Health and Safety 11 – lethal force
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
A person may use such force as is reasonable in the circumstances for the purposes of:
- self-defence; or
- defence of another; or
- defence of property; or
- prevention of crime; or
- lawful arrest.
In assessing the reasonableness of the force used, prosecutors should ask two questions:
- was the use of force justified in the circumstances, i.e. was there a need for any force at all? and
- was the force used excessive in the circumstances?
The courts have indicated that both questions are to answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr. App R 276), (R. v Oatbridge, 94 Cr App R 367) and (Archbold 19-49).
To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive. …
The above applies to everyone, including police officers (whether or not the law is equally applied is a matter of dispute).
So the firearms officers killed de Menezes because they had the honest belief that he was a threat and lethal force was reasonable in the circumstances.
At what point and why was this belief formed? One of the surveillance officers didn’t believe his suspect was a threat:
Ivor [one of the surveillance officers - ed] told the court that, when he was pursuing Mr Menezes into the station, he was told by commanders at the control room not to detain him.
He said he saw the ticket barriers as a “line in the sand” and thought the fact that he was told to let him go through meant there had been “information or intelligence which suggested it was safe”.
He didn’t see the suspect as a threat and thought that he couldn’t be a threat because he was allowed to enter the tube station.
Of course, he was but one of the men on the ground, each giving his information to his superiors in the (chaotic and noisy) operations room. It may be that his colleagues, the other surveillance officers, saw and reported differently. Hopefully we will hear from them.
But it is a pity that we aren’t going to hear from the firearms officers. After all they are the only people who can tell us why they had the honest belief that lethal force was reasonable in the circumstances.
Now, this may be because their superiors told them that de Menezes was a threat and lethal force was reasonable. Fine. I can see a jury accepting that if they were personally prosecuted.
So why did their superiors think lethal force was reasonable?
This was after all a guy who exited a block of nine flats, there was no certainty about his identity, he wasn’t carrying a visible means of harming anyone, and he was followed for 30 mins without harming or threatening anyone. He did alight and then get back on a bus – as many Londoners do – but does that mean lethal force is reasonable?
In reviewing some older articles, I recalled one of the prosecution’s allegations:
Completing the prosecution’s opening statement in the unprecedented trial, Ms Montgomery said the firearms teams assumed that whoever was followed from a stake-out would be their target.
As they later rushed towards Mr de Menezes sitting in a Tube carriage at Stockwell station on 22 July they were prepared to shoot because they believed by then he was a suicide bomber.
In fact, she told the court, inconsistent and unconfirmed reports, combined with confusion in the control room, meant that nobody knew if the Brazilian was the suspect or not. (BBC)