UK Liberty

Health and Safety 24 – guilty as charged

Posted in de Menezes by ukliberty on November 2, 2007

Well, as I’m sure you know by now, the court case is over, and the Office of the Commissioner of the Met has been found guilty.

I can’t see the point of the fine, to be honest. What’s the point in taking money from the police and giving it to the state? It’s all taxpayer money.

Anyway, quite a bit of coverage in the media, as you might expect, and a lot of calls for Sir Ian Blair’s resignation (eg the Independent). Is there a concerted campaign to unseat him? Perhaps because he seemed to get politically involved with Tony Blair, the Tories and LibDems are after him. I’m not sure. The Supreme Leader, Gordon Brown, has “full confidence” in Sir Ian Blair – I guess that means his resignation is in the post!

In any case, I don’t think the trial has brought to light exactly what happened and what went wrong. We still don’t know why (in a legal sense) the firearms officers shot de Menezes: they must have had an ‘honest belief’ that lethal force was necessary to protect themselves and/or the public, and this belief must have been reasonable in the circumstances, for them not to have committed an unlawful killing (murder or manslaughter).

Those specific officers were not called by either the prosecution or defence to give evidence during the trial (their leader, ‘Ralph’, gave evidence), perhaps because the state does not want firearms officers to take the stand. But surely this would have been helpful.

Let’s assume they did have the ‘honest belief’ – how then did they come by it? What information and orders were fed to them, and by whom, and what did they see on the Tube train, that contributed to this ‘honest belief’, reasonable under the circumstances, that lethal force was necessary?

This has yet to be answered, well over two years since his death. Perhaps the imminent release of the IPCC’s Stockwell One report, delayed from publication until after the trial, will answer it. Perhaps the inquest, which I am given to understand will now continue in December next year, will answer it. Perhaps not.

It just beggars belief that it has been well over two years and there is no answer to this question. I think a lot of people are missing this point.

As the family’s solicitor said, many questions remain unanswered: “In particular no evidence was heard from the officers responsible for shooting Jean Charles or from any of the civilian passengers who witnessed the shooting.”

By the way, as regular readers may have noticed, I haven’t mentioned the type of bullets used, nor how many were fired. I think it’s irrelevant, to be honest.

Something I haven’t linked to before – the IPCC’s frequently asked questions about the case (31Kb PDF) including a timeline of events and decisions about prosecutions and disciplinaries. Four senior officers may be disciplined.

Assorted people, including Damien Hockney, Ken Livingstone and so on, are claiming the verdict means the police won’t be able to do their jobs properly – I mean, this just shows complete absence of logic and thought. The point is, that they didn’t do their jobs properly – that is what the guilty verdict means.

Let’s take Chris Fox’s comments (former head of the Association of Chief Police Officers) for example:

“If the police are following a suspect bomber, they have to intervene before this individual can put the public gravely at risk,” he said in an interview.

“If there is not a firearms officers available because of emergency circumstances, the officer that does [intervene] will commit an offence, the organisation will commit an offence of putting themselves unnecessarily at risk.

What offence will the officer have committed?

“They will find themselves caught between two stools and this is really dangerous because they will be uncertain about what to do.

“The whole point of anti-terrorism work is that you have to make links. You have to follow suspects. And often suspects are suspect bombers.

“You have to follow them, to find the factory, their colleagues, locations and understand their plans. Now at what point do they become a suspect where you have to intervene?”

When you think they are a danger! Especially if you think they are a suicide bomber.

In practice, nobody yet knows where that point comes [says the BBC]

Well, that’s just nonsense. I mean, surely a ten year old could figure this out: if someone is a danger, you stop them being a danger; if they aren’t a danger, you can carry on following them. Not difficult.

With all that out of the way, let’s have a look at the news (my emphasis in bold):

19 Alleged Key Failings – BBC

Evening Standard-Met Chief Found Guilty

Ronald Thwaites QC, representing the Met, said the force would be lodging an appeal. He said the summing up by Mr Justice Henriques was “entirely pro-prosecution, unbalanced and totally lacking in objectivity”

Independent – A baffling litany of bad luck, tragic errors and panic in high places

while Ms Dick may have been clear in her own mind what was happening, the level of clarity was not shared on the ground.

The Special Branch team began pursuing Mr de Menezes as he made his journey to Stockwell Tube station by bus. The trial heard that at no point in the 34 minutes between the 27-year-old leaving his home and the moments when he was shot did the surveillance officers believe they had formally identified him as Osman.

Remember though, that the shooters must have formed the honest belief that lethal force was necessary – whether or not the suspect was believed to be Osman is irrelevant in that sense (but could certainly help form such a belief, to my mind).

Despite her denials, the chaos in the control room seems to have been epitomised by Ms Dick and the series of contradictory orders she issued in the moments before Mr de Menezes entered the Tube station– while CO19 officers were still on their way.

A log of the operation in Room 1600 shows how, in the space of four minutes, Ms Dick ordered the surveillance team to arrest the Brazilian, then directed that it should be done by the CO19 unit, then once more ordered the surveillance officers to intervene and, barely a second later, insisted that CO19 make the arrest after being told they were at the station.

Independent – De Menezes shooting: Police guilty of ‘catastrophic errors’

Mr Justice Henriques, the trial judge, said he accepted the botched operation was “very much an isolated breach brought about by quite extraordinary circumstances”. In an unusual move, the jury added a rider to its verdict saying that Ms Dick, now a deputy assistant commissioner, bore “no personal culpability” for the failings that led to Mr de Menezes’s death.

But the judge underlined that the Yard had fallen short to a “significant and meaningful extent” and significant aspects of its conduct remained unjustified: “One person died and many others placed in potential danger … There was a serious failure of accurate communication which has not been explained.

The Guardian – Guilty, but Blair refuses to go

Fining the force £175,000 and ordering it to pay £385,000 in costs, judge Mr Justice Henriques called on the force to learn lessons.

He said: “Every single failure here has been disputed. Some of these failings have been simply beyond explanation. There has been no single admission to any one of the alleged 19 failings.

Delivering their guilty verdict, the jury made clear that Cressida Dick, who led the operation, bore “no personal culpability”. Mr Justice Henriques said a “corporate failure” lay behind the tragedy. “This was very much an isolated breach brought about by quite extraordinary circumstances,” he said.

But he said the failure to have firearms officers in place had led to the killing of the 27-year-old Brazilian. If the strategy had been followed, he said, it “would have prevented any suspect boarding the public transportation system and would … have avoided this terrible tragedy”.

The prosecution had outlined 19 separate failures. Sentencing the Met, the judge highlighted particular shortcomings including commanding officers’ mistaken belief that surveillance officers following De Menezes had “positively” identified him as a terrorist [with a bomb or not? – ed] The control room at Scotland Yard was noisy, making communications difficult, said the judge, who added that the briefing firearms officers received was inaccurate and “unbalanced”.

I hope the transcript of the briefing is published.

The judge praised the bravery of individual officers [especially ‘Ivor’ – ed] but said the force should learn lessons and questioned its tactics in the trial. He said the bill to the taxpayer could “very easily have been minimised”.

The Guardian – Confusion, delay, disaster: how police got the wrong man

According to Ms Dick’s evidence, at first the reports from the team on the ground were that the man being followed was not Osman, whom police had given the codename Nettletip. That changed, and Ms Dick said she was told five times that the team thought the suspect was Osman and was told the confidence in the identification grew stronger.

Ms Dick explained the factors behind her eventual order that the subject be stopped. The first factor was the surveillance team’s repeated belief that the man was the terrorist suspect they were hunting. She added: “Secondly, from the behaviours described to me – nervousness, agitation, sending text messages, [using] the telephone, getting on and off the bus, all added to the picture of someone potentially intent on causing an explosion.”

Or just another Londoner on the way to work!

according to the evidence of one surveillance officer, six people emerged from the block of flats before De Menezes and were not stopped. The police in court said the plan Commander McDowell had laid down was “finessed” once it was realised there was a communal entrance to the flats.

After getting on the train the Brazilian had undercover officers surrounding him, posing as commuters.

The train did not move, staying in the station because a surveillance officer jammed a carriage door with his foot. As the train waited the SO19 team hurtled down the escalators and reached the carriage.

They were not undercover, but wore caps identifying them as police officers. One had a long barrelled weapon visible. If De Menezes had been a suicide bomber he would have had ample time and warning to detonate his device, said the crown.

They entered the tube carriage where they were recognised by surveillance officers, who at first quietly pointed in De Menezes’ direction, then one said: “He’s here,” and pointed again.

What happened next is still disputed by the Brazilian’s family. Police say they shouted a verbal challenge at which point De Menezes stood up. An official investigation could find no independent witness on the train who heard the police shout any warning or to back up the substance of their account.

IPCC’s Stockwell Two report says, “Whether Mr de Menezes was challenged is disputed and forms part of the Stockwell 1 investigation [not yet in public domain- ed]. However, there is no suggestion that the challenge is one that an innocent man would have understood or that Mr de Menezes was given instructions that he could have chosen to obey.”

Of course, with all we’ve been told about suicide bombers, how important it is that we immediately incapacitate them without warning – I still don’t understand why they would be challenged.

After De Menezes stood up, a surveillance officer called Ivor told the jury that he “instinctively” grabbed him. He said that De Menezes arms moved downwards, heading towards his midriff, an action interpretable as a motion trying to detonate a device.

Let’s not forget the smears:

The Times -Sir Ian Blair didn’t pull the trigger, but will he take the blame?

Although Sir Ian has publicly apologised to the de Menezes family in the past and repeated that apology outside the Old Bailey, Mr Thwaites questioned the dead man’s character and his actions on the day that he died. He suggested to the jury that the young Brazilian had reacted aggressively to a police challenge because he might have been carrying cocaine or had a forged stamp in his passport.

Mr de Menezes, 27, had small traces of the drug in his system [allegedly! – ed] and was in Britain illegally [allegedly! – ed], but neither factor had previously been advanced as a reason or excuse for shooting him. [um… actually the cocaine, illegal presence, and a rape allegation, were made well before the trial – ed]
The Met’s lawyers were also accused in court of doctoring a photograph of Mr de Menezes and Hussain Osman, the terrorist for whom he was mistaken, to make them look more alike and to explain better the error that had been made.

Mr Justice Henriques, the trial judge, pointed out that Mr de Menezes was “a perfectly innocent man” and criticised Scotland Yard for adopting “an entrenched position”. The judge suggested that the Met could have reduced the £385,000 cost of the trial by adopting a less rigid stance.

The Independent – Police guilty of ‘catastrophic errors’

The family of Mr de Menezes expressed fury at the conduct of the Yard and its lawyers during the trial, accusing the police of a “sickening” attempt to smear the Brazilian by suggesting his behaviour and personal life could have contributed to his death. The jury was told a post-mortem examination showed Mr de Menezes had taken cocaine [note that the pathologist said he could not speak with any expertise on when JCdM had consumed it – ed] – although it was highly unlikely the drug could have still been affecting him on the day of his death – and had a forged immigration stamp in his passport.

Ronald Thwaites QC, for the defence, said it was possible these factors explained why the Brazilian had allegedly behaved in an “aggressive and threatening manner” as armed police approached him in a London Underground train carriage.

The Guardian – How the Met changed its tone on the shooting

In his closing speech, Ronald Thwaites, QC, the Met’s defence barrister said of De Menezes: “He was shot because, when he was challenged by police, he did not comply with them but reacted precisely as they had been briefed a suicide bomber might react at the point of detonating his bomb.”

Now, another key question I have is this: would an innocent person be likely to react in a similar way? Another point that has been missed by the media. Again, it would be interesting to see the briefing that relates to this.

Mr Thwaites went on to paint a damning portrait of the dead man: “Not only did he not comply, he moved in an aggressive and threatening manner.” He suggested that De Menezes might have been worried about traces of drugs or a phoney visa. “Did he fear he might have some drugs in his jacket and might want to get them out and throw them away when he was challenged by the police?”

Towards the very end of the trial, Mr Thwaites also tried to make the judge, Mr Justice Henriques, disqualify himself on the grounds that he was “entirely pro-prosecution, unbalanced and totally lacking in objectivity”.


The Register has perhaps the most insightful comment on Livingstone and the like:

Some people, including Red Ken the people’s mayor, reckon the verdict will paralyse the armed plods in future – they’ll never dare to shoot, runs the reasoning, in case there’s another trial like this one.

“I think this is disastrous,” said Ken.

“If an armed police officer believes they are in pursuit of a terrorist who might be a suicide bomber and they start making these sort of calculations based on this, how is this going to be seen? Am I going to be hauled off to court?”

Given that the officers who shot de Menezes have suffered absolutely no consequences from this trial – indeed, were not “hauled off to court” even to testify – that seems pretty silly.

5 Responses

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  1. Ruth said, on November 3, 2007 at 3:33 pm

    Hello, I’m a student journalist researching a story about Len Duvall’s response to the guilty verdict- he basically said the shooting was a regrettable mistake that shouldn’t have been taken to court and allowed to overshadow all the “simultaneous police operations during that time that were successful.” May I quote from this blog entry in an article for class discussion? Please contact me by email with any questions or if you’d rather I didn’t quote you.

  2. follyfancier said, on November 5, 2007 at 2:23 am

    Is this the same Ken Livingstone who was opposed to a shoot to kill policy for IRA terrorists?

  3. ukliberty said, on November 5, 2007 at 1:18 pm

    Hi Ruth,

    Sure you can quote.

    With regard to Len Duvall’s comment, it seems pretty reprehensible. As the judge said to the jury, “You are not in any way concerned with the future or the effect of this prosecution. To suggest that it is wrong to prosecute the police for an alleged offence under the Health and Safety at Work Act is to submit that the police are above the law. It applies to them as it applies to any other employer. They are accountable.”

  4. ukliberty said, on November 5, 2007 at 1:45 pm

    Follyfancier, I’m not aware of Livingstone’s thoughts on that matter. Do you have any URLs? I tried a Google, but no joy.

  5. follyfancier said, on November 15, 2007 at 7:15 pm

    ukliberty here is a reference for you:


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