12.  The applicant was born in 1974 and lives in London. She is the cousin of Jean Charles de Menezes, who was shot dead by police officers on 22 July 2005.
13.  On 7 July 2005 four suicide bombers detonated explosions on the London transport network. Three of the suicide bombers were on underground trains and one was on a bus. Fifty-six people, including the four suicide bombers, were killed in the attack and many more were injured.
14.  The Metropolitan Police Service (“MPS”) initiated a major police investigation to establish the identities of persons involved in or otherwise connected with the explosions. Available intelligence indicated that terrorists were actively planning a further attack within a matter of days and the threat level posed to the United Kingdom from international terrorism was raised from Level 3 to Level 1.
15.  On 21 July 2005, precisely two weeks after the first bombings, four explosive devices were discovered in rucksacks left on three underground trains and on one bus. As it was feared that the failed bombers would regroup the following morning and attempt to detonate further explosions, the MPS immediately launched an operation to find them (Operation THESEUS 2). This operation was led, as Gold Commander, by Police Commander John McDowall.
16.  At 4.20 a.m. on 22 July 2005 Commander McDowall was informed that intelligence had identified Hussain Osman as a suspect in the failed bombings of 21 July. Both Mr Osman and another suspect were thought to be living in an apartment at 21 Scotia Road, London.
17.  At 4.38 a.m. on 22 July 2005 Commander McDowall decided to mount surveillance operations at both Scotia Road and another London address. The overall aim of the operation at 21 Scotia Road was to establish whether the suspects were present in the apartment and to arrest them safely if they came out. Commander McDowall’s strategy for this operation was not recorded; however, it would appear to have been to control the premises at Scotia Road through covert surveillance, to follow persons leaving the premises until it was felt safe to challenge them, and then to stop them. In order to implement this strategy his plan was that a surveillance team from SO12 (Special Branch) should be in attendance at Scotia Road. They were to be supported by a unit from SO19, a Specialist Crime & Operations branch of the MPS. The unit from SO19 consisted of highly trained Special Firearms Officers (“SFOs”) who were usually deployed on pre-planned operations. Although some surveillance officers were armed for their own protection and that of the public, their training did not enable them to be used as a resource to arrest armed suspects. SO19 would normally undertake this task, although armed officers from SO12 could be used for this purpose as a last resort.
18.  The Crown Prosecution Service (“CPS”) Review Note later found that if Commander McDowall’s strategy had been followed (notably, had the team from SO19 been deployed in time to support the surveillance teams at Scotia Road), events would not have unfolded as they did.
19.  Commander McDowall appointed Commander Cressida Dick as the Designated Senior Officer (“DSO”) in charge who was to be responsible for achieving the THESEUS 2 strategy safely. As such, she had responsibility for the operation at 21 Scotia Road on 22 July 2005. She was based in Control Room 1600, where she was supported by Trojan 80, an experienced SFO from SO19 who was acting as her tactical adviser.
20.  Detective Chief Inspector C (“DCI C”) was appointed as Silver Commander for the operation at Scotia Road. Although a Silver Commander would normally have ultimate responsibility for the management of an incident and deployment of firearms resources, on this occasion the DSO retained this responsibility and DCI C operated as the DSO’s ground commander. DCI C was supported by and accompanied on the ground by Trojan 84, who, like Trojan 80, was an experienced SFO from SO19 who was acting as a tactical adviser. Trojan 84 was in charge of the SFO team to be deployed and he was in direct contact with Trojan 80.
21.  Detective Superintendent Jon Boutcher (“DS Boutcher”), the Senior Investigating Officer for the investigation into the identity of the persons responsible for the bombings on 7 July 2005, was also appointed as a Silver Commander.
22.  At 5.00 a.m. on 22 July 2005 a surveillance team from SO12 was called out. No request was made at this stage for a unit from SO19.
23.  By 6.04 a.m. two surveillance teams from SO12 had been deployed to the Scotia Road address to control the premises and to follow anyone coming out of the apartments. 21 Scotia Road was accessed by the same doorway as 17 Scotia Road and the surveillance teams were stationed in an observation van which had a view of that doorway.
24.  The Anti-Terrorist Branch of the MPS (“SO13”) deployed four officers to assist with any arrest and to gain intelligence. DS Boutcher was the link between the Control Room and SO13.
25.  At 6.50 a.m. Commander McDowall held a briefing during which the firearms strategy was outlined. Trojan 80 was present at the briefing together with the Silver Commanders for the surveillance operations at Scotia Road and the second London address. The DSO arrived at 7.15 a.m.; however, Commander McDowall spoke to her after the briefing to ensure she had all the information and assistance she needed.
26.  As they had not been called out earlier (see paragraph 22 above), SFOs from SO19 were allocated to the operation when they reported for duty. At 7.45 a.m. Trojan 84 briefed the SFOs. The briefing was not recorded but he appears to have told the team that they “may be required to use unusual tactics because of the environment they were in and that they should think about this”. When asked for clarification Trojan 84 added that, in relation to a critical shot, the instruction would come directly from the DSO. However, if they were deployed to intercept a subject and there was an opportunity to challenge but the subject was non-compliant, a critical shot could be taken. The CPS later found that this briefing “stoked the [SFOs] fears that they would meet suicide bombers and that they may have to shoot such people”.
27.  Following the briefing the unit from SO19 travelled to a police station at Nightingale Lane, which was about two miles from Scotia Road. They stopped off for petrol on the way. Upon arrival they received a further briefing from DCI C, which commenced at 8.50 a.m. The briefing was not recorded but it appears that DCI C confirmed the terrorists had the capacity to attach a device to themselves that would be difficult to detect. He described the individuals involved in the bombings as being “deadly and determined” and “up for it”. The CPS later criticised this briefing as unbalanced as DCI C had failed to caution the SFOs that not everyone they would stop leaving Scotia Road would be a suicide bomber and that they should not overreact in the heat of the moment.
28.  The team from SO19 was not deployed on the ground until after 9.30 a.m.
29.  Jean Charles de Menezes was a Brazilian national who lived at 17 Scotia Road. At 9.33 a.m. he left his apartment building through the common doorway in order to go to work. An officer in the surveillance van saw Mr de Menezes, described him and suggested “it would be worth someone else having a look”. However, as the unit from SO19 had not yet reached Scotia Road it was not possible to stop Mr de Menezes at this stage (as per the strategy outlined at paragraph 17 above). Instead, he was followed by the surveillance officers.
30.  On leaving Scotia Road Mr de Menezes walked a short distance to a bus stop and got on a bus heading towards Brixton. The CCTV on the bus did not capture the entire journey due to vibrations but Mr de Menezes was recorded as being on the bus by 9.39 a.m. At this point the surveillance team described him as “a good possible likeness” to Hussain Osman. By 9.46 a.m. the description had changed to “not identical”.
31.  At 9.47 a.m. Mr de Menezes got off the bus. He was then seen using his mobile phone before running back to the bus and reboarding.
32.  There are conflicting accounts of whether a positive identification was made of Mr de Menezes as the suspect at this stage. It appears from the Stockwell One Report of the Independent Police Complaints Commission (the “IPCC” – see paragraphs 45-71 below) that those on the ground had not been able to identify Mr de Menezes as Hussein Osman. The fact that the Surveillance Running Log refers to him at each entry as being an “U/I [unidentified] male” lends some support to this position. Nevertheless, those in Control Room 1600 appear to have believed that a positive identification of Hussein Osman had been made.
33.  At around the time that Mr de Menezes reboarded the bus the unit from SO19 began to make its way towards Brixton. The SFO team leader later told the IPCC that he heard over the radio that “it was definitely our man and that he was nervous and twitchy”.
34.  At 9.59 a.m. the surveillance teams were asked to give a percentage indication of the likelihood that Mr de Menezes was the suspect and they replied that it was “impossible [to do so] but thought that it was [the] suspect”.
35.  Mr de Menezes got off the bus at Stockwell and walked towards Stockwell underground station. There were several surveillance officers in the vicinity and their leader offered to stop Mr de Menezes before he entered the station. The DSO initially ordered that they perform the stop, having been informed that the unit from SO19 was not yet in a position to intervene. However, almost immediately thereafter she was informed that the unit was on hand. As a consequence, she countermanded her original order and instructed the SFOs to stop Mr de Menezes. By this time Mr de Menezes was already in the underground station. Trojan 84 relayed the order to the SFOs, informing them that “they want us to stop the subject getting on the tube”. The SFOs were told that they were going to Code Red, which meant that they were to have ultimate control of the situation and that an armed interception was imminent.
36.  The CCTV at the station shows Mr de Menezes entering the station at 10.03 a.m. wearing a thin denim jacket, a T-shirt and denim jeans, walking calmly and not carrying anything. He went down an escalator and onto a platform. There is no CCTV recording of the lower end of the escalator or of the platform: the relevant tapes, when seized by the MPS, were blank. The IPCC Stockwell One Report and the CPS later found that this was because a cable had been damaged during recent refurbishment works.
37.  At 10.05 a.m. a number of SFOs entered Stockwell underground station and ran down the escalators. At 10.06 a.m. they followed Mr de Menezes onto the platform. Eyewitness accounts as to what exactly happened next are conflicting and some of the witnesses gave accounts which it is now known could not have been accurate. However, it would appear from the accounts quoted in the IPCC Stockwell One Report that: Mr de Menezes went into the third coach of a stationary train and sat down; one of the surveillance officers shouted to the SFOs that Mr de Menezes was there; Mr de Menezes stood up, arms down; he was pushed back onto his seat and pinned down by two police officers; according to one witness his hand may have moved towards the left hand side of his trouser waistband; and two SFOs (Charlie 2 and Charlie 12) shot Mr de Menezes several times and killed him.
38.  Within days of the shooting, after it had become apparent that Mr de Menezes had not been involved in the attempted terror attacks on 21 July, the Commissioner of the Police of the Metropolis, the Prime Minister and the Secretary of State for Foreign and Commonwealth Affairs expressed their profound regret at his death. A representative of the MPS travelled to meet his family in Brazil and apologised directly to them on behalf of the police. An ex gratia payment was agreed upon to ensure that the family’s financial needs were met. They were encouraged to take independent legal advice from a solicitor in the United Kingdom and they were advised that their legal costs in doing so would be met.
39.  The Police Reform Act 2002 and the Police (Complaints and Misconduct) Regulations 2004 required a police shooting to be referred to the IPCC. However, following the shooting of Mr de Menezes the Commissioner of the Police of the Metropolis wrote to the Home Office to inform it that he had decided not to refer the matter to the IPCC at that time.
40.  As it was not immediately clear that Mr de Menezes had not been connected to the attempted bombings, the Anti-Terrorist Branch initially retained primary control of the scene of the shooting. During this time the Department of Professional Standards (“DPS”), an independent section of the MPS which had been notified of the shooting at 10.38 a.m. on 22 July 2005, ensured the integrity of the scene, interviewed witnesses, and completed forensic retrieval.
41.  After the shooting Charlie 2 and Charlie 12 had been taken to a police station. At 2.30 p.m., having taken legal advice, they indicated that they would not be making statements at that time. Instead, they made their statements together at approximately 2.00 p.m. the next day, after they had been told that Mr de Menezes was not connected to the attempted bombings. Some of the details they initially provided have since been either proved false or called into doubt. For example, they initially indicated that Mr de Menezes had been wearing a bulky jacket (CCTV footage showed him wearing a light denim jacket) and that the officers from SO19 had shouted “armed police” when they boarded the train (the IPCC considered such an action to be “illogical” when confronting a possible suicide bomber).
42.  An officer from SO12 had seized the surveillance log at 12.35 p.m. on 22 July 2005. However, at 8.40 p.m. the same day it was handed back to the officers from the unit. Around this time an amendment appears to have been made to an entry; the words “a split second view of his face. I believe it was [the suspect]” appear to have been altered to read “I believe it was NOT [the suspect]”.
43.  At 9.45 p.m. on 22 July 2005 the Anti-Terrorist Branch formally handed over control of the scene to the DPS as they were satisfied that Mr de Menezes was not connected to the attempted bombings.
44.  On 23 July 2005 a post-mortem examination took place and recorded the cause of death as “multiple gunshot wounds to the head. The cause of death is severe disruption to the brain”.
45.  On 25 July 2005 the DPS formally referred the investigation to the IPCC, whose investigation began on 27 July 2005 when the DPS provided it with the relevant material in its possession. Because of the seriousness of – and the public interest in – the matter, the IPCC determined that it would use its own staff to carry out the investigation. It was overseen by the Chair of the IPCC personally and the investigating team possessed all the powers and privileges of a police constable carrying out an investigation.
46.  The purpose of the investigation was to advise the CPS of any criminal offence that might have been committed; to provide it with the evidence necessary to come to a decision about any prosecution; to enable the “responsible authorities” of the officers concerned (the MPS and Metropolitan Police Authority, or “MPA”) to consider what disciplinary or other action they might need to take; to inform the Secretary of State for the Home Department of the circumstances of Mr de Menezes’ death; and to assist the coroner in relation to any inquest.
47.  In particular, the investigation by the IPCC was to examine:
a)  the information that led to the surveillance of the apartments at Scotia Road;
b)  the command structure of the operation, including details of the numbers and types of specialist officers deployed and the tactics available to them;
c)  the qualification and training of those involved and their suitability to carry out their role;
d)  details of the briefing given to the officers involved and any description or photograph of any suspect made available;
e)  whether or not the operation was designated as a “KRATOS” operation (the national strategy for dealing with suspected suicide bombers which permitted the use of lethal force if absolutely necessary) and the policy, operational tactics and authority levels of “KRATOS”;
f)  the details of the mobile surveillance operation from Scotia Road to Stockwell underground station;
g)  the details of police action once Mr de Menezes had reached Stockwell underground station;
h)  whether or not the policy and operational authorities of “KRATOS” were followed and were effective; and
i)  whether “KRATOS” was compliant with Article 2 of the Convention.
48.  The IPCC was also to report on the actions and statements of the DPS from the time of the incident to the formal handover of the investigation to the IPCC to ensure that the IPCC investigation met its obligations under Article 2 of the Convention.
49.  During the course of the investigation nearly 890 witness statements were taken from police, forensic experts and civilian witnesses and more than 800 exhibits were collected. The family of Mr de Menezes, together with their legal representatives, were given regular detailed verbal briefings on the progress of the investigation and eventually on its conclusions.
50.  On 30 September 2005 the IPCC investigating team submitted a report to the IPCC indicating, inter alia, that certain officers might have committed criminal or disciplinary offences. The IPCC therefore wrote to the MPS and to the MPA about the officers concerned.
51.  On 19 January 2006 the IPCC Stockwell One Report was completed and submitted to the CPS. On 6 and 22 March 2006 the legal representatives of Mr de Menezes were briefed on the IPCC investigation and report. IPCC personnel also offered to travel to Brazil to brief any member of his family residing there. On 14 March 2006 the IPCC submitted its recommendations to the MPS, MPA, Her Majesty’s Inspector of Constabulary and to the Home Office.
(a)  Summary of the Stockwell One Report’s conclusions
52.  The report considered all the witness statements and outlined in detail the events of 22 July 2005 and the investigative steps which followed the shooting. In particular, it examined the actions and responsibility of the Commanders, their advisers and all the frontline SFOs and surveillance officers. While it accepted that the death of Mr de Menezes was not the result of any deliberate act designed to endanger the life of any innocent third party, it nevertheless concluded that:
“20.01 There can be no doubt that on the morning of 22 July 2005 a combination of circumstances between 0500 and 1006 led to the killing of an entirely innocent man.”
53.  With regard to this “combination of circumstances”, it identified a number of failings.
54.  First, it criticised the briefings given by DCI C and Trojan 84:
“20.8 There is no doubt that the briefings provided by [DCI C and Trojan 84] included a comprehensive update on the intelligence including the links between 7 July and 21 July and the possibility that the firearms officers may have to confront one of the terrorists who had survived the suicide bombings the previous day. What the briefing for [SO19], and indeed the other teams, did not include was any rider about the circumstances in which the Operation KRATOS policy could be used. That policy was only one option available to the Metropolitan Police for dealing with suspected terrorists and suicide bombers. The [SO19] officers were not told that it should only be used as a matter of last resort when they were sure of the identity of the person in relation to whom the policy was to be applied. That should have been included in the briefing.”
55.  Secondly, it criticised the failure to implement Commander McDowall’s strategy by deploying the unit from SO19 to Scotia Road earlier:
“20.15 The management of the operation between 07:15hrs and 09:30hrs should have involved giving practical effect to the strategy devised by Commander MCDOWALL so that appropriate resources were in place at SCOTIA ROAD from the earliest possible time. Commander DICK was in charge of the operation following her briefing from Commander MCDOWALL. The policy, which is described at paragraphs 6.3 and 6.4, was, in essence, one of containment, stop and arrest. What occurred between 07:15hrs and 10:06hrs was a failure of that policy. Between 07:15hrs and 09:33hrs there was no adequate effort to put in place police resources at SCOTIA ROAD that would have enabled the Metropolitan Police to give effect to the policy. During those hours there was a series of briefings. None of the eight people who left the flats before Mr DE MENEZES left were stopped in accordance with the strategy and when he left he was simply followed while ineffective attempts were made during the course of half an hour to determine whether he was [the suspect]. If appropriate resources had been in place there would have been the opportunity to stop Mr DE MENEZES during the course of his five minute walk from SCOTIA ROAD before catching the bus in TULSE HILL.
... ... ... 20.32 Detective Chief Inspector C, the Silver Commander, was effectively the ground commander with responsibility for SO12, SO13 and [SO19] officers. However owing to the fact that he was still with SO13 and [SO19] at NIGHTINGALE LANE when Mr DE MENEZES left SCOTIA ROAD, and stationary at the T.A. Centre when DE MENEZES was identified as the suspect at BRIXTON, DCI C was always playing ‘Catch up’ in respect of the operation.
... ... ... 20.49 ... evidence from the CCTV at STOCKWELL underground station reveals that the [SO19] officers did not enter the station until two minutes after MR DE MENEZES had passed though the ticket barriers. 20.50 While two minutes is a very short time period, the delay in [SO19] getting to the scene and the failure to get a positive identification had enabled a person, believed to be a possible suspect for attempting to detonate a bomb on the underground system the day before, to get on the same bus twice and enter an underground station.”
56.  Thirdly, the report was critical of the delay in handing the investigation to the IPCC:
“17.22 The pressures under which the Metropolitan Police were operating following the events of 7 July and 21 July are self-evident. However, the fact that the independent body established by an Act of Parliament to investigate complaints and serious incidents involving the police, and which has independently investigated every fatal police shooting since 1 April 2004, was now to be excluded from the scene, is a major concern for an independent investigation, and should never occur again. 17.23 The fact that there was such concern over the problems with the CCTV tapes at STOCKWELL and the fact that the hard drives on the train were missing highlights the problem. This issue could have been resolved a lot earlier had they been under the control of the IPCC.
... ... ... 17.25 The failure to allow the IPCC access has also been highlighted by the fact that the surveillance log 165330 has been altered.
... ... ... 17.33 Had the IPCC been involved at the commencement of the investigation, the surveillance log would not have been released for amendments to be made.”
57.  Nevertheless, the IPCC found that high vibrations had interfered with the recording of most of the bus journey, the hard drive on the train had not been replaced on the relevant day, and the recording equipment in the station had been broken during prior refurbishments. Consequently, it concluded that there was “no evidence of a cover-up to withhold this evidence from the investigation”.
58.  Likewise, two expert witnesses who examined the surveillance log could not agree either that it had been altered or, if it had been, who might have altered it.
(b)  Prosecutions
59.  The report also identified a number of individuals whom the CPS might consider prosecuting.
(i)  Charlie 2 and Charlie 12
60.  As to the shooting of Mr de Menezes after he had been tackled on the train, the IPCC noted:
“20.71 The actions of Charlie 2 and Charlie 12 should be considered in light of the day’s events and those of the previous two weeks. At the briefing, they were supplied with a full briefing on the capabilities of the terror suspects. During the operation they had heard the man being followed was being identified as one of the suspects from the previous day’s attempted bombings. On arrival at STOCKWELL, [SO19] went to State Red, authorising a firearms intervention, following an order from the DSO to stop the man from entering the station and tube train. 20.72 They had seen ‘Ivor’ [a surveillance officer from SO12] point at the suspect, who they saw get off his seat. ‘Ivor’ then grabbed the man and forced him back to the seats. Both officers state they believed they had to act immediately to prevent loss of life to the people on the train.
... ... ... 20.74 Charlies 2 and 12 clearly believed they were acting in self-defence, and had the right in law to use the force they did. The [CPS] may wish to consider whether the actions of Charlie 2 and Charlie 12 amount to murder in the context of their justification for the shooting of Mr DE MENEZES and having regard to the fact that there were explanations given for the shooting at that time which did not accord with the accounts given 36 hours later.
... ... ... 20.94 ... [The CPS] ... may also wish to consider whether they were grossly negligent to come to the conclusion that they were confronting a suicide bomber.”
(ii)  The DSO
61.  With regard to the role of the DSO, the IPCC stated:
“20.77 The order given by Commander DICK was to stop the suspect getting onto the underground station and subsequently the underground train. When interviewed she was asked to explain the word ‘Stop’ and her response was that ‘Stop’ is a common word in policing terms and it was meant as ‘stop and detain’. This opinion is supported by DCI C and Trojan 80 and 84. 20.78 However, the way the order was received by [SO19] must be considered. Following a full briefing, many of the [SO19] officers have described that they believed that they would have to confront a suicide bomber. The [SO19] officers have stated that they believed the man being followed on the bus had been identified as one of the suspects for the failed bombings on 21 July 2005. They had been in a situation of trying to ‘Catch up’ with the surveillance team since their briefing had finished. And as they approached STOCKWELL underground station they hear that the suspect had entered the underground station and they received an order to stop him getting on the underground train. I do not believe that the use of the word ‘Stop’ can be related to normal policing duties. With the mind-set of the [SO19] officers believing that a suicide bomber had entered the underground station, to receive such an order to stop him from DSO cannot be related to normal duties. They had not had the benefit of a rider to their briefing of the sort to which I refer at paragraph 20.8. If they had received such a briefing they might have been more cautious in the way they approached and dealt with Mr DE MENEZES.
... ... ... 20.82 I [Senior Investigator J.D. Cummins] comment at paragraph 20.47 on the consequences of the surveillance team having failed to adequately identify the person they were following. However, that team had spent thirty minutes following and staying with Mr DE MENEZES and attempting to identify him. That provided Commander DICK with a thirty minute opportunity to act in accordance with the operation strategy. There was no attempt to do so. 20.83 The SO12 officers who were following Mr DE MENEZES had been authorised to carry firearms for their personal protection and the protection of the public. In the context of the events of 7 July and 21 July when, respectively, there had been a successful detonation and an attempted detonation of bombs on buses it was a failure of the management of the operation to permit Mr DE MENEZES to get on the bus at TULSE HILL. If he had been a suicide bomber that event could have been catastrophic. Therefore the failure to use SO12 to stop him getting back on the bus in BRIXTON is an even more inexplicable failure to apply the strategy.
... ... ... 20.87 [The DSO] has endorsed that she was the person in command.
The [CPS] may wish to consider whether the manner in which this operation was commanded, the failures to have resources properly deployed and the absence of any other tactical options could be considered to be grossly negligent.”
(iii)  “James”
62.  With regard to the “identification” of Mr de Menezes as the suspect, the IPCC noted:
“20.53 ... James [the head of the surveillance teams] did not communicate that some of his team thought that the subject was not [the suspect]. This information should have been fully communicated to [the DSO] as it may have influenced her decision-making. The [CPS] may wish to consider whether this negligence by ‘James’ ... satisfies the test for gross negligence.”
(iv)  The other officers on the train
63.  As to any potential offence on the part of the eight officers on board the train:
“20.91 Given that they believed they were confronting a suicide bomber it is perhaps illogical that they would have challenged him prior to trying to detain him. The [CPS] may wish to consider whether any of the eight officers on the train who state they shouted or heard the words ‘armed police’ have conspired to ... pervert the course of justice. ...”
(v)  Trojan 80, Trojan 84 and DCI C
64.  As the IPCC did not consider that Trojan 80, Trojan 84 and DCI C had been in a position to influence the outcome of events, it was of the opinion that they could not be held responsible.
(vi)  The surveillance log
65.  In respect of the possible alteration of the surveillance log (see paragraphs 42 and 56 above), the IPCC did not find sufficient evidence against any individual to suggest that criminal proceedings might be appropriate.
(c)  Operational recommendations
66.  The IPCC noted that in the course of its investigation grave concerns had been raised about the effectiveness of the police response on 22 July 2005. These concerns were not only that an entirely innocent member of the public had been killed in error but also that the police response might not have been adequate to stop a terrorist who was intent on causing harm. It therefore made a number of detailed operational recommendations.
67.  The IPCC underlined two operational concerns about the use of firearms: the substantial delay between the time the unit from SO19 was requested and when it was deployed, and the lack of clarity about the command to “stop” the suspect given the likely mind-set of the SFOs. It also made detailed recommendations on command and control issues in firearms operations, including the need to clarify the roles and responsibilities within the chain of command; to establish a clear and common understanding of the circumstances surrounding future operations; and, given the failure to implement Commander McDowall’s strategy to ensure the deployment of the unit from SO19 in time, to put in place better communications channels.
68.  In respect of the surveillance operations, the IPCC expressed concern that the surveillance team, the SFOs, and those in command were not used to working together and were not sufficiently familiar with each other’s working practices; that two surveillance officers believed the person being followed was not the suspect and that this was not communicated to the DSO; and that the surveillance log had been altered.
69.  In relation to the post-incident management, the IPCC repeated its concern about the delay in handing the scene and the investigation to it, and about the fact that Charlie 2 and Charlie 12 had been allowed to return to their own base, refresh themselves, confer and write up their notes together.
70.  As regards the communications infrastructure, the IPCC was concerned that key briefings and strategic and tactical decisions were not recorded and furthermore that the command and control of the incident was inevitably lost when the unit from SO19 entered the underground. Concerns were also expressed that the existing Firearms Manual and the “KRATOS” policy were patently insufficient to deal with the current terrorist threat.
(d)  Publication
71.  The IPCC Stockwell One Report was not made public until 8 November 2007 as publication was delayed pending the criminal trial of the Office of the Commissioner of the Police of the Metropolis (“OCPM”) (see paragraphs 100-101 below).
72.  On 14 October 2005 the MPA referred a complaint to the IPCC about the MPS’s handling of public statements following the shooting of Mr de Menezes. The IPCC carried out a second investigation and the IPCC Stockwell Two Report was published on 2 August 2007. The contents of that report are not directly relevant to the complaint currently before the Court.
73.  The IPCC had the power to recommend or direct the MPS to bring disciplinary proceedings against individuals. During the IPCC investigation fifteen officers were served with notices under Regulation 9 of the Police (Conduct) Regulations 2004, informing them that they were being investigated and warning them that the investigation might result in disciplinary proceedings being brought against them.
74.  However, on 11 May 2007 the IPCC decided that no disciplinary action should be pursued against any of the eleven frontline and surveillance officers involved in the operation since there was no realistic prospect of any disciplinary charges being upheld. One surveillance officer received “words of advice” in connection with the alteration of the surveillance log.
75.  A decision concerning disciplinary charges against the two Commanders and their tactical advisers was postponed until after the prosecution of the OCPM (see paragraphs 100-101 below).
76.  On receiving the IPCC Stockwell One Report, the CPS considered whether to bring prosecutions against any individual officers for murder, involuntary manslaughter by way of gross negligence (“gross negligence manslaughter”), misconduct in public office, forgery or attempting to pervert the course of justice. It also considered whether to prosecute the OCPM or any individual for offences under the Health and Safety at Work etc. Act 1974 (“the 1974 Act”). In deciding whether or not to prosecute, it first had to apply a threshold evidential test, namely, whether or not there was a realistic prospect of conviction, before asking whether or not prosecution would be in the public interest (see paragraph 163 below).
(a)  The first decision letter
77.  By letter dated 17 July 2006 the CPS notified the deceased’s family that the Director of Public Prosecutions (“DPP”) had decided to prosecute the OCPM, not in his individual capacity but as an employer of police officers, for failing to provide for the health, safety and welfare of Mr de Menezes contrary to sections 3 and 33 of the 1974 Act (see paragraphs 157-158 below). No individual was to be prosecuted in relation to the death as there was “insufficient evidence to provide a realistic prospect of conviction against any individual police officer”; that is, it was more likely than not that a jury would not convict.
78.  The decision letter, in so far as relevant, provided as follows:
“In the circumstances of this case, if the prosecution could prove that [the SFOs] were not acting in self defence (either of themselves or others) then they would be charged with murder. The order was given that Jean Charles was to be stopped from getting on the train. Although officers in the control room intended that Jean Charles should be arrested outside the station, the [SFO team] were not in place to make such an arrest, nor was this intention made explicit to the [SFOs] who were being sent down to the train. All the available evidence suggests that they believed that Jean Charles had been identified as a suicide bomber, that they had been directed to stop him from blowing up the train and that they had to shoot him to prevent that ....
The burden would be on the prosecution to prove beyond reasonable doubt that these two officers did not honestly and genuinely believe that they were facing a lethal threat and so I looked to see if there was sufficient evidence to disprove that they had such an honest and genuine belief. Both officers stated that Jean Charles was wearing a ‘bulky’ jacket when they saw him but in fact Jean Charles was wearing a simple denim jacket. I therefore took this into account as it could indicate that the officers had lied. However even if I could prove that the officers had lied, rather than simply being mistaken, this alone would not be enough to commence a prosecution for murder as there could be other reasons for an officer to lie. I also considered their explanations of Jean Charles’s movements when they approached him, to see if there was evidence that they had fabricated those accounts to justify their actions. Both refer to Jean Charles getting up and advancing towards them with his hands down by his side before he was tackled by a surveillance officer and forced back into the seat. The [SFOs] then shot Jean Charles. I had to consider whether the prosecution could argue that the restraint meant that no bomb could be detonated and that the firearms officers’ actions were unlawful. However I must bear in mind that this happened in a matter of seconds and there is some independent evidence that supports the officers’ accounts that they feared Jean Charles might detonate a bomb. A witness sitting opposite Jean Charles said ‘I got the impression that he was reaching to the left hand side of his trouser waistband.’ ...
As I cannot prove the officers did not act in genuine self-defence, I cannot charge them with murder or any other offence of assault, including manslaughter.
There is some disagreement between officers and the members of the public as to whether any warning was given that armed police were approaching the train. In a situation such as this, where a warning to a suspected bomber could be fatal for officers and the public, no warning should be given. However some police officers say that they did hear a call of ‘armed police’ before the shooting and although passengers did hear officers shouting as they ran down the stairs, none of them heard the words ‘armed police.’ Both of the [SFOs] say that they shouted ‘armed police’ immediately before they fired but whether they did, and if so, whether it was intended as a warning to Jean Charles or to others in the carriage is unclear. There is no doubt that some police officers did shout something before any shots were fired .... Unless I could prove that officers had lied ... to mislead any investigation, I could not prosecute them for attempting to pervert the course of justice.
Next I carefully examined the roles of those police officers concerned in planning the surveillance and stop and those who carried it out. ... there were a number of people involved and there is no doubt that messages were misinterpreted with tragic consequences. I have considered whether any errors or other conduct by individuals could be categorised as criminal. In this I have applied the law on gross negligence manslaughter, misconduct in public office and the [1974] Act. Even where I found that individuals had made mistakes, I found insufficient evidence that those mistakes were so bad that they could be described as criminal. As criminal proceedings are to be brought against the [OCPM], I cannot provide you with a detailed account of the conduct of those individuals, as that conduct will form part of the prosecution case.”
(b)  The Review Notes
79.  More detailed reasons were provided in a fifty-page Review Note dated 9 March 2006 as well as in a Final Review Note of 9 July 2006.
(i)  The IPCC investigation
80.  In respect of the investigation by the IPCC, the Review Note stated that:
“I am satisfied that the investigation has complied with Article 2 and the procedural requirements that flow from it. The IPCC is clearly independent of the Metropolitan Police and the investigation has not been limited to the actual shooting on the train but has examined the whole of the operation. I have had a number of discussions with senior investigators at the IPCC who have assisted me with any queries I have raised. I am therefore satisfied that I have sufficient material before me to reach a decision on the criminal liability of those officers involved in the operation that led to the death of Mr de Menezes and the Commissioner as corporation sole.”
81.  However, the Review Note drew attention to one particular evidential difficulty:
“Perhaps the most significant problem in understanding what occurred is that there is an almost complete absence of any worthwhile contemporaneous records and the accounts from the participants vary significantly on all the crucial aspects. It is at times impossible to say with any certainty what was said, by whom, to whom and when. There is also the issue that some accounts were made in the knowledge that something terrible had gone wrong.”
82.  With regard to the witness statements taken from the passengers on the train, the Review Note indicated that there were inevitable inconsistencies in their recollections of events with the consequence that “the accounts do not match either among themselves or with those of the police”. For example, some of the witnesses confused Mr de Menezes with “Ivor”, one of the surveillance officers.
(ii)  Charlie 2 and Charlie 12
83.  With regard to Charlie 2 and Charlie 12, the Review Note reiterated that there was insufficient evidence to persuade a jury that they did not genuinely believe they were acting in self-defence. It noted that, if they did hold a genuine belief, then the actions they took in shooting dead a “suicide bomber” would be reasonable and would not be unlawful.
(iii)  The DSO
84.  As for Commander Cressida Dick, the Review Note stated that there was no evidence against her to sustain a charge of murder as she did not order any officer to open fire. The prosecutor was, however, satisfied that there was evidence her actions and direction and failure to plan fell below the standard of a reasonable officer in her position and, as such, a breach of the duty of care and causation could be shown. Nevertheless, he considered that there was “nowhere near enough” evidence to persuade a jury that her conduct was so bad as to justify a charge of gross negligence manslaughter. He also considered the possibility of prosecuting Commander Dick for offences under sections 7 and 33 of the 1974 Act, but, having applied the relevant criteria, found that the prosecution of her or of any of the other individual officers under these provisions would not be in accordance with Health and Safety Executive Policy.
(iv)  Trojan 84
85.  In the Review Note the prosecutor identified Trojan 84 as the officer most closely connected with the death of Mr de Menezes. In particular, he had failed to dispatch firearms cover to Scotia Road, he gave the briefing that stoked the SFOs fears that they would meet suicide bombers and that they might have to shoot them, and, finally, he should have known that once the SFOs were away from the armed response vehicle and were to engage with a potential suicide bomber the overwhelming likelihood was that they would shoot. However, he could not be prosecuted for murder as he did not direct the officers to fire and his actions were not “bad” enough to satisfy the test for gross negligence manslaughter.
(v)  Trojan 80 and DCI C
86.  Likewise, the prosecutor considered that there was insufficient evidence to prosecute Trojan 80, DCI C or the surveillance teams for gross negligence manslaughter.
(vi)  Alteration of the surveillance log
87.  The Review Note considered the alleged alteration of the log (see paragraph 56 above), but found that it had been examined by two experts who did not agree to the required standard either that there had been alterations or, if there had been, who might have made them. Therefore, as it could not be proved that the relevant entry was a forgery, let alone who might have forged it, there was no basis for a prosecution for conspiracy to pervert the course of justice.
(vii)  Missing recordings
88.  It also indicated that there was no evidence the police or anyone else had tampered with the recording equipment on the bus, at the station or on the train. Although there were gaps in the recordings at all three locations, the IPCC investigation had revealed that high vibrations had interfered with the recording of most of the bus journey, the hard drive on the train had not been replaced on the relevant day, and the recording equipment in the station had been broken during prior refurbishments.
(viii)  The decision to prosecute the OCPM
89.  The Review Note explained in greater detail the decision to prosecute the OCPM. The prosecutor indicated that:
“In my view, this operation was badly handled from the moment it passed from Commander [McDowall]. It resulted in an innocent man being shot dead in the most horrific manner. The Metropolitan Police were under tremendous pressure and were doing their best to protect the public from suicide bombers. These are factors that I take into account but these do not detract from the failure to carry out [Commander McDowall’s] strategy which would have best protected Mr de Menezes.”
90.  He continued:
“In my view, the lack of planning led to the death of de Menezes and, as such, constituted an offence under section 3 of the [1974 Act]. I believe that if such a charge is preferred, we can prove the case on the evidence already available but a decision not to prosecute individuals will enable the IPCC to seek further evidence to strengthen the case, from those individuals who are at present declining to.”
91.  The only defence open would be one of “reasonable practicability” and it was
“difficult to see how the police could argue the lack of reasonable practicability in ensuring the safety of [Mr de Menezes]. If this came to a contested trial, the police would probably have to call a number of officers ... who were interviewed as suspects. Their failures in the planning would then be highlighted”.
92.  On 16 October 2006 the applicant sought leave to apply for judicial review of the decision not to prosecute any individual police officer for criminal offences, which she argued was incompatible with Article 2 of the Convention.
93.  In particular, the applicant argued that the threshold evidential test in the Crown Prosecutors’ Code (“the Code”), which prevented a prosecution unless a jury properly directed was likely to convict (see paragraph 163 below), was not compatible with Article 2. She also submitted that Article 2 required the courts to undertake a more intensive review of a prosecutor’s decision than that provided for in R v. Director of Public Prosecutions, ex parte Manning [2001] 1 QB 330, in which the Divisional Court stated that it would accord great weight to the judgment of experienced prosecutors and, as such, a prosecutorial decision would be lawful if it was taken in accordance with the Code and was a decision reasonably open to the prosecutor on the material before him (see paragraph 165 below).
94.  On 14 December 2006 a Divisional Court of the High Court granted permission to apply for judicial review but dismissed the substantive application.
95.  In relation to the compatibility of the Code with Article 2, the court found that this Court’s jurisprudence did not determine any particular evidential test to be applied when deciding whether or not there should be a prosecution. The test set out in the Code was therefore compatible with the obligation under Article 2 to put in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. Bringing prosecutions which were likely to fail, even if they could survive a dismissal application and a submission of no case to answer, would have profound consequences for all parties concerned. Furthermore, if the threshold was lowered in cases where lethal force was employed by State agents, it was likely that a significant proportion of prosecutions would fail because the evidence was lacking. If this were to happen, public confidence in both law enforcement agencies and in the CPS would be undermined.
96.  The court also held that Article 2 did not require a change to the established position regarding judicial review of a decision not to prosecute. The “careful scrutiny” review required in Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004‑XII was compatible both with the test outlined in the Manning case (see paragraph 165 below) and with the domestic courts’ general approach to cases involving fundamental human rights.
97.  Thirdly, applying the Manning test, the court found that the decision of the CPS was in accordance with the Code and was one which was reasonably open to it. The decision was taken by a very senior and highly experienced prosecutor and it was reviewed by the head of the CPS and by independent counsel. It was lengthy, careful, thorough, clear and detailed and the CPS had applied the correct test to each individual considered; namely, “whether there was sufficient evidence to provide a realistic prospect of conviction, or, in other words, whether a jury was more likely to convict than not to convict”.
98.  Although it was not necessary for the court to go so far, it also indicated that it saw “no reason to disagree with the decision”. Consequently, it concluded that the DPP’s decision was lawful and dismissed the applicant’s challenge to it. Leave to appeal to the House of Lords was refused by the court and, on 26 July 2007, by the House of Lords itself.
99.  On 22 January 2007 the court also rejected an application by the OCPM to have the charges under the 1974 Act dismissed.
100.  On 1 October 2007 the criminal trial of the OCPM commenced. A total of forty-seven witnesses were called to give evidence during the course of the trial, including Commander McDowall and Commander Dick. The prosecution argued that the OCPM was guilty of the following:
a)  Commander McDowall’s strategy had not been communicated adequately to the officers who took over the running of the operations on 22 July 2005, the surveillance officers or the SFOs;
b)  Commander McDowall’s strategy for controlling the premises was not adequately planned for or carried out;
c)  the Control Room officers, the SFOs and the surveillance officers had a confused and inconsistent understanding of the strategy for Scotia Road;
d)  officers had not been deployed to stop and question persons emerging from the Scotia Road premises, including Mr de Menezes;
e)  the SFOs were not in attendance at Scotia Road when Mr de Menezes emerged from the common doorway;
f)  there was no contingency plan for dealing with persons who emerged from the apartment building before the firearms officers arrived;
g)  persons emerging from Scotia Road had not been stopped and questioned;
h)  a safe and appropriate area where those leaving Scotia Road could be stopped and questioned had not been identified;
i)  the briefings given to the SFOs were inaccurate, unbalanced, and provided the SFOs with inadequate and inaccurate information about the operation, including the operation at Scotia Road;
j)  the information concerning the identification of Mr de Menezes, his clothing, demeanour and likely level of threat, was not properly or accurately assessed or disseminated to officers and, in particular, to the SFOs;
k)  doubts about the correctness of the identification of Mr de Menezes as the suspect were not communicated to the control room;
l)  the control room officers failed to satisfy themselves that a positive identification of Mr de Menezes as the suspect had been made by the surveillance officers;
m)  the SFOs had not been deployed at relevant locations in time to prevent Mr de Menezes from getting on the bus and entering Stockwell underground station;
n)  the SFOs failed to satisfy themselves that a positive identification of Mr de Menezes as the suspect had been made by the surveillance officers;
o)  effective steps were not taken to stop underground trains or buses so as to minimise the risk to the travelling public;
p)  Mr de Menezes was permitted to get on a bus twice and to enter Stockwell underground station despite being suspected of being a suicide bomber and despite having emerged from an address linked to a suspected suicide bomber;
q)  a clear and timely order that Mr de Menezes be stopped or arrested before he entered Stockwell underground station had not been given;
r)  accurate information had not been given to the DSO about the location of the SFOs when she was deciding whether the SFOs or officers from the Anti-Terrorist Branch should stop Mr de Menezes; and
s)  the risk inherent in effecting the arrest of Mr de Menezes by armed officers had not been minimised, whether in relation to the location, timing or manner of his arrest.
101.  On 1 November 2007 the jury returned a verdict, finding the OCPM guilty of breaching sections 3 and 33 of the 1974 Act (see paragraphs 157 and 158 below). The jury also attached a rider to its verdict to the effect that Commander Dick bore no “personal culpability” for the impugned events. This rider was endorsed by the trial judge. The OCPM was fined GBP 175,000 and ordered to pay costs of GBP 385,000.
102.  After the trial, the IPCC decided not to issue a recommendation for the senior officers to face disciplinary proceedings. In particular, it had regard to the jury’s rider that no blame should attach to Commander Dick, who was the most senior officer.
103.  The inquest, which had been adjourned pending the trial of the OCPM, commenced on 22 October 2008. In the course of the inquest seventy-one witnesses were called, including Commander McDowall, Commander Dick, Trojan 80, Trojan 84, Charlie 2 and Charlie 12. The family of Mr de Menezes were represented at the hearing at the State’s expense and were able to cross-examine witnesses and make submissions.
104.  On 24 November 2008 the coroner delivered a written Ruling on what, if any, verdicts should be left to the jury. The options available to him were lawful killing, unlawful killing and an open verdict. However, the coroner was not permitted to leave a verdict to a jury if it fell foul of the test used to determine a submission of “no case to answer”; namely, if there was no evidence to support it or the evidence was so weak, vague or inconsistent with other evidence that, taken at its highest, a jury properly directed could not properly return that verdict (see paragraph 166 below).
105.  The coroner therefore considered the verdicts to be left to the jury separately as regards certain police officers.
106.  The coroner found that:
“16. ... There is no doubt that the officers intended to kill Mr de Menezes when they fired. Therefore, if their contention that [they] were acting lawfully in defence of themselves or others could be disproved, they would have committed ... the offence of murder. 17. There is agreement between all Interested Persons as to what test I should apply in determining whether the officers acted lawfully in defence of themselves and others:
(i) Did the officer honestly and genuinely believe that it was necessary for him to use force in defence of himself and/or others? This is a question of subjective belief. Even if the belief was mistaken, and even if the mistake was unreasonable, the defence can still run. The reasonableness of the belief is only relevant in helping the jury to decide whether the belief was honestly held.
(ii) If the officer did hold the belief, did he use no more force than was reasonably necessary in the circumstances as he believed existed at the time? This is an objective test, but it is applied realistically. Where a person faces a threat, the Courts will not judge with too precise a measure the degree of force he uses... It is also significant for present purposes that a person under threat is not required to wait passively for the blow to fall. A pre-emptive strike can be justified by the circumstances.
... ... ... 18. The legal test is no different when the person facing the threat is a police officer or a soldier. However, as Waller LJ said in Bennett at paragraph 15, the tribunal is entitled to take account of the person’s training when applying the two limbs of the test to the facts of the given case. The same must apply to specific briefings as well as general training.”
107.  It was accepted by the parties that the SFOs honestly believed that the man in front of them in the carriage was Hussain Osman, the person who was strongly suspected of having attempted to explode a bomb on the underground the day before. However, the coroner rejected the submission on behalf of the de Menezes’ family that the officers did not honestly believe that Mr de Menezes represented an imminent threat. He therefore found that the jury could not properly conclude to the criminal standard of proof that the two officers did not honestly believe that Mr de Menezes represented a mortal threat to those around them. In reaching that conclusion, he stated that:
“27. If the officers honestly believed that Mr de Menezes represented a mortal threat to themselves and those around them, it could not be said that they used more force than was reasonably necessary... An argument was made... to the effect that [one of the officers] used excessive force because he fired too many times ... In my judgment, it has no merit. The events took place in a few seconds, and one cannot fairly say that some of the shots to the head constituted reasonable force and some did not. In any event, the officers had been trained to fire until the threat was neutralised.”
108.  The coroner therefore declined to leave to the jury the option of returning a verdict of unlawful killing in relation to the actions of Charlie 2 and Charlie 12.
109.  The coroner then considered whether the senior officers could safely be found to have committed manslaughter by reason of having caused death by gross negligence. It was accepted by all parties that this offence had to be proved against a particular officer; the failings of a number of persons could not be aggregated. Four elements had to be proved in order to establish that the offence had been committed: the defendant must have owed a duty of care to the victim, the defendant must have breached that duty, the breach must have caused the death (namely, made a more than minimal causal contribution to the death), and the breach must be characterised as “gross”.
110.  In relation to the duty of care, the coroner concluded that
“35. ... a police officer can owe a duty of care in directing other police officers to perform an armed interception. The content of the duty here would be to take reasonable care to ensure that such an interception took place in such a location and at such a time as to minimise, so far as reasonably practicable, the risk of unnecessary injury to the subject of the intervention, to the officers concerned and to others in the immediate vicinity. In this case the duty would not arise before the point at which firearms officers were ordered to move through with a view to performing an interception.”
(a)  Commander McDowall
111.  In relation to Commander McDowall, there were three alleged breaches of a duty of care: that he should have set a strategic plan to ensure that suspects were stopped between leaving the premises and reaching the public transport system; that he did not ensure that the unit from SO19 was deployed sooner; and that he had failed to keep himself informed and to ensure that his orders were being followed. In respect of each of these allegations the coroner did not accept that Commander McDowall had owed any duty of care to Mr de Menezes. However, even if a breach of duty could be established, the coroner did not accept that it had led to Mr de Menezes’ death.
(b)  the DSO
112.  There were three allegations against Commander Dick:
“54. ... First, ... that [she] failed to ensure that the block on Scotia Road was kept under careful surveillance control and that tactics were employed to ensure that all suspects could be identified and stopped before reaching a bus stop. As it happens, the nearest bus stop was on Upper Tulse Hill, only a few minutes’ walk from the block. The first obstacle [to this] argument is the difficulty of constructing a positive duty of care at that stage to stop Mr de Menezes close to his home. In my judgment, no such duty could exist. Even if it could, I consider that it would not have been practicable to implement this as a fixed and inflexible tactical plan... In any event, the surveillance control was good: Mr de Menezes was kept continually under surveillance but the covert status of the operation near Scotia Road was maintained. The failure to stop him at an earlier stage was based on an inability of officers to say whether he was identifiable with the suspect. Therefore, his death was not caused by any failure of surveillance control at Scotia Road. 55. Secondly, it is alleged that [the DSO] failed to keep herself informed of where surveillance and firearms officers were as Mr de Menezes was travelling from Tulse Hill towards Stockwell. Again, I do not think that a police officer owes a duty to a person under surveillance to ensure that he is informed of the movements of other officers, at least before any intervention is immediately in prospect. If there were such a duty, it would only be to keep oneself reasonably well-informed, since it would not be practicable to keep note of the precise position of every officer and car. The thrust of the evidence is that [the DSO] did keep herself reasonably well-informed. She was aware, through the surveillance monitor in the control room, that surveillance officers were following Mr de Menezes and of what they were saying. In any event, as [counsel for the family of Mr de Menezes] accepts, nothing could have been done to stop Mr de Menezes between his getting on the bus at Tulse Hill and his alighting at Stockwell. [The DSO] had [the SFOs] at the proper holding point at the time she wanted to deploy them. In the minutes before she ordered the intervention, she was relying upon information from [her tactical adviser] as to the position and readiness of the [SFOs]. In my judgment, she was entitled to rely upon that information. In all those circumstances, any failure on her part to keep herself informed was not causative of the fatal events in the carriage. 56. Thirdly, it is submitted ... that [the DSO] failed to exercise proper judgment in her decisions in the last critical minutes, after Mr de Menezes left the bus at Stockwell. In my judgment, she probably did owe a duty of care to him at this stage in making decisions and giving directions for an armed stop. However, she cannot fairly be said to have breached that duty. When she became aware that the subject of surveillance had left the bus, she ordered the [SFOs] to perform an armed stop. Upon hearing that they were not in a position to make the stop, she instructed the surveillance officers to do so. That order cannot be characterised as negligent. If there were any slight delay in giving the order, that can probably be explained by the need to take thought before ordering a suspected suicide bomber to be stopped by officers who were not trained for such situations. Once she was told that the [SFOs] were in position, she countermanded the earlier order. It might be possible to say that she made the wrong decision at that point, given where Mr de Menezes was known to be, but these were fast-moving events and her decision cannot be described as negligent. [It was submitted] that using [SFOs] gave rise to a particular risk that lethal force would be used. However, there were obvious advantages to using officers who had the training and experience to perform armed interventions in a public place.”
(c)  Trojan 80 (the DSO’s firearms tactical adviser)
113.  As to this officer, the coroner stated as follows:
“58. The first charge against [Trojan 80] is that, upon arriving at New Scotland Yard at around 6.00 a.m., he failed to take steps to expedite the despatch of [the unit from SO19] to the Scotia Road area. For the reasons already given, I do not consider that he would have owed a duty of care to Mr de Menezes in this regard. In any event, when he started work, all the critical decisions had been taken in relation to the [SFOs] deployments. It would probably not have been safe or sensible to try to expedite the deployments at that stage. As explained in paragraph 52 above, I do not think it can be established to the necessary standard of proof that any delay in deploying firearms teams was causally relevant to the death of Mr de Menezes. 59. The second allegation is that he failed to devise a tactical plan to ensure that any suspect coming out of the block was stopped before reaching a bus stop. This is, in essence, the same as one of the allegations made against [the DSO]. For the reasons I have given in paragraph 54, this argument fails at every stage. 60. The third point made in criticism of [Trojan 80] is that he failed to pass on to [the DSO] accurate information about the position of the [SFOs] in the minutes after it became apparent that Mr de Menezes was leaving the bus. However, [Trojan 80] was reliant for his information on the tactical adviser who was with the team on the ground, ‘Trojan 84’. That officer initially told [Trojan 80] that his team were ‘not in contention’ because they were behind the wrong bus. [Trojan 80] duly passed on that information. Even if it were incorrect, it is difficult to criticise him for passing it on.”
114.  If, contrary to all of the above, any of the allegations were made out, the coroner concluded that none approached the level of gross or criminal negligence.
(d)  Conclusion
115.  In light of the above, the coroner decided not to leave the potential short-form verdict of unlawful killing to the jury in respect of the senior officers and instead left them to decide between a verdict of lawful killing and an open verdict.
116.  The coroner also included in his Ruling a list of proposed questions which would be left to the jury and which required responses of “yes”, ”no”, or ”cannot decide”. Having heard the parties’ submissions, on 1 December 2008 he finalised the list of questions to include questions of fact concerning the events in the train carriage and questions concerning the factors which had contributed to Mr de Menezes’ death. However, he refused to leave “open questions” to the jury inviting them to add any other factors which they regarded as causally relevant.
117.  On 2 December 2008 Mr de Menezes’ mother had sought leave to apply for judicial review of the coroner’s decision to exclude both the verdict of unlawful killing and certain narrative verdict questions. At the hearing, she pursued the second point only because by that date the coroner had started summing up and had already indicated the verdicts which were to be left to the jury.
118.  The claimant argued that the coroner had been obliged to ensure that the jury members were permitted to resolve the disputed factual issues at the heart of the case and were able properly to determine by what means and in what circumstances Mr de Menezes had come by his death. The question of how he came by his death went far beyond determining whether to return a verdict of lawful killing or an open verdict. The coroner’s approach had precluded the jury from commenting on whether or not they regarded any particular failings by the police as serious and, if so, how serious – and how important in terms of accountability – these failings were. As such, the jury’s findings were at best likely to beg more questions and at worst be confusing or meaningless. The claimant therefore wished to put additional narrative verdict questions to the jury once the coroner’s summing up was finished.
119.  On 3 December 2008 Silber J refused leave to apply for judicial review.
120.  First, he found that the existing verdicts and questions satisfied the statutory obligation under section 11 of the Coroners Act and Rule 36(1)(b) of the Coroners Rules (see paragraphs 167 and 168 below) to enable the jury members to ascertain by what means and in what circumstances Mr de Menezes had come by his death. Furthermore, the inquiry required by the coroner of the jury in this case was significantly more demanding than that sought from, and given by, the jury in both Bubbins v. the United Kingdom no. 50196/99, ECHR 2005‑II and McCann and Others v. the United Kingdom 27 September 1995, Series A no. 324, and in those cases this Court had found that the procedural obligations under Article 2 of the Convention had been met.
121.  Secondly, the judge observed that the claimant had not pointed to any case decided domestically or in this Court which held that specific questions were required to be asked of a jury over and above asking “by what means and in what circumstances” the deceased had died.
122.  Thirdly, as the coroner had a discretion “to decide how best in the particular case to elicit the jury’s conclusion on the central issue or issues”, the judge considered that the only grounds for interfering with it would probably be Wednesbury grounds; namely, that the coroner’s decision was so unreasonable that no reasonable coroner would have done the same.
123.  Fourthly, the judge found that there was a risk that if the jury members were required to answer the additional questions proposed by the claimant they would be acting in contravention of Rule 36(2) of the Coroners Rules 1984 by expressing opinions on matters other than those on which they were entitled to comment and, in particular, by appearing to determine questions of criminal or civil liability.
124.  Fifthly, he considered that the proposed questions would expose the jury to a risk of making contradictory and conflicting findings.
125.  Sixthly, the judge found that the claimant had failed to show, even arguably, that there were strong grounds for disturbing the decision of the coroner.
126.  The claimant’s grounds relating to the short-form verdicts were adjourned generally with liberty to both parties to apply to restore. The claimant subsequently agreed that no further action would be taken in relation to these grounds because, inter alia, even if the judicial review was successful the only remedy for the family would be for the court to order a fresh inquest and the claimant did not “see any great benefit in re-hearing all the evidence to enable a different jury to come to a verdict, particularly bearing in mind the very high cost of holding such an inquest”.
127.  On 12 December 2008 the jury returned an “open verdict”. In answering the questions left to them the jury found as follows:
a)  that Charlie 12 did not shout “armed police”;
b)  that while Mr de Menezes did stand up before being grabbed in a bear hug by one of the surveillance officers, he did not move towards the SFOs;
c)  that the general difficulty in identifying the man under surveillance in the time available and the innocent behaviour of Mr de Menezes (which may have increased suspicion) were not contributory factors to his death;
d)  that the following were contributory factors to his death: the failure to obtain and provide to surveillance officers better photographic images of the failed bomber Hussain Osman; the fact that the views of the surveillance officers regarding the identification of the suspect were not accurately communicated to the command team and the SFOs; the failure by police to ensure that Mr de Menezes was stopped before he reached public transport; the fact that the position of the cars containing the SFOs was not accurately known by the command team as the SFO teams were approaching Stockwell underground station; the shortcomings in the communications system between various police teams on the ground; and a failure to conclude at the time that surveillance officers could have been used to carry out the stop on Mr Menezes at Stockwell underground station; and
e)  it was not clear whether the pressure on police after the suicide attacks in July 2005 was a contributory factor to Mr de Menezes’ death.
128.  After the verdict the coroner delivered a report as he was required to do under Rule 43 of the Coroners Rules 1984. In the report he identified MPS systems and practices which gave rise to concern and the risk that other deaths might arise in the future. He further identified action which should be taken to prevent the occurrence or continuance of such circumstances or to eliminate or reduce the risk of death created by such circumstances. The coroner also reviewed material indicating which remedial steps had already been taken to develop police practice since the events of July 2005.
129.  In the report the coroner expressed concerns about the command structure employed by the police on 22 July 2005 and observed that the Association of Chief Police Officers (“ACPO”) manual on the police use of firearms and the command structure should be reviewed. He also made specific recommendations about the role of the DSO, who was responsible for ordering any intentional shot that might be required in anti-terrorist operations.
130.  The coroner also reported on the communication problems that the jury found had contributed to the death of Mr de Menezes. He recommended that changes should be made to the systems and methods of communication to ensure that there was better information available to enable accurate identification to be made and communicated and to ensure that appropriately trained police officers were available to deal with possible terrorist threats on the basis of as much up-to-date information as possible.
131.  Finally, the coroner made recommendations about the recording of briefing and control room activity and recommended that the practice of police witnesses conferring before recording their accounts of events should cease.
132.  Following the inquest, further meetings and exchanges of correspondence took place between the CPS and Mr de Menezes’ family. On 26 March 2009 the family asked the DPP to review the decision not to prosecute in light of new evidence which had emerged at the inquest.
133.  On 8 April 2009 the DPP confirmed by letter that there remained insufficient evidence to prosecute any individual.
134.  Mr de Menezes’ family did not apply for leave to seek judicial review of this decision, considering that there would be no prospect of success in light of the previous judicial review action. The factual matrix had not significantly changed: the claim would have been on similar grounds to the previous claim for review and was therefore bound to fail.
135.  By letter dated 2 October 2009 the Chairman of the IPCC rejected the family’s request to review its decision not to initiate disciplinary proceedings as no new evidence had emerged during the inquest to justify bringing disciplinary charges against any individual officer.
136.  He noted that the trial of the OCPM and the inquest had confirmed the conclusion of the IPCC that Mr de Menezes was killed because of mistakes that could and should have been avoided. Indeed, the trial of the OCPM, the coroner’s report, the IPCC recommendations, Her Majesty’s Inspectorate of Constabulary, the MPA and the MPS had all recognised the organisational failings that led to his death. Major efforts had been made to rectify these organisational failings and it was necessary to take them into account when judging the individual culpability of the officers concerned. Every independent judicial, prosecuting and disciplinary authority which had considered the conduct of the officers had concluded that individual criminal or disciplinary charges were not merited.
137.  In respect of Charlie 2 and Charlie 12, there was insufficient evidence to undermine their claim that they honestly believed they were dealing with a suicide bomber or to warrant proceedings based on the disciplinary offences of using excessive force or abusing authority. The officers had had at best five to ten seconds to assess whether to shoot to kill and given the overall scene of confusion, coupled with the stress of the circumstances, it was not possible to conclude that the mistakes which were made were deliberate or negligent.
138.  With regard to Commander McDowall, the IPCC concluded that it was not likely that any tribunal would find that failings which occurred after he set his strategy were due to negligence on his part.
139.  As for Commander Dick, the IPCC had regard to the criminal jury’s unambiguous conclusion that she had no personal culpability, especially as no evidence had emerged at the inquest which would cause a disciplinary tribunal to ignore this finding.
140.  The IPCC considered that there was no evidence that might cause a tribunal to accept the jury’s rider in respect of Commander Dick but not in respect of Trojan 80 or DCI C.
141.  In respect of “James”, the IPCC accepted that the degree of doubt as to the identity of Mr de Menezes was not communicated sufficiently clearly by the surveillance team. However, the IPCC concluded that this was the result of technical as well as personal shortcomings, the speed and stress of the circumstances and the lack of an unambiguous communications process.
142.  A civil action in damages was brought by the family of Mr de Menezes (including the applicant) against the Commissioner of Police of the Metropolis. This was settled by way of mediation during the week of 16 November 2009. The settlement was on a confidential basis.
143.  Following the death of Mr de Menezes the MPS took a number of steps to improve its methods of command and control in counter-terrorism operations. In particular, a common command model was introduced for planned firearms operations, a smaller team, or “cadre” of firearms commanders was formed, a new cadre of ACPO officers was created to deal with high-risk counter-terrorism operations and a new ACPO Firearms Manual was published.
144.  In addition, a Surveillance Command was formed to provide consistency of training, procedure and professional practice and to create a platform for increased inter-operability (that is, how different units and personnel work together operationally) with other departments and national units. There has been a structured rotation of teams between counter-terrorism and crime operations to familiarise personnel in both types of operation.
145.  Furthermore, a new counter-terrorism control room came into operation and steps were taken to clarify the roles and responsibilities of control room staff and to provide them with high quality training. Operational delivery of a new secure photo-imaging system for transmitting images of suspects and other data has also taken place. Audio recording is now available in the control room, which is activated when dealing with any suicide bombing threat, and a new and evolving covert airwave communication system has been introduced to ensure effective radio communications are available throughout the London underground system as well as above ground.
146.  Pursuant to ACPO guidance issued in October 2008, the practice of officers writing up their notes together after an incident has ceased in cases where police officers have discharged firearms. Internal instructions drawn up in consultation with the IPCC and DPS have since extended this change of practice to officers involved in other (non-shooting) death and serious injury cases.