The de Menezes case shows how hard it is to hold fatal state force to account, writes MARY-RACHEL McCABE
THE family of Jean Charles de Menezes last week lost a challenge in the European Court of Human Rights (ECHR) over the decision not to charge any police officer for his fatal shooting.
De Menezes was shot dead by police on July 22 2005, just two weeks after the July 7 bombings and one day after further attempted suicide bombings in London.
In a botched surveillance operation on the residence of one of the suspected bombers, officers followed de Menezes, a Brazilian electrician who had no connection with the bombings, into Stockwell Tube station and onto a train, where they pinned him down and shot him seven times in the head.
Following the fatal shooting, the Independent Police Complaints Commission (IPCC) passed a detailed report to the Crown Prosecution Service (CPS), the body responsible for prosecuting criminal cases in England and Wales.
The report found that de Menezes had been killed because of mistakes that could and should have been avoided.
It made a series of operational recommendations and identified a number of possible offences that might have been committed by the police officers involved, including murder and gross negligence.
The CPS ruled out instigating murder or manslaughter charges against individual officers involved in the shooting because it concluded that there was insufficient evidence for a “realistic prospect of conviction.”
The only conviction incurred by the police as a result of the shooting has been under health and safety laws — in 2007 the Met was fined £175,000 plus £385,000 costs for breaching the Health and Safety at Work Act 1974 in the course of the operation’s planning and implementation.
In 2008, after the coroner ruled out a verdict of unlawful killing, an inquest jury returned an open verdict on the basis that they did not accept the police’s claim that de Menezes was lawfully killed as part of an anti-terrorism operation.
The jury dismissed police claims that they had shouted a warning before shooting de Menezes, or that he had moved towards the police when challenged.
The application brought by the de Menezes family to the ECHR sought to make changes to the law to ensure that the police are brought to account for committing fatal offences.
The family argued that de Menezes’s right to life had been violated by the CPS’s decision not to prosecute any individuals in relation to his death.
Their first argument was that, in considering whether to bring a prosecution for a life-threatening offence against a state agent, the Director of Public Prosecutions (DPP) applies too high a threshold.
Under the current test, the DPP must be satisfied that there is enough evidence to provide a “realistic prospect of conviction” — in other words, that it’s above 50 per cent.
This often means the DPP decides not to proceed with prosecutions of police officers involved in fatal shootings.
The second argument put forward by de Menezes’s family was that the test for self-defence in British criminal law is contrary to the right to life.
The test for self-defence has two parts; first, the officers who shot de Menezes had to show that they had an honest belief that he posed an imminent threat and, second, that the force they used was reasonable in the circumstances.
Britain’s subjective test for self-defence means that, in the instance of a mistaken shooting by a police officer faced with a threat to him/herself or others — such as apparently occurred in the shooting of de Menezes — it does not matter that the officer’s belief may be objectively unreasonable.
However strange the officer’s belief may be, and however weak the grounds on which it is based, the officer is legally permitted to act on that belief, provided the force that s/he uses is proportionate to the threat perceived.
The de Menezes family argued that the first part of the self-defence test should be amended so that the officer must have a good reason, in the circumstances as he or she perceives them to be, for any belief that there is an imminent threat.
But the Grand Chamber of the ECHR last week dismissed the family’s application, concluding that, while the facts of the case are “undoubtedly tragic and the frustration of Mr de Menezes’s family at the absence of any individual prosecutions is understandable,” there was no violation of de Menezes’s right to life.
In particular, the court found that all aspects of the authorities’ responsibility for the fatal shooting had been thoroughly investigated and so it could not be said that the authorities had failed to ensure that those responsible for de Menezes’s death had been held accountable.
The judgment concluded: ?“The decision not to prosecute any individual officer was not due to any failing in the investigation of the state’s intolerance 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.”
Since 1990 there have been 1,015 deaths in police custody or following police contact and 58 fatal shootings by police officers in Britain and Northern Ireland.
Yet in no case has any police officer been convicted of a criminal offence, even where an inquest jury has returned a finding of “unlawful killing.”
Deborah Coles, director of Inquest, said that the ruling would serve to “further undermine the confidence of bereaved families in the processes for holding police to account.”
She added: “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.”
Eleven years on, and still no police officer has been disciplined for the killing of de Menezes, let alone prosecuted.
Last week’s ruling sadly represents the end of the road for his family, and it appears that no-one will ever be held accountable for de Menezes’s death.
The lack of successful prosecutions of officers at any level in the Met for the killings of de Menezes and others such as Mark Duggan and Azelle Rodney has grave consequences for public trust in the police.
It may be that a radical overhaul of the way in which these cases are investigated is needed, given that the existing judicial system has proven to be inadequate for the families of those who have been killed.
Finding a solution to the current lack of accountability will not be easy, but until we have a justice system in which the police are seen to be subjected to the same level of scrutiny and punishment as ordinary citizens, public confidence in the service is likely to remain low. ??
Mary-Rachel McCabe is a pupil barrister at Doughty Street Chambers. She tweets @MaryRachel_McC