Da Silva v United Kingdom (no. 5878/08) (30 March 2016)
After a young Brazilian man was mistakenly shot and killed by UK police in 2005, the Grand Chamber of the European Court of Human Rights (Court) has found that the manner in which the investigation into the shooting was conducted did not constitute a breach of the procedural duty contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). In particular, the Court concluded that the decision not to prosecute any individual officer was not due to any failing in the investigation or any unlawful acts. Rather, it was due to the fact that the prosecutor had considered all of the facts and concluded that there was insufficient evidence against any individual officer to prosecute.
On 7 July 2005, four suicide bombers infamously detonated explosions in London’s underground train network and on a London bus. It was believed by authorities that further attacks were planned in the following days. On 21 July 2005, four explosive devices were located at various locations in London.
One of the suspects was Hussain Osman, who lived at 21 Scotia Road. On 22 July 2005, a surveillance team was deployed to Scotia Road, who were to be joined by a team of Specialist Firearms Officers (SFOs), who would ordinarily intercept and arrest suspects. However, the SFOs were not deployed in time to intercept anyone leaving the property under surveillance.
Mr Jean Charles de Menezes lived at 17 Scotia Road, which was accessed by the same doorway as 21 Scotia Road. That morning, when he left his apartment, he was believed to be Mr Osman and was followed by the surveillance officers. The operation strategy was to intercept individuals leaving the premises, but this was not possible because the SFOs had not yet been deployed.
At no stage was a conclusive positive identification made. However, it was believed that Mr de Menezes was Mr Osman throughout the operation. He was followed for a period and ultimately onto the tube. There he was intercepted by two SFOs, shot several times and killed.
The case was referred to the Independent Policy Complaints Commission. Institutional and operational failings were identified and detailed recommendations were made to ensure mistakes were not repeated. However, it was determined by the prosecutor that there was insufficient evidence against any individual officer to make a conviction more likely than not and to therefore enable an individual prosecution to proceed.
The case centred on the procedural limb of Article 2, which enshrines the right to life. The dispute about the substantive limb was settled between the parties by payment of compensation to Mr de Menezes’ family.
Article 2 requires authorities to conduct an effective investigation capable of leading to the establishment of the facts; a determination of whether the force used was or was not justified in the circumstances; and of identifying and, if appropriate, punishing those responsible.
The Applicant argued that:
- the evidential test, that conviction is more likely than not, was too high; and
- the law of self-defence in England and Wales, which centres on honest belief, rather than reasonableness, falls short of the procedural requirements of Article 2.
The Court found that the evidential test in the UK (conviction being more likely than not) does not bring it outside the State’s “margin of appreciation” in implementing Article 2. The Court noted that there is nothing in the case law to support the proposition that the threshold should be lowered in cases involving the use of force by State agents. The Court cast doubt over whether a lower test would have led to individual prosecutions in any event.
The Court found that the definition of self-defence in England and Wales did not represent a significant departure from the definition adopted by the Court. In this regard, the majority found that the matter of reasonableness is not treated as a separate requirement, but is relevant to determining whether a belief (in this case that Mr de Menezes was a suicide bomber) was honestly and genuinely held. The Court highlighted that the investigation obligation is one of means and not result and that the test applied in the investigation was consistent with Article 2.
The Court concluded that whilst the death of Mr de Menezes was tragic and his family’s frustration understandable, the institutional and individual responsibility of those involved were considered in depth by independent agencies. The decision not to prosecute any individuals was not due to any failings in the investigation. Rather, after weighing the evidence, an independent prosecutor decided it was insufficient to prosecute any of the individuals involved. Therefore, the Court found that there was no violation of the procedural aspect of Article 2 of the Convention.
Four judges reaches a different conclusion. They applied the international standards on the use of force by police in self-defence. The test focuses on necessity and unavoidability, with objective grounds for justifying an error as to factual circumstances, rather than an honest belief.
On one hand, it may be said that the lack of individual prosecutions in circumstances where significant institutional responsibility was identified is an erroneous outcome. It was certainly the view of the victim’s family that the decision allowed police to avoid accountability.
However, the decision appropriately focused on the procedural aspect of the investigation process, rather than its outcomes. The case followed changes adopted by Strasbourg, with the support of the UK, to enlarge each signatory’s “margin of appreciation”.
Further, it is noteworthy that the Metropolitan Policy Authority was found liable and penalised for failing in the planning and implementation of the operation, meaning that whilst personal accountability was avoided, institutional accountability was not.
The full text of the decision can be found here.
Alina Leikin is a Solicitor at King & Wood Mallesons.