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The Real Issue in the de Menezes Case
Publication date: 2006-07-22

Who's to Blame for the Killing of de Mensezes?

The decision by the British Crown Prosecution Service to prosecute the office of Metropolitan Police Commissioner under Sections 3 and 33 of the Health and Safety at Work Act 1974 for “failing to provide for the health, safety and welfare of Jean Charles de Menezes” at the Stockwell Tube station in London on 22 July 2005 is just another example of inability of the institutions of government in Britain to reason logically.

The logic implicit in this decision is, as follows:

  1. The Police knew that the man they intended to shoot by them was Jean Charles de Menezes.
  2. The Police had killed Jean Charles de Menezes.
  3. The killing by the Police of Jean Charles de Menezes was an act of failure to provide for his health, safety and welfare.
  4. Failure to provide for the health, safety and welfare of members of the public is an offence under Sections 3 and 33 of the Health and Safety at Work Act 1974 (like dropping a brick from scaffolding by a construction worker on a passer‐by).
  5. The office of Metropolitan Police Commissioner should be prosecuted under Sections 3 and 33 of the Health and Safety at Work Act 1974.

But Point 1 in the above argument is a false assumption. The Police did not know that the man they wanted to shoot was Jean Charles de Menezes (or even some other “innocent member of the Public”). The Police shot Jean Charles de Menezes because they believed that he was a person involved in an attempted suicide bombing.

By the very nature of the police work, the police seldom deals with clearly identified “convicted criminals”. Much of their work involves dealing with “suspects”, that is people who might be guilty of some crimes, or who might turn out to be “innocent members of the public”. And as police work does involve use of lethal force under certain circumstances, there can be cases when the police do kill an innocent person by mistake. And Sections 3 and 33 of the Health and Safety at Work Act 1974 do not apply to this case.

The real issues in this case are:

  1. What is the legal status of the “Shoot to Kill Policy”?
  2. What is the purpose of the “Shoot to Kill Policy”?
  3. Has the “Shoot to Kill Policy” sufficient provisions to protect “innocent members of the Public”?
  4. Did the Government officials who formulated the “Shoot to Kill Policy” act with sufficient competence, diligence and honesty to ensure that this policy achieves its legitimate objectives without causing unnecessary danger to the public?
  5. Did the Government officials communicate the “Shoot to Kill Policy” to the Police with sufficient competence, diligence and honesty to ensure that this policy achieves its legitimate objectives without causing unnecessary danger to the public?
  6. Was the “Shoot to Kill Policy” correctly applied by the police in this case?

It is only when the legal status and the rules of the Shoot to Kill Policy are clearly stated that the above questions can be answered. And from the answers to these questions it would become clear whether the responsibility for the death of Jean Charles de Menezes lies with (1) the police, who have failed to implement the Shoot to Kill Policy correctly, or (2) with the Government who have failed to formulate or communicate the Shoot to Kill Policy, or (3) whether the Government and the Police acted correctly and the death of Jean Charles de Menezes was just an unfortunate, but unavoidable accident.

To understand the issues better, let us ask the question, “If the man shot by the police at the Stockwell tube station was not an innocent Brazilian, but the person involved in the attempted suicide bombing whom the police intended to shoot, would they be acting correctly?” (We shall call this man “the suspect”).

There are two possibilities in this case:

  1. the suspect had left his flat and was going somewhere by tube without any arms or explosives on him and without any intention or ability to cause any explosion or similar destructive act, and
  2. the suspect had rigged himself out to cause an explosion and had entered the tube carriage with a clear intention to cause an explosion.

We shall consider these cases one by one.

Use of lethal weapons by the police is by its very nature hazardous, and, unlike office or factory work, seldom happens under controlled conditions. For that reason use of firearms by the police needs to be reduced to those cases, where failure to use them would lead to greater danger to the public than using them.

The only justification of the Shoot to Kill Policy by the police would be to prevent a person presenting an immediate danger of causing deaths, injuries or destruction, unless shot and killed.

Thus in the first case, where the suspect is unarmed and does not present immediate danger, shooting him with intention to kill is clearly unnecessary, and presents greater danger to the public than arresting him with use of minimal physical force (or any physical force at all if he chooses to follow the police instructions without resistance).

In the second case, where the suspect is armed and presents immediate danger to the public, then use of the Shoot to Kill Policy would be justified.

But then the question arises, at what point this should be done?

In the de Menezes case, the suspect was, “spotted” when he left his flat. He was allowed to proceed along streets and open spaces with few people in his proximity. He was allowed to enter the underground station, to go down the escalator, to enter a train, and to sit in a train carriage. Then a few police officers rapidly approached him. One officer held the suspect and, then he was shot.

But all this was possible only because the suspect was not armed and was not an intending suicide bomber. If he were one, the events would have taken a different turn.

If the suspect were a bomber, he would have been in a state of high alert. Having sat in a carriage he would have kept his finger on the detonating device. And having noticed men looking at him and approaching him, he would have most likely, almost instinctively, activated the detonator, before being shot and killed.

If the police indeed had good reasons to believe that the suspect presented immediate danger, still at the time when he left his flat, then why did they allow him to enter the underground carriage, and thus place himself in a position where the bomb, if detonated, would have caused more damage than, if he would have been shot in the open, still on the way to the station, at a time when he was still not in a position of high alert, and could have been shot with the minimal danger to the public.

From the statements by the senior police officers, and of government ministers, it does not appear that the death of the Jean Charles de Menezes was a result of “some rogue low rank policemen abusing their powers”. The police on the ground acted in accordance with the instructions of their superiors.

In the de Menezes case the police did not know that the “suspect” was not the man they were looking for. This is not unusual in police work. But there were no signs of the suspect being in possession of an explosive device, or of intending to cause an explosion. Thus, even, if the suspect were the man they believed him to be, he could have been arrested without any need to kill him. So the killing of Jean Charles de Menezes, was not an act of policing gone tragically wrong, but a blundered political assassination inspired by political propaganda, something the police should not be expected to engage in.

In another, more recent case, another “suspect” was shot at by the police under circumstances when he could have been arrested without use of firearms, or even physical force.

There are all the signs that the Shoot to Kill Policy is used by the Blair government not to protect the public, but to create an impression that “Blair is Tough on Terror”, just as was the use of tanks at the Heathrow Airport in 2003.

Rather than scapegoating the Police, there is an obvious need to re‐examine the purpose of the Shoot to Kill Policy, and the rules of its implementation. This would be the way towards preventing such blundered political assassinations, as the killing of Jean Charles de Menezes.

But there is also a way in which the senior police officers can “immunise” themselves from being scapegoated by politicians for the results of their own incompetence or dishonesty.

Whenever the police receives from the government any instructions, regulations, or laws on which the police should act, they should very thoroughly examine every point of such documents, asking the questions:

  1. Is the government imposing on the police tasks which are inconsistent with the purpose of the Police as an institution?
  2. Are the laws they are expected to enforce moral and just in their basic principles?
  3. Are the requirements practically implementable?
  4. Are the requirements sufficiently clear, or do they lead to ambiguous situations, which are not foreseen in the requirements?

Once such issues are identified, the senior police officers should serve on the government of the day, a questionnaire seeking to clarify each and every of the issues, and refuse to act upon them until the issues have been sufficiently clarified.

By following such procedure with due thoroughness and diligence, the police will prevent abuses of the Police as an institution by politicians, as well as immunise themselves from being used as scapegoats.

Politicians seek power without responsibility, but the government needs to be competent and honest.

Only by being “tough” on politicians, can one force them perform their duties, rather than letting them get away with playing politics.

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