TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): There is a serious risk in our submission that the filter prevented officers who were guilty of fatal offenses from being held to account.
AP1 (Applicant): I turn briefly to the role of the court in reviewing prosecution decisions.
AP1 (Applicant): The government rely on judicial review of the prosecution decision as an aspect of the investigation.
AP1 (Applicant): However, there is no dispute that the court's assessment of the prospects of a prosecution succeeding is limited to determining whether the prosecution service reached an irrational conclusion.
AP1 (Applicant): That is a high threshold.
AP1 (Applicant): The English courts are reluctant to conclude that an assessment of credibility is irrational.
AP1 (Applicant): They regard it as difficult to categorize a conclusion about the credibility of a witness as irrational.
AP1 (Applicant): There is no dispute that could mean that the administrative court could conclude that the prospects of success are significantly better than 50% had it determined the issue directly.
AP1 (Applicant): However, it will not intervene as it will conclude that it was open to the prosecution service to reach a different conclusion and conclude that the prosecution was less likely than not.
AP1 (Applicant): It's the combination of the tests applied by the prosecution standard, by the prosecution service, rather, and the standard of review that is particularly objectionable.
AP1 (Applicant): It means that the courts do not necessarily intervene in cases where there is a strong prospect of success.
AP1 (Applicant): As a consequence, the possibility of judicial review provides no real safeguard against strong cases not being prosecuted.
AP1 (Applicant): It means that there are cases where there will be sufficient evidence to justify a finding of guilt, where the person could have been convicted if the case had proceeded to trial, but where the domestic court will not intervene despite the fact it's of the opinion that there are strong prospects of success.
AP1 (Applicant): All of this means, in our submission, that there is a failure to carry out an effective investigation.
AP1 (Applicant): That's not about a failure to achieve a particular result.
AP1 (Applicant): It's about a failure to deploy evidence at trial where there's sufficient evidence to justify a conviction.
AP1 (Applicant): That, then, means I need to turn to the issue of whether this is material on the facts, despite the finding of the coroner that there was insufficient evidence, rather, to leave unlawful killing to the jury.
AP1 (Applicant): In that context, the first issue to be considered is the test that needs to be applied domestically when determining whether officers acted in self-defence.
AP1 (Applicant): The test for self-defence applied by the prosecution service and the coroner was critically different to that which this court applies.
AP1 (Applicant): This meant that the investigation did not satisfy the Article 2 procedural duty for two reasons.
AP1 (Applicant): Firstly, it failed to determine whether Mr de Menezes' killing was justified as required by the case law of this court.
AP1 (Applicant): In addition, it failed to hold firearms officers to account.
AP1 (Applicant): In our submission, there are two limbs to the self-defence test developed in the case law of this court.
AP1 (Applicant): The first limb is to ask whether the officers honestly believed there to be an imminent threat.
AP1 (Applicant): Now, that honest belief must be perceived for good reasons to be valid at the time.
AP1 (Applicant): That means that firearms officers must have good reasons in the circumstances as they perceive them to be for their belief.
AP1 (Applicant): The second limb is whether the force was absolutely necessary in response to the threat.
AP1 (Applicant): This case concerns the first, not the second limb.
AP1 (Applicant): That's important because some of the case law cited by the UK government, such as Bennett in the United Kingdom, is concerned with the second limb.
AP1 (Applicant): The approach of the prosecution service and the coroner was critically different to that of this court.
AP1 (Applicant): Under the domestic court, the officers had a defence if they honestly believed Mr de Menezes was an imminent threat, even if their belief was mistaken and that mistake was wholly unreasonable.
AP1 (Applicant): They need have no good reasons for their belief whatsoever.
AP1 (Applicant): I should make it clear, we don't argue that officers need to demonstrate there were in fact good reasons for their actions.
AP1 (Applicant): What we do argue is that there need to be good reasons for the actions of the officers on the basis of what was seen and known by them.
AP1 (Applicant): That's important because the UK government at times appears to argue we go further.
AP1 (Applicant): Now, the absence of any need for good reasons as a matter of domestic law is clear from the judgment of the Supreme Court in Ashley.
AP1 (Applicant): This makes it clear that in criminal law and therefore at an inquest, a defence can be based on an honest but unreasonable belief of threat.
AP1 (Applicant): In Ashley, it was said a person who honestly believes that he's in danger of an imminent deadly attack and responds violently in order to protect himself from that attack should be able to plead self-defence as an answer to a criminal charge.
AP1 (Applicant): It was also said that it does not matter whether his mistake has been, objectively speaking, a reasonable one for him to have made.
AP1 (Applicant): Again, we can supply a copy of that if necessary.
AP1 (Applicant): To the extent this is in dispute, which is unclear, the government identifies no authority to suggest this is wrong.
AP1 (Applicant): And of course, our submissions on this are supported by the intervener at paragraph 17 of their submissions, which we submit is important given the intervener's statutory role.
AP1 (Applicant): Now, the difference is well illustrated by the facts of this case.
AP1 (Applicant): Police...
AP1 (Applicant): Turning to the difference between the court's case law and the domestic case law on the facts of this case, police shooting cases are the most serious cases because they involve a deliberate use of lethal force.
AP1 (Applicant): However, almost all of those cases are likely to involve officers arguing they acted in self-defence.
AP1 (Applicant): This is precisely what happened in this case.
AP1 (Applicant): Proving that the officers were lying about their honest belief is inherently difficult.
AP1 (Applicant): That prevents consideration of issues such as whether there was any justification for the belief.
AP1 (Applicant): Applying domestic law, the coroner's and DPP's approach had to be that the officers' perception of Mr. Domenes'
AP1 (Applicant): was determinative.
AP1 (Applicant): The officers needed to have no good reason for their belief that force was justified.
AP1 (Applicant): All they had to show was that it was possible they honestly believed Mr. Domenes' was a threat.
AP1 (Applicant): If so, the shooting was lawful under domestic law.
AP1 (Applicant): The injustice of this is clear not just in this case, it's also clear from a well-known recent example of a police shooting in the US.
AP1 (Applicant): The court is likely to have seen the video of the shooting of Walter Scott.
AP1 (Applicant): He was a black American shot in the back by a police officer in North Carolina.
AP1 (Applicant): From the video, it would appear there can be no objective justification for that shooting on the basis that the officer would have seen a man running away.
AP1 (Applicant): However, English law would provide a defense if the officer was able to argue that he had an honest belief he was under threat.
AP1 (Applicant): The approach in domestic law is important for two reasons.
AP1 (Applicant): Firstly, it explains why it can be difficult to obtain sufficient evidence in a case like this.
AP1 (Applicant): How can the prosecution prove that an officer is not telling the truth when he says he has an honest but mistaken belief?
AP1 (Applicant): That explains why the test applied when considering self-defense is relevant to the coroner's decision.
AP1 (Applicant): In this case, there was a real issue whether there was an objective justification for the shooting on the basis of what would have been seen.
AP1 (Applicant): For example, the clothing worn by Mr. Domenes
AP1 (Applicant): was not of a bulky nature as might have been expected in the case of a suicide bomber.
AP1 (Applicant): However, proving the officers were lying was difficult.
AP1 (Applicant): As a consequence, it was difficult to show there was sufficient evidence to leave the matter to the jury.
AP1 (Applicant): Overall, the result of this is that state agents will be able to avoid accountability despite the absence of objective justification for their actions.
AP1 (Applicant): Secondly, but linked to the point just made, we argue that domestic court approach is incompatible with the requirements of Article 2 in light of the case law, because that case law demonstrates that it's not acceptable to have such a subjective test.
AP1 (Applicant): Our written submissions demonstrate how the case law from McCann onwards makes it clear that officers must have a good reason for an honest belief.
AP1 (Applicant): The case law set out at paragraph 130 onwards of the applicant's written submissions makes this clear.
AP1 (Applicant): I should add, we would also argue that there is good reason for that test in the court's case law.
AP1 (Applicant): It's intended, we would submit, to prohibit the reckless use of lethal force by police officers in circumstances in which they are intending to use potentially lethal force.
AP1 (Applicant): As a consequence of what I've just submitted, we do submit that the decision of the coroner is no answer to the applicant's complaints, because it was based on a legal test that's not compatible with Article 2.
AP1 (Applicant): It's a test that fails to hold state agents to account when they act without justification.
AP1 (Applicant): In addition, we submit that the investigation did not satisfy the Article 2 procedural duty.
AP1 (Applicant): That's because it failed to determine whether Mr. de Menezes' killing was justified
AP1 (Applicant): within the meaning of Article 2.
AP1 (Applicant): It did not ask whether the mistaken belief that Mr. de Menezes posed a threat
AP1 (Applicant): was based on good reasons.
AP1 (Applicant): Even if I'm wrong in relation to the law on self-defense, I would argue that there are other reasons why the conclusion of the coroner does not undermine the submissions I made about the prosecution test.
AP1 (Applicant): Firstly, the applicant has never accepted that the decision of the coroner was lawful.
AP1 (Applicant): I accept that wasn't challenged fully.
AP1 (Applicant): However, the problem with a judicial review is that it would merely have resulted in a second inquest.
AP1 (Applicant): That would not have resulted in a prosecution.
AP1 (Applicant): In addition, the judicial review suffered from the problem I've already identified, which is the reviewing court was reluctant, essentially, to conclude that a decision of a coroner was irrational.
AP1 (Applicant): The second point I'd make is that in any event, the prosecution conducted a subsequent independent review of the merits of the prosecution.
AP1 (Applicant): They did that applying the policy and law that I've addressed already.
AP1 (Applicant): And that decision, applying that policy and law, concluded that there was insufficient evidence.
AP1 (Applicant): It's that decision that prevented a prosecution.
AP1 (Applicant): Finally, there were offenses that were not considered by the coroner, which are potentially important, as they're intended to protect life.
AP1 (Applicant): For example, it's possible that individuals were guilty of health and safety offenses intended to protect life.
AP1 (Applicant): The decision to bring no prosecution for those offenses was based on the test that we argue is not compatible with Article 2.
AP1 (Applicant): There is a final issue raised by the court's questions, which is the extent to which disciplinary proceedings can fill the gap.
AP1 (Applicant): The starting point when considering that is the point I've already made at the start.
AP1 (Applicant): That is the fact that it is particularly important that state agents are held to account in this context.
AP1 (Applicant): There is an obvious difference between criminal proceedings and disciplinary proceedings.
AP1 (Applicant): A criminal conviction is essentially a finding that an individual has failed to comply with universal standards that we are all expected to comply with.
AP1 (Applicant): It results in sanctions, such as imprisonment, that are intended to reflect the seriousness of the contact.
AP1 (Applicant): In contrast, a finding of a disciplinary offense is essentially a finding that a person has failed to comply.
AP1 (Applicant): Excuse me again.
AP1 (Applicant): As I was saying, a finding of a disciplinary offense is essentially a finding that a person has failed to comply with the standards associated with a particular employment.
AP1 (Applicant): As a consequence, the sanctions for a disciplinary offense are essentially focused on suitability for employment.
AP1 (Applicant): These matters mean that disciplinary offenses do not achieve the objectives that I identified at the start.
AP1 (Applicant): Firstly, the need to ensure that the rule of law is maintained will be undermined if disciplinary offenses are pursued as an alternative to criminal proceedings.
AP1 (Applicant): That is because public perception will be that state agents are escaping appropriate justice.
AP1 (Applicant): In addition, the need to ensure deterrence will be undermined because sanctions are not sufficient.
AP1 (Applicant): There are other issues that arise in the particular context of England and Wales at the time of this case.
AP1 (Applicant): We would argue there was a lack of independence in relation to disciplinary proceedings.
AP1 (Applicant): There was an ability to avoid charges by retiring.
AP1 (Applicant): The proceedings were of a private nature.
AP1 (Applicant): Details of this are set out at paragraph 61 of the applicant's submissions.
AP1 (Applicant): However, the key point about disciplinary proceedings is that previously made.
AP1 (Applicant): Disciplinary proceedings do not reflect the seriousness of the issues.
AP1 (Applicant): I don't really think that's disputed by the UK government.
AP1 (Applicant): To conclude, in light of the submissions already made, we submit, firstly, the decision not to prosecute in this case applied a test that may have prevented a prosecution, despite there being sufficient evidence and the fact the jury could, in fact, have convicted.
AP1 (Applicant): The administrative court review of the decision compounds the problem.
AP1 (Applicant): That's because it did not determine whether there was sufficient evidence to justify a conviction.
AP1 (Applicant): The decision of the coroner that there was insufficient evidence does not mean that the approach of the prosecution service is immaterial.
AP1 (Applicant): We make that point for a range of reasons.
AP1 (Applicant): But the most important is that by merely considering whether the officers held an honest belief, he did not apply a legal test compatible with Article 2.
AP1 (Applicant): And we would also argue that that test, the test that was applied in relation to self-defense, is itself not compatible with Article 2.
AP1 (Applicant): And finally, we would argue that the possibility of disciplinary proceedings does not save matters.
Dean Spielmann (JudgeP): Thank you very much. I would like to invite the judges of the Grand Chamber to put any questions, if any, they may have to the party.
Mark Villiger (Judge): It concerns the issue of self-defense before us today, self-defense of the officers of the unit of SO19 who were deployed on 22nd of July, 2005, and who eventually killed Mr. de Menezes.
Mark Villiger (Judge): It concerns the briefing of these officers.
Mark Villiger (Judge): When they reported on 22nd of July, 2005, at 0745 to duty, they were briefed as follows.
Mark Villiger (Judge): I have this from the documents before us.
Mark Villiger (Judge): First, they were told that they might be required to use unusual tactics.
Mark Villiger (Judge): When asked for clarification, the briefing went on.
Mark Villiger (Judge): I quote from the documents, if they were deployed to intercept a subject and there was an opportunity to challenge, but the subject was noncompliant, a critical shot could be taken, end of quote.
Mark Villiger (Judge): My question concerns these instructions at the briefing, according to which the special firearms officers were instructed to shoot to kill, critical headshot.
Mark Villiger (Judge): I would like to know the party's views on whether this briefing, in fact, permitted the special firearms officers to differentiate, differentiate, to react proportionally, in particular, whether the special firearms officers could have employed less far-reaching means, namely nonlethal shots, which could have prevented the presumed suicide attack while not killing Mr de Menezes.
Dean Spielmann (JudgeP): Thank you very much, judge Pinto de Albuquerque.
Paulo Pinto de Albuquerque (Judge): My questions are to the government.
Paulo Pinto de Albuquerque (Judge): Is the UK government aware that Article 31c of the Rome Statute, which was, by the way, the subject of extensive negotiations, and is today considered as customary international law, is the UK government aware that this provision warrants that the person acts reasonably, I'm quoting from the provision, reasonably to defend himself or herself or another person and in a manner proportionate to the degree of real present danger to the person attacked or the third person?
Paulo Pinto de Albuquerque (Judge): Is the government of the UK aware of the UN basic principles on the use of force by law enforcement officials, which provide that intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life and only when less extreme means are insufficient to achieve this objective, and that in any case, officials should exercise restraint in such use in proportion to the seriousness of the offense?
Paulo Pinto de Albuquerque (Judge): Is the UK government aware that the UN Code of Conduct for law enforcement officials, as well as the OSCE guidebook on the democratic policing, also require that self-defense be not only proportionate, but reasonable and unavoidable?
Paulo Pinto de Albuquerque (Judge): Final question, is the UK government aware of these universal standards, according to which the test for self-defense is based on a crucial, necessary, objective element of reasonableness of the belief of an imminent attack, or does the government of the UK consider that it is not bound by any of these universal standards, including those set by customary international law?
Dean Spielmann (JudgeP): The court will now...
Dean Spielmann (JudgeP): Oh, sorry.
Linos-Alexandre Sicilianos (Judge): I have one question to the government.
Linos-Alexandre Sicilianos (Judge): You repeatedly invoke the margin of appreciation doctrine.
Linos-Alexandre Sicilianos (Judge): Article 2 is an underrogable right.
Linos-Alexandre Sicilianos (Judge): Do you believe that margin of appreciation is applicable in relation to such a provision?
Linos-Alexandre Sicilianos (Judge): And if yes, to which extent?
Luis López Guerra (Judge): My question to both parties concerns the application presented to the High Court by the applicant for judicial review of the initial decision of the director of public prosecution, the decision not to prosecute any individual police officer. The High Court, a division of High
Luis López Guerra (Judge): Court, based its dismissal of this application on the so-called Manning test, derived from the case R versus the director of public prosecution, Ex parte Manning, which seems to have been decisive in this case. According to this case law in Manning, a court would accord great
Luis López Guerra (Judge): weight to the judgment of experienced prosecutors concerning prosecution decisions.
Luis López Guerra (Judge): Now, my question is, up to what point does this Manning case law represent an impediment or a strong difficulty for the courts to review DPP decisions? Is there a presumption in favor
Luis López Guerra (Judge): of the DPP decisions? In that case, what is the extent, what is the intensity of this
Luis López Guerra (Judge): presumption? Up to what point in practice the courts are bound to follow the DPP initial
Luis López Guerra (Judge): decision to prosecute, or, as is the case here, not to prosecute? What is the strength
Luis López Guerra (Judge): of this presumption? Thank you.
Dean Spielmann (JudgeP): I have a question concerning to both parties concerning the criminal trial in 2007.
Dean Spielmann (JudgeP): So the trial brought against the Metropolitan Police as a separate entity.
Dean Spielmann (JudgeP): No individual has been prosecuted and I would like to have more details concerning why under English law it was not possible to prosecute individuals.
Dean Spielmann (JudgeP): Is it related to the causal link or are there any other reasons if maybe both parties could elaborate on that?
Dean Spielmann (JudgeP): So if there are no other further questions, the Court will rise for 30 minutes following which the parties will return for a second round of short pleadings to respond to the submissions in the first round and to answer also the judges' questions.
Dean Spielmann (JudgeP): I give the floor to Ms. Montgomery.
GR1 (Government): may I start, perhaps, with a question that was posed and suggested that the UK government's position was that some sort of margin appreciation ought to apply to the primary obligation under Article 2.
GR1 (Government): That is not the submission of the government.
GR1 (Government): Obviously, those are unqualified rights, and we do not suggest any qualification by way of margin is appropriate.
GR1 (Government): Where the margin of appreciation is relevant is in relation to the investigative obligation, because, as Mr. Savvy has already indicated,
GR1 (Government): it is an obligation of means rather than results.
GR1 (Government): And clearly, the way in which an investigative obligation is respected and enforced in any member state will vary according to the system employed in that member state.
GR1 (Government): And we would respectfully suggest that choices such as whether there is an examining judge who hears witnesses, or, as in the UK, an independent CPS prosecutor who doesn't hear witnesses, that is a matter for the national authorities, provided the means are sufficient to ensure the investigative obligation is met.
GR1 (Government): So that's the only claim that we make to any margin of appreciation.
GR1 (Government): What is important is there should be independent, impartial, and detailed scrutiny at each stage, at finding the facts, at determining what proceedings should be brought, and in reviewing any of those decisions if decisions are made not to prosecute.
GR1 (Government): And all of those are provided by independent bodies in the English system.
GR1 (Government): So can I turn, then, please, to deal with the standard of the CPS decision-making, and also to deal with the question posed by the president and by the Spanish judge in relation to both the decision-making by the CPS and the review by the administrative court.
GR1 (Government): The difference between the two parties is the applicant would wish there to be a prosecution in all cases, other than where the evidence, even taken at its very highest, could not lawfully end in a conviction, because that is the Galbraith test.
GR1 (Government): I believe that most right-thinking people would recognize that cannot be the prescription for what cases should go to court, because it would mean that cases that, objectively, will obviously fail, but nevertheless, when the evidence is taken at its very highest, might possibly be believed, would go to court.
GR1 (Government): They would result in a very low conviction rate.