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Jean Charles de Menezes: police officers should not be prosecuted, says ECHR Jean Charles de Menezes: family lose fight for police officers to be prosecuted
(about 3 hours later)
The police officers who killed Jean Charles de Menezes in 2005 mistakenly believing he was a suicide bomber should not be prosecuted, the European court of human rights has ruled. Relatives of Jean Charles de Menezes have failed to overturn the Crown Prosecution Service’s decision not to charge police officers who killed him because they mistakenly believed he was a suicide bomber.
The decision by the Strasbourg court brings to an end a controversy that has lasted more than a decade following the Brazilian electrician’s death in Stockwell tube station, south London. The decision by the European court of human Rights in Strasbourg brings to an end a controversy that has endured since 2005 following the Brazilian electrician’s death at Stockwell tube station, south London. His family condemned the judgment for allowing police to avoid accountability.
Related: Who was Jean Charles de Menezes?Related: Who was Jean Charles de Menezes?
A string of police blunders led members of the force’s elite armed unit, CO19, to open fire with their guns just 1cm to 8cm away from De Menezes’ head as he was pinned down into a seat on an underground train. A string of police blunders led members of the force’s elite armed unit, CO19, to open fire with their guns just 1cm to 8cm away from De Menezes’ head as he was pinned down into a seat on an underground train. He died instantly.
He died instantly on 22 July 2005; it was a fortnight after suicide bombings in London killed 56 people. De Menezes lived at the same block of flats in Tulse Hill, south London, as two of the terror suspects and had been followed by surveillance officers to Stockwell station when he left for work that morning. The incident on 22 July 2005 followed a series of suicide bombings which killed 56 people in London on 7 July. De Menezes lived at the same block of flats in Tulse Hill, south London, as two of the terror suspects and had been followed by surveillance officers to Stockwell station when he left for work that morning.
The Crown Prosecution Service decided the following year that no individual should face charges. The challenge to the CPS refusal to prosecute the officers was brought by Patricia Armani Da Silva, who is De Menezes’ cousin. The CPS decided the following year that no individual should face charges. The challenge to the CPS’s refusal to prosecute the officers was brought by Patricia Armani da Silva, who is De Menezes’ cousin.
The case was heard in the grand chamber of the ECHR, which deals with cases potentially affecting interpretation of the European convention of human rights. The case was heard in the grand chamber of the ECHR, which deals with cases potentially affecting interpretation of the European convention on human rights.
By a majority of 13 to four, the judges ruled that the UK had not violated article two of the European Convention of Human Rights which guarantees the right to life. By a majority of 13 to four, the judges ruled that the UK had not violated article two of the convention, which guarantees the right to life. The dissenting judges were from Turkey, Russia, Poland and Spain.
“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,” the court declared, “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 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,” the court declared. “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 ECHR acknowledged that all the UK independent authorities considering the actions of the two firearms officers “had carefully examined the reasonableness of their belief that Jean Charles de Menezes had been a suicide bomber who could detonate a bomb at any second”.The ECHR acknowledged that all the UK independent authorities considering the actions of the two firearms officers “had carefully examined the reasonableness of their belief that Jean Charles de Menezes had been a suicide bomber who could detonate a bomb at any second”.
The Strasbourg court also accepted that the evidential test applied by the CPS in deciding whether to prosecute, had been within the state’s discretion - what is known legally as its “margin of appreciation”. The Strasbourg court also accepted that the evidential test applied by the CPS in deciding whether to prosecute had been within the state’s discretion – what is known legally as its “margin of appreciation”.
The test applied in England and Wales had not been “arbitrary”, having been the subject of frequent reviews, public consultations and political scrutiny, the court added. Nor is there a uniform, alternative approach by other European states to the evidential test employed The test applied in England and Wales had not been “arbitrary”, having been the subject of frequent reviews, public consultations and political scrutiny, the court added. Nor is there a uniform, alternative approach by other European states to the evidential test employed.
The ECHR dismissed claims that Article 2 required the evidential test to be lowered in cases where deaths had occurred at the hands of state agents. The ECHR dismissed claims that article two required the evidential test to be lowered in cases where deaths had occurred at the hands of state agents.
The ruling did not surprise commentators and follows changes adopted by Strasbourg, with UK supporrt, which have effectively enlarged each country’s margin of appreciation in cases. “The facts of the present case are undoubtedly tragic and the frustration of Mr De Menezes’ family at the absence of any individual prosecutions is understandable,” the judgment said. “However, it cannot be said that “any question of the authorities’ responsibility for the death … was left in abeyance.”
Had the ECHR ruled the other way, it would have created fresh crisis in the UK government’s relations with the European human rights judges. The government’s proposed Bill of Rights, which will alter the UK’s judicial relationship with Strasbourg, is now not expected to be published until after the EU referendum. It added: “As the [UK] government have pointed out, sometimes lives are lost as a result of failures in the overall system rather than individual error entailing criminal or disciplinary liability … It cannot be said that the domestic authorities have failed to discharge the procedural obligation under article two of the convention to conduct an effective investigation into the shooting of Mr De Menezes.”
In the De Menezes case, the Independent Police Complaints Commission (IPCC) decided in 2007 that no disciplinary action should be pursued against any of the frontline and surveillance officers since there was no realistic prospect of any disciplinary charges being upheld. The ruling did not surprise commentators and follows changes adopted by Strasbourg, with UK support, which have effectively enlarged each country’s margin of appreciation in cases.
The Metropolitan police authority was, however, found liable under the Health and Safety at Work Act 1974 for De Menezes’ death due to failings in the operation’s planning and implementation. Had the ECHR ruled the other way, it would have created a fresh crisis in UK government relations with European human rights judges. The government’s proposed bill of rights, which will alter the UK’s judicial relationship with Strasbourg, is not expected to be published until after the EU referendum on 23 June.
Investigating the De Menezes case, the Independent Police Complaints Commission (IPCC) decided in 2007 that no disciplinary action should be pursued against any of the frontline and surveillance officers since there was no realistic prospect of any disciplinary charges being upheld.
The Metropolitan Police Authority was, however, found liable under the Health and Safety at Work Act 1974 for De Menezes’ death due to failings in the operation’s planning and implementation.
It was fined £175,000 plus £385,000 costs but in a rider to its verdict, endorsed by the judge, the jury absolved the officer in charge of the operation of any “personal culpability” for the events.It was fined £175,000 plus £385,000 costs but in a rider to its verdict, endorsed by the judge, the jury absolved the officer in charge of the operation of any “personal culpability” for the events.
At an inquest in 2008 the jury returned an open verdict after the coroner had excluded unlawful killing from the range of possible verdicts. The family also pursued a civil action that resulted in a confidential settlement in 2009. At an inquest in 2008 the jury returned an open verdict after the coroner had excluded unlawful killing from the range of possible verdicts. The family also pursued a civil action which resulted in a confidential settlement in 2009.
Harriet Wistrich, the solicitor at the London law firm Birnberg Peirce who represents the De Menezes family, argued that the CPS decision not to bring any prosecution was based on an assessment that there was, in effect, less than a 50% chance of conviction. That test, it will be argued, is not compatible with article 2 of the European convention which protects the right to life. Responding to the judgment, a statement issued through the attorney general’s office said: “The government considers the Strasbourg court has handed down the right judgment.
Applying guidelines set by the code for crown prosecutors too early, Wistrich had said, when prosecutors have not seen witnesses give oral evidence, means that the test can prevent homicide offences from being punished. The threshold in other European states, it is argued, is not set so high as to require a conviction to be “more likely than not”. “The facts of this case are tragic, but the government considers that the court has upheld the important principle that individuals are only prosecuted where there is a realistic prospect of conviction.”
Lawyers for the UK government, led by Clare Montgomery QC, had argued that if officers were liable to prosecution when their use of force was legitimate and based on honest beliefs at the time, there could be a “chilling effect” on the willingness of officers to carry out essential armed duties.
Da Silva Armani, who was staying with De Menezes at the time of the shooting, said: “Our family are deeply disappointed at today’s judgment. We had hoped that the ruling would give a glimmer of hope, not only to us, but to all other families who have been denied the right to justice after deaths at the hands of the police.
“We find it unbelievable that our innocent cousin could be shot seven times in the head by the Metropolitan police when he had done nothing wrong and yet the police have not had to account for their actions.
“As we have always maintained, we feel that decisions about guilt and innocence should be made by juries, not by faceless bureaucrats, and we are deeply saddened that we have been denied that opportunity yet again. We will never give up our fight for justice for our beloved Jean Charles.”
A spokesperson for the Justice4Jean campaign said: “At a time when the debate over the shoot-to-kill policy has resurfaced as an issue of national concern, we fear this ruling will lead to more cases of injustice.”
Harriet Wistrich, the solicitor at the London law firm Birnberg Peirce who represents the De Menezes family, said: “This is a very disappointing decision for a family who have fought for the last 11 years to get justice and accountability, although we are pleased to note that there were four of the 17 judges who dissented.
“This judgment will do nothing to counter a widely held belief (particularly among marginalised communities) that there is one standard for the police and another for the general public.”
Deborah Coles, director of the charity Inquest, said: “The experience of the De Menezes family and their long pursuit of justice exemplifies all that is wrong with the investigation process which follows a death involving police use of force.
“This disappointing ruling will further undermine confidence of bereaved families in the processes for holding police to account. At its core are concerns that the rule of law does not apply to the police for abuses of power in the same way as it does to an ordinary citizen and that they are able to avoid scrutiny and accountability. This serves only to create a culture of impunity which frustrates the prevention of abuses of power, ill treatment and misconduct.”