Relatives of Jean Charles de Menezes have lost a legal challenge against the decision not to charge police officers who killed him because they mistakenly believed he was a suicide bomber.
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.
A string of blunders led members of the Metropolitan police’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.
The incident on 22 July 2005 followed a series of terrorist attacks in London – the suicide bombings that killed 56 people on 7 July and the failed attacks on 21 July. De Menezes lived at the same block of flats in Tulse Hill, south London, as two of the suspects in the previous day’s bombings 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’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 on human rights.
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 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 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 two required the evidential test to be lowered in cases where deaths had occurred at the hands of state agents.
“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.”
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.”
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.
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.
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.
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.
“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.”