UK’s failure to prosecute over fatal De Menezes shooting did not violate article 2

Patricia Armani Da Silva, Mr de Menezes’ cousin, complained that the UK 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.

Having regard to the proceedings as a whole, the Court found that the UK authorities had not failed in their obligations under article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which was capable of identifying and – if appropriate – punishing those responsible.

In particular, the Court considered that all aspects of the authorities’ responsibility for the fatal shooting had been thoroughly investigated. Both the individual responsibility of the police officers involved and the institutional responsibility of the police authority had been considered in depth by the Independent Police Complaints Commission (IPCC), the Crown Prosecution Service (CPS), the criminal court and the coroner and jury during the inquest.

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, 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 application was lodged with the ECtHR on 21 January 2008. Ms Armani Da Silva complained about the decision not to prosecute any individuals for her cousin’s death. In this regard, she alleged that the evidential test used by prosecutors to determine whether criminal charges should be brought – namely, that the prosecutor must consider that a conviction was more likely than not – was too high a threshold, particularly in cases concerning the use of lethal force by state agents. She also took issue with the definition of self-defence in the UK, as the officers who shot Mr de Menezes only had to show that they had an honest belief (as opposed to an honest and reasonable belief) that the use of force had been absolutely necessary. The application was lodged with the ECtHR on 21 January 2008.

The Court found that the test for self-defence in England and 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. In any case, the Court noted that all the independent authorities considering the actions of the two SFOs responsible for the shooting 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 Court also accepted that the evidential test applied by the CPS in deciding whether to prosecute, had been within the state’s discretion (“margin of appreciation”) to decide on such matters. More particularly, it noted that the test applied in England and Wales was not arbitrary, having been the subject of frequent reviews, public consultations and political scrutiny.

Furthermore, there was no uniform approach among contracting states to the evidential test employed and, in any case, the test in England and Wales reflected the jury system that existed there. Finally, the Court held that article 2 did not require the evidential test to be lowered in cases where deaths had occurred at the hands of state agents. In addition, the Court found, overall, that it could not be said that the authorities had failed to ensure that those responsible for Mr de Menezes’s death had been held accountable.

Nor was there anything to suggest that those bodies had failed to secure the relevant physical or forensic evidence, or to seek out relevant witnesses or relevant information. The IPCC in particular took witness statements from nearly 890 people and collected more than 800 exhibits. Institutional and operational failings were identified and detailed recommendations made to ensure that the mistakes leading to the death of Mr de Menezes were not repeated.

These institutional failures resulted in the conviction of the police authority for offences under the 1974 Act. There was no evidence before the Court to indicate that the “punishment” (a fine of GBP 175,000 and costs of GBP 385,000) had been excessively light for offences of that nature. Moreover, later, when his family brought a civil claim for damages, the MPS agreed to a settlement with an undisclosed sum being paid in compensation. The Court noted that 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.

However, the decision not to prosecute any individual officer had not been due to any failings in the investigation or the state’s tolerance of or collusion in unlawful acts; rather, it had been due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there had been insufficient evidence against any individual officer to prosecute in respect of any criminal offence.

In conclusion, having regard to the proceedings as a whole, the Court found that the domestic authorities had not failed in their obligations under article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which had been capable of leading to the establishment of the facts, a determination of whether the force used had or had not been justified in the circumstances and of identifying and – if appropriate – punishing those responsible. Accordingly, the Court found that there had been no violation of the procedural aspect of article 2 of the Convention.

Judges Karakaş, Wojtyczek and Dedov expressed a joint dissenting opinion. Judge López Guerra also expressed a dissenting opinion.