TrustHLT/LaCour huggingface dataset:
GR1 (Government): And as the English court see it, it would undermine the confidence of the British people in the system of justice if there were a constant stream of prosecutions that failed, leaving aside, for the moment, the question of cost to both defense and prosecution in following a process where every case, no matter what its merits, were brought to trial.
GR1 (Government): We submit that determining whether a case is objectively can be said to have a reasonable prospect of conviction is the appropriate point at which to draw the line.
GR1 (Government): There has to be a limit, and the issue is where that limit should be set.
GR1 (Government): And that is the considered view of the United Kingdom.
GR1 (Government): In fact, as I will hope to demonstrate, many of the decisions were not taken because the decision not to prosecute individuals was at that point on the line, but often because of problems about proving, even to a basic standard, the elements of the offense.
GR1 (Government): So the president asked for an explanation.
GR1 (Government): There is a detailed explanation in the decision of the court, the administrative court in the United Kingdom, which is available.
GR1 (Government): So if I paraphrase because of pressure of time, you'll forgive me.
GR1 (Government): But effectively, in relation to murder and manslaughter, there were problems of causation for anyone further up the chain of command than the two officers who shot Mr.
GR1 (Government): de Menezes.
GR1 (Government): So they could not be prosecuted for murder or manslaughter.
GR1 (Government): There was an issue in relation to gross negligence manslaughter in relation to people lower down the chain because they couldn't be said to have taken on a duty of care because they weren't in command of the operation.
GR1 (Government): Those who were in the command of the operation, Commissioner Dick and above, were recognized as having that duty of care.
GR1 (Government): But it was considered, because of the circumstances, both the senior officers in command had had virtually no sleep.
GR1 (Government): I'm sure the court's familiar with the background.
GR1 (Government): 52 people had been killed on the 7th of July.
GR1 (Government): On the 21st of July, the day before this event, four bombs had been set in tube trains and buses.
GR1 (Government): And there was a hunt on for the four men who'd placed them, which was what led eventually to this tragic event.
GR1 (Government): So there was huge operational pressure, particularly on the senior police officers.
GR1 (Government): And the view was taken that, although they were recognized as having a duty of care to Mr. de Menezes and other Londoners,
GR1 (Government): their failings, given the context and the extreme nature of the pressures on them, would not be regarded as being sufficiently serious to meet the threshold of gross negligence manslaughter.
GR1 (Government): So effectively, none of those decisions were really being met by the answer, yes, there's some evidence, but it's not good enough to convict.
GR1 (Government): They were being met with problems that couldn't be solved because there was no evidence, for example, to fill the gap on causation.
GR1 (Government): So far as the shooting officers themselves are concerned, the assessment was as to whether a jury properly directed could be satisfied that they had not had the honest belief that he was a suicide bomber.
GR1 (Government): And in relation to that, there was a wealth of situational material which suggested they did so believe.
GR1 (Government): They would not have shot him in the way they did, with the frequency that they did, if they had not believed he was a suicide bomber.
GR1 (Government): They patted themselves down afterwards because they couldn't believe that nothing had blown up.
GR1 (Government): The way in which they reacted, both coming into the station and leaving it, also provided strong support for the idea that they thought the man was a suicide bomber.
GR1 (Government): And for that reason, they decided that they had to kill him as quickly as possible in order to prevent him detonating the device that they believed they had with him, which is effectively why the CPS prosecutor looked at it and said, I do not think there's any realistic prospect of a jury deciding they didn't honestly believe he was a suicide bomber.
GR1 (Government): And looking at it objectively, if that was their belief, then no lesser means of violence would be capable of extinguishing the threat to them, but more particularly to the other people in the railway carriage.
GR1 (Government): You couldn't shoot him in the arm or inflict some lesser injury because there remained the possibility, for technical reasons, for a bomb to be detonated.
GR1 (Government): So that was the first set of decisions.
GR1 (Government): The president will appreciate there was a second set of decisions after the inquest had heard the evidence.
GR1 (Government): And in relation to those second set of decisions, there was essentially the same reasoning, but bolstered by the fact that by then, the evidence had been heard.
GR1 (Government): And it was clear what, for example, the police officers would say under cross-examination, and bolstered also by the view of the very experienced inquest judge, that there was simply no evidence.
GR1 (Government): Again, no evidence, even taken at its highest, that any individual police officer had committed an act of murder or manslaughter.
GR1 (Government): The question of individual health and safety offenses runs into the same problem of causation.
GR1 (Government): What went wrong on the 22nd of July was a combination of failings from high to low, none of which were decisive in creating the possibility of harm, all of which together not only created the possibility of harm but led to the death.
GR1 (Government): And that is why, in relation to individuals, it was not possible to prosecute, whereas it was possible to prosecute the institution of the police.
GR1 (Government): So that then brings me just finally to deal with the question I was asked about DPP and Manning, and whether or not there is the possibility, as a result of that decision, of undue deference paid by the administrative court in a review of prosecutors.
GR1 (Government): Now, prosecutors don't just take decisions about evidence.
GR1 (Government): They take decisions about the public interest.
GR1 (Government): So there may be cases where there is evidence, but they decide the public interest doesn't warrant prosecutions.
GR1 (Government): And in those circumstances, there is a degree of deference because of that polycentric decision making.
GR1 (Government): But in relation to decisions on the evidential threshold, I can assure the court that in looking at the evidence and assessing whether the prosecutor's decision on its weight is reasonable, which is what the court does, and in looking at the law and deciding whether the prosecutor's approach to it is correct, the court will have, in the case of a death, a fully reasoned decision letter which explains the prosecutor's approach.
GR1 (Government): And so the court can not only make its own assessment of the evidence and the law and will do so, but it can also scrutinize, and it does with anxious care, the explanation given by the prosecutor for the decision that he's made.
GR1 (Government): And there is no deference in that process.
GR1 (Government): It will be scrutinized to determine whether or not it is either irrational or legally wrong or has left out of account some relevant factor that ought to have been taken into account.
GR1 (Government): In addition, of course, in this case, there was the review of the coroner's finding that there was no evidence to justify individual charges.
GR1 (Government): And in that case, again, there's no deference.
GR1 (Government): The court is simply doing its usual administrative review function without any sense of having to be predisposed to uphold a decision below.
GR1 (Government): And I should say, by way of comment, that although it is claimed that that decision, that there was no evidence, was not fully challenged because there was a concern there would have to be a second inquest, that is not a necessary outcome.
GR1 (Government): There would not have to have been a second inquest.
GR1 (Government): It would have been perfectly possible for the administrative court to say, no, the inquest was wrong to hold that there was no evidence of crime, but because it's not sought, we're not going to order a further inquest.
GR1 (Government): And the matter would then have gone to the CPS for their second decision.
GR1 (Government): So far as the remaining questions are concerned, that they deal both in the particular and in the abstract with questions that concern the beliefs of the officers.
GR1 (Government): The judge from Liechtenstein asked a question about the briefing that was given to the officers.
GR1 (Government): And we accept that it was, as was described in the criminal trial, an unbalanced briefing in that it referred to a critical shot and unusual tactics.
GR1 (Government): But there are a number of points that must be made.
GR1 (Government): Firstly, the briefing also contained, as is required by the law and the practice, a direction that force should only be used where absolutely necessary and only to the degree that was absolutely required.
GR1 (Government): Secondly, this was not a case in which a critical shot was ordered or unusual tactics were employed.
GR1 (Government): That was a reference to a pre-planned at that stage police operation to deal with a suicide bomber armed with a bomb in a public situation where there might be no other choice but to try and kill them in order to prevent them detonating the device.
GR1 (Government): But that program was not used.
GR1 (Government): The order was not given.
GR1 (Government): And the shooters did not rely on it.
GR1 (Government): The shooters did not say, we shot because we'd been ordered to do so or because we thought we'd been told to use unusual tactics.
GR1 (Government): They said, we shot because we thought it was the only way of stopping someone we now wrongly recognized but at the time believed was a suicide bomber with a suicide bomb.
GR1 (Government): So what I would say about the briefing is that it was fully reflected in the criminal trial.
GR1 (Government): That was one of the matters that were placed before the jury as demonstrating a lack of planning that led to the risk and to the death that eventuated.
GR1 (Government): We were then asked to address both the UN and International Codes of Conduct covering use of force by law enforcement officers as well as the Rome statute.
GR1 (Government): All of the obligations under the UN code and under the OSCE guidance are fully reflected in the training and briefing that is given to every firearms officer who carries a firearm in the course of his duty in the United Kingdom.
GR1 (Government): The national law, as was considered in Beniz, is applied to those officers.
GR1 (Government): Therefore, they're subject to the ordinary law of murder and manslaughter.
GR1 (Government): There is no separate offense in relation to a law enforcement officer using a weapon.
GR1 (Government): But that is not to say that a requirement for reasonable justification is absent.
GR1 (Government): It's present in two forms.
GR1 (Government): It's present essentially as a juristic element in the offense that the defense of self-defense only applies if reasonable force is used, such that it is absolutely necessary to meet what is believed to be the threat.
GR1 (Government): So there is no question of police officers being permitted, either by briefing or by the law, to shoot somebody dead if it would be sufficient for them to have a warning shot or have some less life-threatening attempt upon them.
GR1 (Government): Secondly, reasonableness plays an essential, evidential role in the question of belief as to threat.
GR1 (Government): Any person who asserts they believe they are subject to a threat will have the reasonableness of that belief examined and will have called against them, if necessary, in a criminal trial the facts that demonstrate that belief is either unjustified or, even worse, completely confounded by the facts as evidenced by the witnesses who speak of what happened.
GR1 (Government): And any person who asserts an honest belief in threat in circumstances where it is objectively unreasonable is likely to be prosecuted, because the very unreasonableness of the belief will provide a basis for a prosecutor saying, this is a case in which, objectively, the belief stated can't be supported, and therefore, there will have to be a case brought before the jury.
GR1 (Government): And as the court recognized in Bennett, that sort of assessment as to how reasonable the belief is will be affected by the fact you're dealing with trained firearms officers who should be in a position to make better judgments who have been trained in order to assess situations accurately for the purposes both of threat and the necessity for the use of lethal force.
GR1 (Government): And so it is a mistake to say that reasonableness plays no part in the defense of self-defense.
GR1 (Government): It plays an essential part in assessing the gravity of what is done.
GR1 (Government): It plays an equally essential, evidential part in assessing whether an honest belief is held.
GR1 (Government): And in our respectful submission, ever since McCann was decided in this court, and I know the president was a party to the decision, it has been recognized that the law of self-defense does not reflect precisely the terms of Article 2, but it is equally been recognized that the difference does not provide a substantial departure from the standards set by Article 2.
GR1 (Government): So our approach to this case is to say that a criminal offense was investigated and prosecuted.
GR1 (Government): It was prosecuted in the case of the police.
GR1 (Government): It was not prosecuted because there was, in the end, as held by the UK courts, no evidence, even taken at its highest, to justify individual prosecutions.
GR1 (Government): So this is becoming an abstract question as to what the CPS standards should be in assessing whether there should be a prosecution, rather than a concrete question founded on the facts of this case.
GR1 (Government): So far as the self-defense issue is concerned, there too, we would respectfully suggest that this is an abstract question.
GR1 (Government): The beliefs of the police officers, wrong though they were, were easily understandable and certainly rational, given the circumstances in which they found themselves.
GR1 (Government): So again, this is not a case which calls into question the idea that is propounded by the applicants that there is some significant failure to respect Article 2 in the fact that those police officers were not prosecuted.
GR1 (Government): They used lethal force, certainly.
GR1 (Government): But they used lethal force where, if they'd been right, that they were dealing with a suicide bomber, there was no other option.
GR1 (Government): There was no lesser force that could be used.
GR1 (Government): That is the problem that any state confronted with terrorism faces.
GR1 (Government): And that was the problem faced in this case.
Dean Spielmann (JudgeP): Thank you very much, Ms Montgomery. I give the floor to Mr. Southey.
AP1 (Applicant): President, members of the Court, can I deal firstly with the questions that were asked by members of the Court, and particularly the questions that were addressed to the applicant?
AP1 (Applicant): The first question that I wish to address is the question asked by the President, which is why, essentially, was it not possible to prosecute individuals? Now, perhaps not surprisingly,
AP1 (Applicant): our answer to that is, essentially, there were two problems. The first problem is the
AP1 (Applicant): high threshold applied by the prosecution. In that context, perhaps I can draw attention
AP1 (Applicant): to an example that may assist the Court. We, at paragraph 13 of our written submissions
AP1 (Applicant): before this hearing, drew attention to the prosecution decision in relation to D.A.C.
AP1 (Applicant): Dick. What, in essence, we would submit occurred in relation to that was that the prosecutor
AP1 (Applicant): was required to undertake a subjective assessment of how the jury would react if asked to assess the seriousness of her failings. The sole reason why she wasn't prosecuted as an individual
AP1 (Applicant): was essentially the prosecution concluded that the jury would conclude her failings were not sufficiently serious. Now, that involves the prosecution having to second guess the
AP1 (Applicant): reaction of the jury, and they have to second guess it in the context of a situation where they will only bring a prosecution in circumstances where they think conviction is more likely than not. And that, in our submission, demonstrates why the points we make about the prosecution
AP1 (Applicant): test are both material and a partial explanation, or an important part of the reasoning, why there was no prosecution of an individual. The second point we make about why there was
AP1 (Applicant): no prosecution of an individual is the point we made in opening, which is the difficulties proving someone was not acting in self-defence. I should add that when considering the points
AP1 (Applicant): I've just made, we certainly understand that the Court has a copy of the prosecution decision, and so it can consider it for itself that the extent to which the points I've just made were relevant. Now, one point when answering the question I've just answered that I perhaps
AP1 (Applicant): should address, which was raised by the UK Government, was that the UK Government argued in opening that the prosecution of individuals would not have addressed key issues that arise in this case. Now, whether or not that's correct, it misses the point. The whole reason
AP1 (Applicant): why there needs to be prosecution of individuals is that individuals need to be held to account.
AP1 (Applicant): Officers are given extreme powers in this context, and if that's acceptable, they must know they will be held responsible when they fail to comply with the law.
AP1 (Applicant): Returning to the question asked by Judge Villiger about the briefing, I should say immediately that has always been a very substantial concern for the applicant, and there are a number of points I'd make about that briefing. The first point I would make is that it, in
AP1 (Applicant): our submission, posed a particular problem in light of the law on self-defence. Domestic
AP1 (Applicant): law in our submission meant that officers were able to rely on the briefing as a basis for a belief that a threat was posed by Mr Domenes's without there needing to be any evidence in their minds necessarily of threat at the time of shooting. What I mean by that
AP1 (Applicant): is that they didn't, for example, need to assess whether or not the clothing that Mr Domenes wore was indicative of him posing a threat because he was a suicide bomber.
AP1 (Applicant): All they needed to do was reach a belief, essentially, that he posed a threat, and that was sufficient to justify their action. Linked to the point I've just made, but a second
AP1 (Applicant): point we'd make, is that the briefing in our submission implicitly implied there was no need for an assessment of the threat posed by Mr Domenes in light of what he was doing at the particular time and in light of what he was wearing at the particular time. Third
AP1 (Applicant): point we'd make is that there's never been any prosecution of the person responsible for that briefing, and in our submission that links back to the test applied by the CPS.
AP1 (Applicant): Fourthly, we've always had a concern that, as a matter of fact, the effect of that briefing was essentially to leave officers pumped up, as we would describe it, concerned about their personal threat and concerned about the threat to other people. The final point we'd make
AP1 (Applicant): is that, as far as we're aware, this was a unique briefing and it was delivered in highly emotional circumstances, and that did increase the risk to life.
AP1 (Applicant): The final question I think was addressed to the applicant was the question asked by Judge Lopez-Guerra, and that was about ex parte manning. In simple terms, we would argue ex
AP1 (Applicant): parte manning does provide a very substantial impediment to the successful review of decisions not to prosecute. That's set out in paragraph 19 of our submissions, and we would argue
AP1 (Applicant): that the likelihood of a successful judicial review of a decision not to prosecute is very low, and there are very few examples of it. The reason for that is essentially that the
AP1 (Applicant): test applied is one of irrationality. That is a test that's applied in the context of
AP1 (Applicant): a situation where the court will take the view that the CPS are particularly expert.
AP1 (Applicant): On that point, just dealing with a point the government made, it has never been our case that there must be a court review of a decision not to prosecute. However, what is our case
AP1 (Applicant): is that where the UK provides for such a review, it's not an effective review. It doesn't,
AP1 (Applicant): in particular, safeguard against the risk that cases will not be prosecuted, despite the fact there is sufficient evidence to justify a conviction, despite the fact that, in fact, the person may have been convicted had that evidence been put before a jury.
AP1 (Applicant): Turning to the government submissions, I'm going to avoid answering them all, obviously, firstly because I don't have the time, and secondly because that would repeat what I've already said. There are a few discrete points that I should address. The government emphasised
AP1 (Applicant): in its submissions the scope of the investigation and the independence of the CPS. Now, our
AP1 (Applicant): response to that is whether or not this investigation was sufficiently wide-ranging, the value of that investigation is undermined if the threshold applied by the prosecution prevents prosecutions. In simple terms, any investigation is useless if it doesn't result in those
AP1 (Applicant): who've committed a criminal offence being held to account. Now, the government says,
AP1 (Applicant): we essentially argue, that there is a requirement for oral evidence to be heard by a prosecutor.
AP1 (Applicant): That's never been our argument. Our point is that the fact that the prosecutor will
AP1 (Applicant): not hear oral evidence makes it very difficult to assess what the merits of a prosecution are, particularly in a case like this where oral evidence is fundamental. The key issue
AP1 (Applicant): in this case being whether or not the shooters had an honest belief. Now, the government
AP1 (Applicant): argues essentially that the inquest enabled the prosecution to be aware of the impact of oral evidence, but it's important to recognise the final decision in this case was taken by the Director of Public Prosecutions in person. He wasn't present throughout the
AP1 (Applicant): inquest, and yet he formed an opinion on credibility. The government raised the possibility of gross
AP1 (Applicant): negligence manslaughter. We would submit that's no answer to the complaints we make because
AP1 (Applicant): it was addressing a different issue. It wasn't, for example, considered in relation to the
AP1 (Applicant): shooters, and we would say, for good reason, because there is, in domestic law, a very high threshold applied in that context. It's not law that reflects, in our submission,
AP1 (Applicant): the concerns of this court, and if the officers were believed in claiming they had an honest belief, it would have been extremely difficult to demonstrate that that threshold that's applied in relation to gross negligence manslaughter was crossed. Finally, the government has suggested
AP1 (Applicant): that English law always applies a subjective test in relation to criminal liability. Firstly,