of appreciation’. The test adopted was not arbitrary, and the Court had been taken to prosecutorial guidance which specifically counselled against the application of a ‘51% or more’ approach that might be said to render it so.

The point had also been made by the Government that in the UK the presence of an effective filter at the prosecutorial stage was particularly important. This was because of a jury system in which the eventual trial judge could only exclude verdicts from the jury in very limited circumstances (see R v Galbraith [1981] 1 WLR 1039). The Court rejected the argument that the evidential test should be lowered where deaths were perpetrated by state agents, there being nothing in its case law to support that proposition.

The majority considered that there had been no violation of the investigative duty. Its focus was on process rather than outcome. The police had quickly acknowledged that Mr de Menezes was not involved in the failed attack a day earlier. It had sent a representative to Brazil to apologise to his family and make an ex gratia payment to cover their financial needs. They were advised to seek independent legal advice, which would be provided at the expense of the Metropolitan Police.

There were multiple investigations by bodies considered independent of the Metropolitan Police: the IPCC, the CPS, the criminal court and the Coroner. It noted that the IPCC took witness statements from some 890 people. Institutional and operational failings had been identified, detailed recommendations made and the Met had been convicted and punished.

The Court concluded:

“The decision not to prosecute any individual officer was not due to any failings in the investigation or the state’s tolerance of or collusion in unlawful acts. Rather, it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to prosecute.”

The other view

Four judges reached the opposite conclusion.

In their joint separate opinion, Judges Karakaş (Turkey), Wojtyczek (Poland) and Dedov (Russia) used international standards on the use of force by the police as their starting point. When it came to self-defence, those standards spoke of strict necessity and unavoidability, not honest belief. They required a meticulous check on all the information on which an operational plan was based:

“Force used in putative self-defence is never absolutely necessary… in our view, Article 2 of the Convention requires the State to criminalise putative self-defence in so far as the factual error was not justified in the circumstances and the perpetrator may therefore legitimately be reproached for it. If acts of killing in putative self-defence based on an unjustified error are not properly criminalised and punished under domestic law, there is a serious danger that the police may use excessive force with lethal effect.”

For those three judges, the Court’s established case law provided that the exemption from criminal liability rested on the presence of two cumulative conditions: a subjective condition (an honest belief which subsequently turns out to be mistaken / actual error as to factual circumstances) and an objective condition (existence of good reasons for which the belief is perceived to be valid at the time / objective grounds for justifying the error). They considered that the majority had erred by “putting the emphasis on the objective element…”.

They also expressed the concern that the evidential test impugned by the applicant gave rise to “a serious risk that borderline cases will escape independent judicial assessment” resulting in “de facto immunity from prosecution.”

The Spanish Judge, López Guerra, added his own separate opinion:

“The starting point for my disagreement with the Grand Chamber judgment is that no individual responsibility was derived from the established fact, acknowledged by the United Kingdom agencies, that there were very serious deficiencies in all aspects of the police operation resulting in Mr de Menezes’ death.”

Comment

Judge López Guerra’s point is indeed troubling. Where, as he says, an “entire operation went wrong”, where there were criminal breaches of health and safety, and where the command structure was both clear and fairly limited in terms of the numbers of personnel involved, it is surprising that such heavy institutional responsibility would not translate into at least some individual responsibility.

That said, the Grand Chamber’s point is that Article 2 concerns itself not with the end but with the means – with the investigation itself rather than its outcomes or lack thereof. One can well see that an opposite, blinkered approach, marked by a working back from the consequences of the investigation in assessing compliance with Article 2, would be reductive.

Yet equally there is a danger that a focus on process risks encouraging the payment of lip service by states in carrying out their investigations into state killings, which might tick the established procedural boxes  – such as independence, thoroughness, promptitude and the involvement of the victim’s family – while failing to fulfil the essential purpose of the investigation. As cases like Anguelova v Bulgaria (para 137) and Jasinkis v Latvia (para 72) tell us, that purpose is to secure both the effective implementation of domestic laws protecting the right to life and the accountability of state agents for deaths occurring at their hands.

In other words, there must be some cases in which the lack of a ‘positive’ outcome to an investigation will inevitably say something about its effectiveness.