The decision not to charge any police officers with the killing of Jean Charles de Menezes on a London tube is to be challenged in the European court of human rights.

The upper chamber of the Strasbourg court will next week hear the appeal almost a decade after the Brazilian electrician died at the hands of officers who were hunting suspected suicide bombers.

A string of police blunders led two members of the force’s elite armed unit, CO19, to open fire with their guns just 1cm to 8cm away from De Menezes’ head as another officer pinned him into a seat on an underground train at Stockwell station.

He died instantly on 22 July 2005; it was a fortnight after suicide bombings in London had killed 52 people. The Crown Prosecution Service decided the following year that no individual should be prosecuted.

In December 2008, an inquest jury returned an open verdict after rejecting the official account of the shooting. The Met was convicted of health and safety failures at the Old Bailey, fined £175,000 and ordered to pay £385,000 costs.

The challenge to the CPS was first lodged at the ECHR in 2008. It has been referred to the grand chamber of the court, which deals with cases potentially affecting interpretation of the European convention of human rights.

The decision is likely to be reserved. In the political context of the Conservative government’s pledge to renegotiate the judicial link with the Strasbourg court, the outcome of such a high-profile case could be politically significant.

The case has been brought by Patricia Armani da Silva, a cousin of De Menezes, who was living with him in London at the time of his death. The application for a judicial review of the CPS decision not to charge officers was rejected by British courts.

Harriet Wistrich, the solicitor at the London law firm Birnberg Peirce who represents the family, said that the CPS decision not to bring any prosecution was based on an assessment that there was effectively less than a 50% chance of conviction. That test, it will be argued, is not compatible with article 2 of the European convention which protects the right to life.

Applying guidelines set by the code for crown prosecutors too early, Wistrich said, when prosecutors have not seen witnesses give oral evidence, means that the test can prevent homicide offences from being punished. The threshold in other European states, it is argued, is not set so high as to require a conviction to be “more likely than not”.

Wistrich said: “The officers who shot Jean Charles have a defence if they had an honest belief that they were under imminent threat, even if they were mistaken and their mistake was wholly unreasonable.”

The De Menezes family, however, believe that the use of lethal force was excessive and unreasonable because there was no evidence that he posed any threat.

The Equality and Human Rights Commission, the UK government’s official advisory body, has intervened in the case.

Wistrich added: “The killing of Jean Charles de Menezes, a totally innocent man who was given no chance to surrender before being shot nine times in the head, caused great public concern, as has the fact that no officer was prosecuted or even disciplined for any offence arising from the tragic circumstances surrounding his death.

“The failure to hold any individual to account in relation Jean Charles’s killing and the unlawful killings of other members of the public has arguably led to a crisis in confidence that state agents in the UK who abuse their power will not be held to account.” The CPS declined to comment ahead of the ECHR case.



In a book published this week, John Wadham, former deputy chair of the Independent Police Complaints Commission, said the De Menezes investigation highlighted the need for greater independence of arm’s-length bodies, such as the IPCC, from central government.

In Beyond 2015, a collection of human rights essays, Wadham writes: “Immediately after the shooting of Jean Charles de Menezes at Stockwell underground station the chief constable of the Metropolitan police, Sir Ian Blair, wrote a letter to the Home Office (the IPCC’s sponsor) stating that ‘the shooting that has just occurred at Stockwell is not to be referred to the IPCC and that they will be given no access to the scene at the present time’.

“Despite the fact that this refusal by the police to give the IPCC access was unlawful, the IPCC then had to enter into three-way negotiations with its sponsor (the Home Office) and the police before access was granted, leading to a delay of three days.

“In the same case the deputy chair of the IPCC was summoned one early evening to see one of the three permanent secretaries of the Home Office to discuss the merits or otherwise of its decision to disclose crucial information the next day to the family of the deceased at a time when the media was awash with speculation and erroneous accounts of how Jean Charles de Menezes had died.

“The IPCC ignored the advice proffered but the fact that the Home Office felt it could take such a step creates its own difficulties and conflicts. It was, of course, this same Home Office that would later decide whether or not the chair, deputy chair and other commissioners would be re-appointed to their posts.”



