Grand Chamber judgment in Jean Charles de Menezes case

Today, the Grand Chamber of the European Court of Human Rights gave its judgment in the case brought by the family of Jean Charles de Menezes, Da Silva v. United Kingdom application 5878/08, 30 March 2016. It significantly clarified the law on self-defence, but concluded that the UK had not breached the procedural duty within article 2 of the Convention.

 

On 22 July 2005 Mr de Menezes, a 27-year-old Brazilian electrician, was on his way to work when officers mistook him for a suicide bomber amid a bungled Metropolitan Police surveillance operation in south London. Mr de Menezes was held down and shot seven times in the head on a Tube train at Stockwell station.

 

There were numerous and serious criticisms of the operation that led to his death and of the shooting itself. Despite this, no police officer has been prosecuted. This is consistent with a wider context which suggests that the current legal system is not capable of holding state agents to account for fatal offences. Since 1990 until the Grand Chamber hearing in 2015 there were 995 deaths in police custody or following police contact and 55 fatal shootings by police officers. Yet in no case has any police officer been convicted of a criminal offence. In a press briefing regarding this case, Deborah Coles notes: “This highlights a crisis in confidence in the ability of the UK criminal justice system to hold police officers accountable.

 

The application brought by the family of Mr de Menezes sought to make changes to the law to ensure that the police are brought to account for committing fatal offences.  

 

The applicants argued that the legal framework and investigation involving Mr de Menezes’ death was incompatible with article 2 of the European Convention on Human Rights. That was for two main reasons.

 

The first was that, in considering whether to bring a prosecution for a life-threatening offence against a state agent, the Director of Public Prosecutions applies too high a threshold. At present there must be more than 50% prospects of a conviction. But it is often difficult to predict whether a jury will convict, particularly if the prospects depend on the defendant’s credibility and the prosecutor has not had a chance to assess that credibility by observing the defendant giving oral evidence. The lawfulness of a police shooting often hinges on credibility, and in particular whether the officer honestly believed there was an imminent threat. That means that the current high threshold is likely to mean that in a substantial number of cases, the DPP will not proceed with a prosecution which would, if it had gone to trial, have resulted in conviction. Most other comparable countries apply a lower threshold for prosecution than we do, and indeed our threshold was lower until the 1980s. The applicants argued that the evidential test fails to meet the requirement of article 2 for there to be a rigorous system that ensures there is a conviction if that is justified by the evidence.  

 

The second ground of the application was that the test for self-defence in criminal law is contrary to article 2. There are two limbs to that test in domestic criminal law. Under the first limb, the jury must consider whether the defendant had an honest belief that there was an imminent threat. The second limb asks whether the force used was reasonable in the circumstances. The applicants argue that limb 1 is deficient because it means that an officer will have a defence if he or she honestly believed there was a threat, even if that belief was mistaken, and even if the mistake was wholly unreasonable.

 

For example, even if the officers clearly saw Jean Charles was sitting still in his tube seat, he was entirely compliant, he plainly was carrying no bomb, he had no means of putting others at any risk, and the officers had no good reason for thinking he was an imminent threat, they could still have a defence. Similarly, the officer who shot Walter Scott in the back whilst he was running away unarmed could have a defence if it was possible he established a mere possibility that he somehow honestly believed Mr Scott was a threat. His belief need not be based on reasonable grounds, and could therefore be based on a racist view that black men are unusually dangerous.

 

The applicants argued that under the European Convention test, as under the approach of domestic courts in a civil claim for damages, an honest but irrational belief could not found a defence. The defendant must have a good reason, in the circumstances as he or she perceives them to be, for any belief that there is an imminent threat. The applicant argues that, insofar as life-endangering offences by state agents are concerned, the criminal law must apply the same approach.  

 

The judgment

 

The Grand Chamber dismissed the application, concluding that there was no violation of the procedural aspect of Article 2 of the Convention.

 

Rejecting the first ground, the Grand Chamber decided that the CPS evidential test in England and Wales was not so high as to fall outside the State’s margin of appreciation. It is not an arbitrary test. It has been the subject of frequent reviews, public consultations and political scrutiny. In particular, detailed reviews of the Code were carried out in 2003, 2010 and 2012. It is also a threshold that applies across the board, that is, in respect of all offences and by whomsoever they were potentially committed.

 

Rejecting the second ground of the application, the Grand Chamber significantly clarified the Strasbourg test on self-defence. It said that reasonableness is not "a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held… the principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary. In addressing this question, the Court will have to consider whether the belief was subjectively reasonable, having full regard to the circumstances that pertained at the relevant time. If the belief was not subjectively reasonable (that is, it was not based on subjective good reasons), it is likely that the Court would have difficulty accepting that it was honestly and genuinely held.” §246-248. In consequence, the Grand Chamber decided that the UK's self-defence test was not significantly different from the Strasbourg court's own standards.

 

The change in the law was recognized in the dissenting opinion of four judges. Three of the judges commented: “in the instant case the majority seem to reinterpret the existing case-law by putting the emphasis on the subjective element and by diminishing the importance of the objective element. In our view, such an approach is not acceptable. It puts citizens’ lives at risk in the context of police operations because acts committed by the police in putative self-defence as a result of gross negligence may become immune from criminal liability.” The four judges considered that the UK’s wholly subjective test for self-defence did not focus on the crucial question of whether the error of the officers involved who decided that Mr de Menezes posed a risk was justified. Under English law the investigation will not be adequate and will not always be able to lead to punishment in cases where police officers use lethal force in putative self-defence. The four judges essentially accepted the applicant’s arguments, and concluded that there was a violation of the article 2 procedural duty. 

 

A link to the judgment is here.

 

Media includes: BBC and The Guardian

 

Henrietta Hill QC and Adam Straw, together with Michael Mansfield QC and Hugh Southey QC, are instructed by Harriet Wistrich and Marcia Willis-Stewart of Birnberg Peirce on behalf of the family of Mr de Menezes.

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