UK did not violate its duty under art 2 by failing to prosecute police officers for the fatal shooting of Jean Charles de Menezes


Re: Armani Da Silva v UK (App No. 5878/08)

The applicant, Ms Da Silva, applied to the ECtHR challenging that the state had not complied with their duty under the ECHR, art 2, to ensure accountability and punishment of State agents for the fatal shooting of her cousin, Jean Charles de Menezes. In particular, her challenge centred on the decision taken by the CPS not to prosecute any individual for the death following the report by the IPCC, even though it stated Menezes had been killed because of mistakes that could and should have been avoided. Ms Da Silva also complained that the definition of self-defence in the UK was wrong because the officers only had to prove an honest belief that the use of force was absolutely necessary.

The court ruled that there was no violation of art 2. It 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 IPCC, the CPS, the criminal court and the Coroner and jury during the Inquest.

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, it reasoned that the decision not to prosecute any individual officer 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 in respect of any criminal offence.

In relation to the issue Ms Da Silva raised in regards to the self-defence test, the court stated that the test in the UK was not significantly different than that of the ECtHR court. It also highlighted that all the independent authorities considering the actions of the two special firearm officers responsible for the shooting had carefully examined the reasonableness of their belief that Jean Charles de Menezes had been a suicide bomber.

Clare Montgomery QC and Hugh Southey QC were involved in this case.

Alex Bailin QC acted for the Equality and Human Rights Commission which intervened in the case