No human rights breach in non-prosecution of Menezes officers: ECtHR
The United Kingdom has been cleared by the European Court of Human Rights of any breach of the European Convention, in relation to the investigation of the police officers responsible for the mistaken shooting of a man following the 2005 London terrorist attacks.
Armani da Silva, a cousin of Jean Charles de Menezes, a Brazilian national wrongly identified by police as a suicide bomber and shot dead as he tried to flee, had complained that the state had not fulfilled its duty to ensure the accountability of its agents for his death because the ensuing investigation had not led to the prosecution of any individual police officer.
By a 13-4 majority, however, a Grand Chamber of the court considered that all aspects of the authorities’ responsibility for the fatal shooting had been thoroughly investigated, both as regards the individual responsibility of the police officers involved and the institutional responsibility of the police authority. 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 on a consideration of all the facts of the case, the prosecutor had concluded that there was insufficient evidence against any individual.
In particular the Crown Prosecution Service found that it would be very difficult to prove beyond reasonable doubt that the officers who shot Mr de Menezes had not genuinely believed that they were facing a lethal threat, and there was insufficient evidence to show that the mistakes made by the police officers involved in planning the operation were so bad as to amount to criminal conduct. For similar reasons no disciplinary action was pursued.
The police authority was successfully prosecuted under the Health and Safety at Work etc Act 1974, and a civil action for damages was settled confidentially. Ms da Silva however complained that this was not sufficient to meet the state's duty under article 2 of the Convention to ensure accountability and punishment of state organs or bodies for the fatality. She argued that the prosecution service had applied too high a test – whether a conviction was more likely than not – and that the test of self defence should involve an honest and reasonable belief that the use of force had been absolutely necessary, rather than simply an honest belief.
In its decision the court found that the test for self-defence in England & Wales was not significantly different from the standard that it itself applied. In both instances the focus was on whether there existed an honest and genuine belief that the use of force was necessary, and the reasonabless of that belief was relevant to the determination of whether it was honestly and genuinely held.
It further noted the steps taken by the authorities following the shooting, including the detailed recommendations to ensure that the mistakes made were not repeated. While the facts of the case were undoubtedly tragic and the frustration of Mr de Menezes’ family at the absence of any individual prosecutions was understandable, the decision not to prosecute had not been due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts.
"Consequently," the court concluded, "having regard to the proceedings as a whole, it cannot be said that the domestic authorities have failed to discharge the procedural obligation under article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which was capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible."