Jean-Yves Gilg

Editor, Solicitors Journal

ECtHR: Police should not be prosecuted for Jean Charles de Menezes shooting

ECtHR: Police should not be prosecuted for Jean Charles de Menezes shooting


CPS decision not to prosecute armed police vindicated by Strasbourg court ruling

The fatal shooting of Jean Charles de Menezes following the London bombings in July 2005 should not have resulted in any prosecution of the police officers involved, the European Court of Human Rights (ECtHR) has held.

The decision handed down today follows the legal challenge brought by Patricia Armani Da Silva, the cousin of the deceased, which was based on article 2 of the European Convention on Human Rights (ECHR) and the decision of the Crown Prosecution Service (CPS) not to prosecute any officer in connection with de Menezes's death.

De Menezes was shot and killed at Stockwell tube station by members of the police's armed response unit, CO19, in 2005 after being mistaken for a suicide bomber.

The shooting occurred a fortnight after the 7/7 London bombings that left 52 people dead and hundreds more injured in the worst terrorist atrocity in Britain, and the day after a failed terror attack on the capital.

Following an investigation into the 27-year-old Brazilian electrician's death, the CPS decided against prosecuting any individual officer as there was no realistic prospect of conviction.

However, the Metropolitan Police Authority was found liable under the Health and Safety at Work Act 1974, despite its 'rather odd' request to the prosecution service and the Attorney General's office to drop the charges in 2006.

Giving a majority decision in Armani Da Silva v the United Kingdom - 13 to four - the Strasbourg court ruled that the UK had not violated de Menezes's convention rights.

'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 said.

'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.'

In a rare moment of praise for the ECtHR, a government spokesperson said: 'The government considers the Strasbourg court has handed down the right judgment.

'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.'

However, Harriet Wistrich, a solicitor at Birnberg Peirce, said: 'This is a very disappointing decision for a family who have fought for the last eleven 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.'

As explained by Dr Helen O'Nions, a senior lecturer at Nottingham Law School: 'It is well established that article 2 includes a positive obligation on state parties to provide mechanisms of accountability when a death is caused by agents of the state.'

In her latest lawbrief, O'Nions opined that the decision not to prosecute might protect officers if they can 'argue they had an honest, albeit mistaken, belief they were under imminent threat'.