Printer FriendlyJean Charles de Menezes
The shooting of Jean Charles de Menezes on 22nd July 2005 caused widespread shock and alarm from all sections of society. Interestingly, media coverage from across the political spectrum has been largely sympathetic to the campaign for justice for Jean, with some of the most in depth and critical coverage coming from the traditionally right wing Daily Mail. The news coverage following the verdict at the inquest was almost uniformly sympathetic to the family and damning of the police, with only the Daily Express unable to resist the predictable column querying the young Brazilian’s immigration status.
Jean Charles was an entirely innocent man effectively executed on a busy underground carriage; if any shooting by the police was liable to result in an unlawful killing verdict and possible prosecution of the police officers, surely this was it…or was it?
Of course the horror of this individual shooting was set against the backdrop of the London suicide bombings and, as the police and those sympathetic to their predicament would say, Jean Charles was simply the 53rd victim of the 7th July bombers. The shooting was collateral fall out from the war on terror.
As one of the lawyers representing the family of the deceased and with experience of attempting to hold the police to account, right from the onset I could foresee significant obstacles to establishing that the shooting was unlawful. The police were likely to argue it was a lawful killing because the shooting occurred ‘as a consequence of a series of unfortunate coincidences’. I was not surprised that the CPS made a decision not to prosecute any individual officer, although somewhat intrigued by the decision to bring a Health and Safety prosecution. I feared that following that prosecution it might be argued that no inquest would be required or, that the scopeof the inquest would be narrowed down to an analysis of what happened on the tube carriage, with limited or no opportunity to explore the systemic failings that led to the fatal shooting.
Whilst inquests have produced unlawful killing verdicts, the police have become adept at challenging such verdicts in the higher courts even in cases where there is evidence to suggest the officers lied about the circumstances of the shooting. In the case concerning the shooting of Harry Stanley, following an unlawful killing verdict the police challenged the coroner’s ruling. In Sharman v HM Coroner for Inner North London [2005] EWCA Civ 967, it was held that it was unsafe and perverse on the evidence to leave a potential verdict of unlawful killing. The judge commented, “it is not enough, and simply does not follow, to assume that the availability of a verdict of unlawful killing, meaning in this case a verdict that beyond reasonable doubt the officers had no belief in an imminent threat to them, follows from the rejection as untruthful of the particular account that they gave. It was still necessary for the jury to look at the matter as a whole, and necessary for the coroner, in deciding whether to leave the matter to them, to look at the whole circumstances to see whether there was a realistic chance of it being possible to establish, beyond reasonable doubt, that the officers did not have the belief alleged.”
As we were approaching the conclusion of evidence at the inquest, those representing all the interested persons were invited to make representations as to what verdicts should be left to the jury. The evidence that had emerged showed that there were failings at every level of the police operation that had contributed to the shooting of an innocent man.
In summary these failings included:
The met policy and training for dealing with suspected suicide bombers was not fit for purpose;
The police had intelligence on Hussein Osman but failed to access this intelligence before Jean Charles was shot;
Only one poor quality image of Osman was used by the surveillance officers, but the police had access to much better images which would almost certainly have prevented the misidentification of Jean Charles;
By failing to ensure that firearms teams and a silver commander were deployed urgently to Scotia, a critical window of opportunity to stop Jean Charles before he entered the public transport system was lost;
The surveillance team failed to exercise tight control of the premises but they never got more than a fleeting glance of Jean Charles. However the Grey team leader was prepared to say he “believed [Jean Charles] to be him”;
There was a fundamental failure of critical communications between the command team, the surveillance team and the firearms team;
The firearms team were given an unbalanced briefing to the extent that they were ready to deliver a critical shot to any suspect suicide bomber, without being warned of the risks of uncertain identification;
The firearms officers were sent into a situation where the chances of arresting as opposed to shooting dead the suspect
were almost negligible;
The command team failed to ascertain that both the firearms team and the surveillance officers could have attempted to stop
Jean Charles before he entered the tube system.
I conducted a straw poll from other lawyers working in this field as to whether we should be arguing for unlawful killing or a narrative verdict or some combination of both. Almost without exception, those with the most experience in this area argued that we would have huge difficulties overcoming the current law in respect of unlawful killing and that even if we persuaded the coroner to leave such a verdict, the police would almost certainly seek a judicial review of the decision. Going for a narrative verdict on the other hand could produce a set of reasons which would effectively hold the police to account but without bumping up against the increasingly intractable case law.
I shared these comments with counsel and we began to formulate the position that tactically going for a narrative only verdict might be the best approach. However, when we discussed this approach with members of the family and the campaign group that were supporting them, they were shocked that we might not seek an unlawful killing verdict. Although this case (probably more than any other, historically) had received widespread coverage and been the subject of several highly critical reports, so far none of these had simply stated that the shooting was against the law. Whilst a lengthy list of critical findings might be of use, what the family wanted to hear and what the world wide public needed to hear, was the word “unlawful”.
We accepted that given the particular profile of this case, we should, at very least, make forceful submissions that the jury should be permitted to consider such a verdict. Our submissions were that there were two ways in which the jury might be directed to return an unlawful killing verdict. Firstly, in respect of the two shooters, the jury could return unlawful killing on the basis of murder: namely, if they considered that the shooters did not have an honest and genuine belief that Jean Charles de Menezes was a suicide bomber about to detonate a bomb. Secondly, we argued that the jury could decide that there was evidence amounting to gross negligence manslaughter in respect of three senior members of the command team (Cressida Dick, the Designated Senior officer, who took control of the operation; John MacDowall, the Gold commander who set the strategy for the operation and failed to keep it under review, and Vince Esposito, the firearms tactical adviser to Cressida Dick). We also argued that the jury should return a narrative verdict in respect of other systemic failings contributing to the death.
Our submissions were roundly opposed by the five legal teams representing different subsections of interested persons within the Metropolitan police. The coroner concluded, following Sharman, that unlawful killing should not be left in respect of the shooters. He also concluded, in considering the four elements of gross negligence manslaughter, that whilst a duty of care might exist in respect of the operation (but only at the stage that the firearms team was sent in – the Commissioner’s team arguing that no duty of care existed at all), there was no breach of that duty and, hence, there was no need to consider whether the breach was causative of death or so serious that it might amount to a criminal failing. He then proposed that the jury could return either lawful killing or an open verdict and proposed a series of questions to which the jury could only answer ‘yes’ or ‘no’.
Whilst for us the lawyers, the coroner’s decision was disappointing but not totally surprising, the media and public response was that of shock and disbelief. There then followed detailed discussion and debate as to if and how we should challenge the coroner’s ruling. To cut a long story short, following further submissions which resulted in some additional questions for the jury and a failed expedited judicial review, the family instructed us to withdraw from the proceedings and there followed a silent protest in court which captured further media coverage and fury from the coroner and remaining legal teams. Ultimately, the jury took over a week to deliver probably the best possible verdict given the limitations that were placed on them. The end result was that whilst we never got our one word verdict, the overall message to the public, through media reporting was a damning critique of not only the police operation but also the coroner’s ruling.
Harriet Wistrich is a solicitor at Birnberg Peirce and acted for the de Menezes family
