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28 September 2010
FOURTH SECTION
Application no.
5878/08
by Patricia ARMANI DA SILVA against the United
Kingdom
lodged on 21 January 2008
STATEMENT OF FACTS
THE FACTS
A. The circumstances of the case
1. Background
2. Operation THESEUS 2
(a) The early hours of 22 July 2005 and Commander McDowall’s strategy
(b) Events leading to the death of Mr Jean Charles de Menezes
3. Post-death investigations
(a) The initial investigations
(b) The first IPCC investigation and the IPCC Stockwell One Report
“17.22 The pressures under which the Metropolitan Police were operating following the events of 7 July and 21 July are self-evident. However, the fact that the independence body established by an Act of Parliament to the investigate complaints and serious incidents involving the police, and which has independently investigated every fatal police shooting since 1 April 2004 was now to be excluded from the scene, is a major concern for an independent investigation, and should never occur again.
17.23 The fact that there was such concern over the problems with the CCTV tapes at STOCKWELL and the fact that the hard drives on the train were missing highlights the problem. This issue could have been resolved a lot earlier had they been under the control of the IPCC.
17.24 The London and South East Regional offices are within 20 minutes driving time of STOCKWELL. While the organisation does not have all the resources of the DPS, a senior investigator could have been despatched to take command and control of the scene. It is fully recognised that the Anti Terrorist Branch may well have had primacy of the scheme, but a verbal memorandum of understanding concerning priorities could have been agreed at the time, as it would have been between [the Anti Terrorist Branch officer] and the DPS. ...
17.25 The failure to allow the IPCC access has also been highlighted by the fact that the surveillance log 165330 has been altered.”
As to the translation of a “possible” to a “positive” identification, the IPCC noted that:
“However ‘James’ [the head of the surveillance team] did not communicate that some of his team thought that the subject was not [the suspect]. This information should have been fully communicated to [the DSO] as it may have influenced her decision-making. The [CPS] may wish to consider whether this negligence by ‘James’ ... satisfies the test for gross negligence.”
As to shooting Mr de Menezes after he had been tackled in the train:
“20.74 Charlies 2 and 12 clearly believe they were acting in self defence, and had the right in law to use the force they did. The [CPS] may wish to consider whether the actions of Charlie 2 and Charlie 12 amount to murder in the context of their justification for the shooting of Mr DE MENEZES and having regard to the fact that there were explanations given for the shooting at that time which did not accord with the accounts given 36 hours later. ... An examination of whether any other officer, apart from Charlie 2 and Charlie 12, is potentially implicated in the shooting ... and whether any actions fall into any of the offence categories (other than murder) set out above. ...
20.87 [The DSO] has endorsed that she was the person in command.
The [CPS] may wish to consider whether the manner in which this operation was commanded, the failures to have resources properly deployed and the absence of any other tactical options could be considered to be grossly negligent.”
As to any potential gross negligence of Charlie 2 and/or Charlie 12 in coming to the conclusion that de Menezes was a suicide bomber who had to be killed (manslaughter), the IPCC held as follows as regards all eight officers on board the train:
20.91 Given that they believed they were confronting a suicide bomber it is perhaps illogical that they would have challenged him prior to trying to detain him. The [CPS] may wish to consider whether any of the eight officers on the train who state they shouted or heard the words ‘armed police’ have conspired to ... pervert the course of justice. ...
and, specifically, as regards Charlie 2 and Charlie 12:
20.94 ... The [CPS] may wish to have regard to the matters summarised [above] in considering whether the actions of Charlie 2 and 12 amount to self-defence or not. They may also wish to consider whether they were grossly negligent to come to the conclusion that they were confronting a suicide bomber.”
As to the alteration of the surveillance log (see paragraph 29 above), the IPCC concluded that sufficient evidence had not been found against any individual to make it possible to suggest that criminal proceedings might be appropriate.
“4.1 The IPCC fully concurs with the praise that the Metropolitan Police received for their handling of the events of 7 and 21 July 2005. The IPCC investigation into the death of Jean Charles DE MENEZES has however raised grave concerns about the effectiveness of the police response on 22 July 2005. Our concerns are not only, as in this case, the risk of an entirely innocent member of the public being killed in error but also whether the police response would stop a terrorist who was intent on causing harm.”
As to the police use of firearms, the IPCC made detailed recommendations on command and control issues including the need to clarify the roles and responsibilities within the chain of command; to establish a clear and common understanding of the circumstances surrounding future firearms operations; and to put in place better communications channels given the failure to implement Commander McDowall’s strategy to ensure the deployment of the SFO team in time. The IPCC also underlined two operational concerns about the use of firearms: the substantial delay between the time the SFOs were requested and when they were deployed; and the lack of clarity about the command to “stop” the suspect given the likely mindset of the SFOs (they were deployed on an anti-terrorist operation the day after unsuccessful attempts had been made to cause explosions within the underground system. They had been issued with special ammunition for close range use. They knew a DSO was in command).
As to the surveillance operations, the IPCC was concerned that the surveillance team, the SFOs and those in command were not used to working together and were not sufficiently familiar with each others’ working practices; that two surveillance officers believed that the person being followed was not the suspect and that this was not communicated to the DSO; and that the surveillance log had been altered. Recommendations were made.
As to post-incident management, the IPCC repeated its concern about the delay in handing the scene and the investigation to it; about the fact that the SFOs (Charlie 2 and Charlie 12) were allowed to return to their own base, refresh themselves, confer and write up their notes together. Recommendations were made.
As to the communications infrastructure, the IPCC was concerned that command and control of the incident was inevitably lost when the SFOs entered the underground. Recommendations were made. As to training and exercises, concern was expressed that the existing ACPO Firearms Manual and the KRATOS policy were patently insufficient to deal with the current terrorist threat. Recommendations were made.
(c) The second IPCC Investigation and IPCC Stockwell Two Report
4. The first prosecution
(a) The first prosecutorial decision
35. By letter dated 17 July 2006 the CPS notified the deceased’s family that the DPP had decided to prosecute the OCPM, not in his individual capacity but as an employer of police officers, for failing to provide for the health, safety and welfare of Mr de Menezes contrary to the Health and Safety at Work etc Act 1974 (“the 1974 Act”). No individual was to be prosecuted in relation to the death as there was “insufficient evidence to provide a realistic prospect of conviction against any individual police officer”, which phrase meant that a jury was more likely than not to convict. This decision letter, in so far as relevant, also provided as follows:
“... In the circumstances of this case, if the prosecution could prove that [the SFOs] were not acting in self defence (either of themselves or others) then they would be charged with murder. The order was given that Jean Charles was to be stopped from getting on the train. Although officers in the control room intended that Jean Charles should be arrested outside the station, the [SFO team] were not in place to make such an arrest, nor was this intention made explicit to the [SFOs] who were being sent down to the train. All the available evidence suggests that they believed that Jean Charles had been identified as a suicide bomber, that they had been directed to stop him from blowing up the train and that they had to shoot him to prevent that ....
The burden would be on the prosecution to prove beyond reasonable doubt that these two officers did not honestly and genuinely believe that they were facing a lethal threat and so I looked to see if there was sufficient evidence to disprove that they had such an honest and genuine belief. Both officers stated that Jean Charles was wearing a ‘bulky’ jacket when they saw him but in fact Jean Charles was wearing a simple denim jacket. I therefore took this into account as it could indicate that the officers had lied. However even if I could prove that the officers had lied, rather than simply being mistaken, this alone would not be enough to commence a prosecution for murder as there could be other reasons for an officer to lie. I also considered their explanations of Jean Charles’s movements when they approached him, to see if there was evidence that they had fabricated those accounts to justify their actions. Both refer to Jean Charles getting up and advancing towards them with his hands down by his side before he was tackled by a surveillance officer and forced back into the seat. The [SFOs] then shot Jean Charles. I had to consider whether the prosecution could argue that the restraint meant that no bomb could be detonated and that the firearms officers’ actions were unlawful. However I must bear in mind that this happened in a matter of seconds and there is some independent evidence that supports the officers’ accounts that they feared Jean Charles might detonate a bomb. A witness sitting opposite Jean Charles said ‘I got the impression that he was reaching to the left hand side of his trouser waistband.’ ...
As I cannot prove the officers did not act in genuine self defence, I cannot charge them with murder or any other offence of assault, including manslaughter.
There is some disagreement between officers and the members of the public as to whether any warning was given that armed police were approaching the train. In a situation such as this, where a warning to a suspected bomber could be fatal for officers and the public, no warning should be given. However some police officers say that they did hear a call of ‘armed police’ before the shooting and although passengers did hear officers shouting as they ran down the stairs, none of them heard words ‘armed police.’ Both of the [SFOs] say that they shouted ‘armed police’ immediately before they fired but whether they did, and if so, whether it was intended as a warning to Jean Charles or to others in the carriage is unclear. There is no doubt that some police officers did shout something before any shots were fired .... Unless I could prove that officers had lied ... to mislead any investigation, I could not prosecute them for attempting to pervert the course of justice.
Next I carefully examined the roles of those police officers concerned in planning the surveillance and stop and those who carried it out. ... there were a number of people involved and there is no doubt that messages were misinterpreted with tragic consequences. I have considered whether any errors or other conduct by individuals could be categorised as criminal. In this I have applied the law on gross negligence manslaughter, misconduct in public office and the [1974] Act. Even where I found that individuals had made mistakes, I found insufficient evidence that those mistakes were so bad that they could be described as criminal. As criminal proceedings are to be brought against the [OCMP], I cannot provide you with a detailed account of the conduct of those individuals, as that conduct will form part of the prosecution case.”
“The answer seems obvious. First, the manuals are flawed as they do not cover the situation of the innocent but mistakenly identified individual (as occurred here) but perhaps more importantly, there was no plan in place to stop “Suspect 1” safely. It can easily be seen that if Suspect 1 had left Scotia Road wearing a bomb, such device could have been detonated on the bus. It would have been possible for the [OCPM] to have argued that it was not “reasonably practicable” to have prevented such an occurrence.
A visit to Scotia Street reveals that the opportunity was there to conduct a safe stop using police vehicles. S019 had over three hours to deploy, yet the lack of the sense of urgency is highlighted by stopping off for petrol [on the way]. The fact that the surveillance team got there shortly after 6.00am shows that it was “reasonably practicable” for SO19 to have done so. In my opinion, the offence under section 3 [of the 1974 Act] is made out.”
“In my view, this operation was badly handled from the moment it passed from Commander [McDowall]. It resulted in an innocent man being shot dead in the most horrific manner. The Metropolitan Police were under tremendous pressure and were doing their best to protect the public from suicide bombers. These are factors that I take into account but these do not detract from the failure to carry out [Commander McDowall’s] strategy which would have best protected Mr de Menezes.”
“difficult to see how the police could argue the lack of reasonable practicability in ensuring the safety of [Mr de Menezes]. If this came to a contested trial, the police would probably have to call a number of officers ... who were interviewed as suspects. Their failures in the planning would then be highlighted.”
“... in my view in this instance the failures were serious, avoidable and led to the death of an innocent man.
In my view, the lack of planning led to the death of de Menezes and, as such, constituted an offence under section 3 of the [1974 Act]. I believe that if such a charge is preferred, we can prove the case on the evidence already available but a decision not to prosecute individuals will enable the IPCC to seek further evidence to strengthen the case, from those individuals who are at present declining to.”
(b) Judicial review of the first prosecutorial decision
(c) The prosecution of the OCPM
(a) failure adequately to communicate Commander McDowall’s strategy to the officers who took over the running of the operations on 22 July 2005, the surveillance officers and the [SFOs];
(b) failure adequately to plan for or carry out Commander McDowall’s strategy for controlling the premises;
(c) the control room officers, the SFOs and the surveillance officers had a confused and inconsistent understanding of what the strategy was for Scotia Road;
(d) failure to deploy officers to stop and question persons emerging from the Scotia Road premises, including Mr de Menezes;
(e) failure to ensure that the SFOs were in attendance at Scotia Road when Mr de Menezes emerged from the common doorway;
(f) failure to have a contingency plan for dealing with persons who emerged from the block of flats before firearms officers arrived;
(g) failure to stop and question persons emerging from Scotia Road;
(h) failure to identify a safe and appropriate area where those leaving Scotia Road could be stopped and questioned;
(i) the briefings given to the SFOs were inaccurate, unbalanced, and provided the SFOs with inadequate and inaccurate information about the operation including the operation at Scotia Road;
(j) the information as to the identification of Mr de Menezes, his clothing, demeanour and likely level of threat, was not properly or accurately assessed or disseminated to officers and, in particular, to the SFOs;
(k) failure to ensure that doubts about the correctness of the identification of Mr de Menezes as the suspect were communicated to the control room;
(l) the control room officers failed to satisfy themselves that a positive identification of Mr de Menezes as the suspect had been made by the surveillance officers;
(m) failure to deploy the SFOs at relevant locations in time to prevent Mr de Menezes from getting on the bus and entering Stockwell underground station;
(n) the SFOs failed to satisfy themselves that a positive identification of Mr de Menezes as the suspect had been made by the surveillance officers;
(o) failure to take effective steps to stop underground trains or buses or take other traffic management steps so as to minimise the risk to the travelling public;
(p) Mr de Menezes was twice permitted to get on a bus and to enter Stockwell underground station despite being suspected of being a suicide bomber and despite having emerged from an address linked to a suspected suicide bomber;
(q) failure to give a clear or timely order that Mr de Menezes be stopped or arrested before he entered Stockwell underground station;
(r) failure to give accurate information to the DSO as to the location of the SFOs when she was deciding whether the SFOs or officers from the Anti Terrorist Branch should stop Mr de Menezes; and
(s) failure to minimise the risk inherent in effecting the arrest of Mr de Menezes by armed officers whether in relation to the location, timing or manner of his arrest.
5. Disciplinary proceedings against the frontline and surveillance officers.
6. The Inquest
(a) As to the SFOs (Charlie 2 and Charlie 12) who shot Mr Menezes
“16. ...There is no doubt that the officers intended to kill Mr de Menezes when they fired. Therefore, if their contention that [they] were acting lawfully in defence of themselves or others could be disproved, they would have committed ... the offence of murder.
17. There is agreement between all Interested Persons as to what test I should apply in determining whether the officers acted lawfully in defence of themselves and others:
(i) Did the officer honestly and genuinely believe that it was necessary for him to use force in defence of himself and/or others? This is a question of subjective belief. Even if the belief was mistaken, and even if the mistake was unreasonable, the defence can still run. The reasonableness of the belief is only relevant in helping the jury to decide whether the belief was honestly held.
(ii) If the officer did hold the belief, did he use no more force than was reasonably necessary in the circumstances as he believed existed at the time? This is an objective test, but it is applied realistically. Where a person faces a threat, the Courts will not judge with too precise a measure the degree of force he uses... It is also significant for present purposes that a person under threat is not required to wait passively for the blow to fall. A pre-emptive strike can be justified by the circumstances.
“27. If the officers honestly believed that Mr de Menezes represented a mortal threat to themselves and those around them, it could not be said that they used more force than was reasonably necessary... An argument was made... to the effect that [one of the officers] used excessive force because he fired too many times ... In my judgment, it has no merit. The events took place in a few seconds, and one cannot fairly say that some of the shots to the head constituted reasonable force and some did not. In any event, the officers had been trained to fire until the threat was neutralised.
(b) As to the senior officers
“35.... a police officer can owe a duty of care in directing other police officers to perform an armed interception. The content of the duty here would be to take reasonable care to ensure that such an interception took place in such a location and at such a time as to minimise, so far as reasonably practicable, the risk of unnecessary injury to the subject of the intervention, to the officers concerned and to others in the immediate vicinity. In this case the duty would not arise before the point at which firearms officers were ordered to move through with a view to performing an interception.
(i) Commander McDowall
(ii) the DSO
60. There were three allegations against her:
“54... First, ... that [the DSO] failed to ensure that the block on Scotia Road was kept under careful surveillance control and that tactics were employed to ensure that all suspects could be identified and stopped before reaching a bus stop. As it happens, the nearest bus stop was on Upper Tulse Hill, only a few minutes’ walk from the block. The first obstacle [to this] argument is the difficulty of constructing a positive duty of care at that stage to stop Mr de Menezes close to his home. In my judgment, no such duty could exist. Even if it could, I consider that it would not have been practicable to implement this as a fixed and inflexible tactical plan... In any event, the surveillance control was good: Mr de Menezes was kept continually under surveillance but the covert status of the operation near Scotia Road was maintained. The failure to stop him at an earlier stage was based on an inability of officers to say whether he was identifiable with the suspect. Therefore, his death was not caused by any failure of surveillance control at Scotia Road.
55. Secondly, it is alleged that [the DSO] failed to keep herself informed of where surveillance and firearms officers were as Mr de Menezes was travelling from Tulse Hill towards Stockwell. Again, I do not think that a police officer owes a duty to a person under surveillance to ensure that he is informed of the movements of other officers, at least before any intervention is immediately in prospect. If there were such a duty, it would only be to keep oneself reasonably well-informed, since it would not be practicable to keep note of the precise position of every officer and car. The thrust of the evidence is that [the DSO] did keep herself reasonably well-informed. She was aware, through the surveillance monitor in the control room, that surveillance officers were following Mr de Menezes and of what they were saying. In any event, as Mr Mansfield accepts, nothing could have been done to stop Mr de Menezes between his getting on the bus at Tulse Hill and his alighting at Stockwell. [The DSO] had [the SFOs] at the proper holding point at the time she wanted to deploy them. In the minutes before she ordered the intervention, she was relying upon information from [her tactical advisor] as to the position and readiness of the [SFOs]. In my judgment, she was entitled to rely upon that information. In all those circumstances, any failure on her part to keep herself informed was not causative of the fatal events in the carriage.
56. Thirdly, it is submitted ... that [the DSO] failed to exercise proper judgment in her decisions in the last critical minutes, after Mr de Menezes left the bus at Stockwell. In my judgment, she probably did owe a duty of care to him at this stage in making decisions and giving directions for an armed stop. However, she cannot fairly be said to have breached that duty. When she became aware that the subject of surveillance had left the bus, she ordered the [SFOs] to perform an armed stop. Upon hearing that they were not in a position to make the stop, she instructed the surveillance officers to do so. That order cannot be characterised as negligent. If there were any slight delay in giving the order, that can probably be explained by the need to take thought before ordering a suspected suicide bomber to be stopped by officers who were not trained for such situations. Once she was told that the [SFOs] were in position, she countermanded the earlier order. It might be possible to say that she made the wrong decision at that point, given where Mr de Menezes was known to be, but these were fast-moving events and her decision cannot be described as negligent. [It was submitted] that using [SFOs] gave rise to a particular risk that lethal force would be used. However, there were obvious advantages to using officers who had the training and experience to perform armed interventions in a public place.”
(iii) Trojan 80 (the DSO’s firearms tactical adviser)
“58. The first charge against [Trojan 80] is that, upon arriving at New Scotland Yard at around 6am, he failed to take steps to expedite the despatch of [the SFOs] to the Scotia Road area. For the reasons already given, I do not consider that he would have owed a duty of care to Mr de Menezes in this regard. In any event, when he started work, all the critical decisions had been taken in relation to the [SFOs] deployments. It would probably not have been safe or sensible to try to expedite the deployments at that stage. As explained in paragraph 52 above, I do not think it can be established to the necessary standard of proof that any delay in deploying firearms teams was causally relevant to the death of Mr de Menezes.
59. The second allegation is that he failed to devise a tactical plan to ensure that any suspect coming out of the block was stopped before reaching a bus stop. This is, in essence, the same as one of the allegations made against [the DSO]. For the reasons I have given in paragraph 54, this argument fails at every stage.
60. The third point made in criticism of [Trojan 80] is that he failed to pass on to [the DSO] accurate information about the position of the [SFOs] in the minutes after it became apparent that Mr de Menezes was leaving the bus. However, [Trojan 80] was reliant for his information on the tactical adviser who was with the team on the ground, ‘Trojan 84’. That officer initially told [Trojan 80] that his team were ‘not in contention’ because they were behind the wrong bus. [Trojan 80] duly passed on that information. Even if it were incorrect, it is difficult to criticise him for passing it on.”
(i) that [Charlie 12] did not shout “armed police”;
(ii) that, while Mr de Menezes did stand up before being grabbed in a bear hug by one of the surveillance officers, he did not move towards the SFOs;
(iii) that the general difficulty in providing identification of the man under surveillance in the time available and the innocent behaviour of Mr de Menezes increasing suspicion were not contributory factors to the death;
(iv) that the failure to obtain and provide better photographic images of failed bomber Hussain Osman to surveillance officers; the fact that the views of the surveillance officers regarding identification were not accurately communicated to the command team and the SFOs; the failure by police to ensure that Mr de Menezes was stopped before he reached public transport; the fact that the position of the cars containing the SFOs was not accurately known by the command team as SFO teams were approaching Stockwell Tube; shortcomings in the communications system between various police teams on the ground; and a failure to conclude at the time that surveillance officers could have been used to carry out the stop on Mr Menezes at Stockwell, were each contributory factors to the death. The jury could not decide whether the pressure on police after the suicide attacks in July 2005 was a contributory factor to Mr de Menezes’ death.
7. Judicial review of Coroner’s decision on verdicts open to the jury
In the first place, the existing verdicts and questions enabled the jury to satisfy their statutory obligations (section 11 of the Coroner’s Act and Rule 36(1)(b) of the Coroner’s Rules) and to ascertain by what means and in what circumstances Mr de Menezes came by his death. The verdicts of the jury in this case provided, furthermore, more information than was sought from, and given by, the jury in Bubbins v. the United Kingdom (no. 50196/99, ECHR 2005 II) and McCann and Others v. the United Kingdom (27 September 1995, Series A no. 324) where this Court found that the procedural obligations under Article 2 of the Convention had been met.
Secondly, no case decided domestically or in this Court had been cited in which it was held that specific questions, whether of the kind sought by the claimants in the case or otherwise, were required to be asked of a jury over and above asking them “by what means and in what circumstances” the deceased died. Thirdly, the Coroner had a discretion “to decide how best in the particular case to elicit the jury’s conclusion on the central issue or issues” and therefore the only grounds for interfering would probably be on Wednesbury grounds. Fourthly, there was a risk that if the jury were required to answer the additional questions proposed they would be acting in contravention of Rule 36(2) of the Coroners Rules 1984 by expressing opinions on matters other than those on which they were entitled to comment and, in particular, by appearing to determine questions of criminal or civil liability. Fifthly, the proposed questions would expose the jury to a risk of making contradictory and conflicting findings. Sixthly, the claimant had failed to show, even arguably, that there were strong grounds for disturbing the decision of the Coroner.
8. The second prosecutorial decision
9. Second refusal to initiate disciplinary proceedings
10 . A civil action for damages
B. Relevant domestic law
1. Prosecutorial decisions
(a) 1985 Act
“(1) The [DPP] shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them—
(a) in determining, in any case—
(i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or
(ii) what charges should be preferred; and
(b) in considering, in any case, representations to be made by them to any magistrates’ court about the mode of trial suitable for that case.
(2) The Director may from time to time make alterations in the Code...”
(b) The Code for Crown Prosecutors (“the Code”)
“5. THE FULL CODE TEST
5.1 The Full Code Test has two stages. The first stage is consideration of the evidence. If the case does not pass the evidential stage it must not go ahead no matter how important or serious it may be. If the case does pass the evidential stage, Crown Prosecutors must proceed to the second stage and decide if a prosecution is needed in the public interest. The evidential and public interest stages are explained below.
the evidential stage
5.2 Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.
5.3 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A court should only convict if satisfied so that it is sure of a defendant’s guilt.
5.4 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable. ...
the public interest stage
4.11 Accordingly, where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest.
4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.
4.13 Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed.
4.15 Some common public interest factors which should be considered when deciding on the most appropriate course of action to take are listed below. The following lists of public interest factors are not exhaustive and each case must be considered on its own facts and on its own merits.
Some common public interest factors tending in favour of prosecution
4.16 A prosecution is more likely to be required if:
a) a conviction is likely to result in a significant sentence; ...
c) the offence involved the use of a weapon or the threat of violence; ...
j) the victim of the offence was in a vulnerable situation and the suspect took advantage of this; ...
n) the suspect was in a position of authority or trust and he or she took advantage of this; ...
r) a prosecution would have a significant positive impact on maintaining community confidence; ...
Some common public interest factors tending against prosecution
4.17 A prosecution is less likely to be required if:
a) the court is likely to impose a nominal penalty;
b) the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies ...;
c) the suspect has been subject to any appropriate regulatory proceedings, or any punitive or relevant civil penalty which remains in place or which has been satisfactorily discharged, which adequately addresses the seriousness of the offending and any breach of trust involved;
d) the offence was committed as a result of a genuine mistake or misunderstanding; ...
g) a prosecution is likely to have an adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence and the views of the victim about the effect of a prosecution on his or her physical or mental health;
h) the suspect played a minor role in the commission of the offence;
i) the suspect has put right the loss or harm that was caused (but a suspect must not avoid prosecution or an out-of-court disposal solely because he or she pays compensation or repays the sum of money he or she unlawfully obtained); ...”
(c) Review of prosecutorial decisions: R. v. Director of Public Prosecutions, ex p Manning [2001] 1 QB 330
“23. Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review ... . But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the [DPP] as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the [DPP] personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the [DPP’s] provisional decision is not to prosecute, the decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment. The [DPP] and his officials ... will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied. ...
41. ... We accord great weight to the judgment of experienced prosecutors on whether a jury is likely to convict, and Mr Western’s [the decision maker] review note does not at all read as if composed to reach a pre-determined conclusion; the note suggest that the author was seeking to review the case fairly and even-handedly, and the final conclusion against prosecution comes as something of a surprise. In the end we are, however, satisfied that there are five points which [the] defendant would have to overcome if he were to defeat the prima facie case which in Mr Western’s judgment lay against him and there were points which Mr Western did not address and resolve... ”
2. Health and Safety at Work etc. Act 1974 (“the 1974 Act”)
“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
3. Inquests
(a) Statutory basis
82. Section 16(7) provides that:
“Where a coroner resumes an inquest which has been adjourned in compliance with subsection (1) above – (a) the finding of the inquest as to the cause of death must not be inconsistent with the outcome of the relevant criminal proceedings.”
83. The Coroners and Justice Act 2009 received Royal Assent on 12 November 2009. Part 1 includes new measures concerning Coroners (notably the creation of a new national Coroner’s service led by a new chief Coroner and of a new system of secondary certification of deaths that are not referred to a Coroner) and the remaining provisions concern other criminal justice matters. Part 1 has not yet come into force.
(b) Relevant case law
“If it appears there are circumstances which, in a particular situation, mean in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner’s conclusion he cannot be criticised if he does not leave a particular verdict.”
“coroners should approach their decision as to what verdicts to leave on the basis that facts are for the jury, but they are entitled to consider the question whether it is safe to leave a particular verdict on the evidence to the jury i.e. to consider whether a verdict, if reached, would be perverse or unsafe and to refuse to leave such a verdict to the jury.”
COMPLAINTS
QUESTIONS TO THE PARTIES
Has the State fulfilled its obligation under Article 2 of the Convention to ensure accountability and punishment of State agents or bodies for their fatal shooting of Jean Charles de Menezes on 22 July 2005? In particular, did the failure to pursue criminal and/or disciplinary charges against individual police officers breach Article 2 of the Convention (Öneryıldız v. Turkey [GC], no. 48939/99, § 93, ECHR 2004 XII; Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 57, 20 December 2007; Branko Tomašić and Others v. Croatia, no. 46598/06, § 64, ECHR 2009 ... (extracts); Van Melle v. the Netherlands (dec.), no. 19221/08, 29 September 2009); and Kalender v. Turkey, no. 4314/02, § 52, 15 December 2009)?
In this respect, the Government are requested to submit all decisions of the Independent Police Complaints Commission as regards possible disciplinary charges against relevant officers.
