Attack in London Today

The Wrap: A worm's eye view

Monday August 22, 2005


The war on terror has become a convenient excuse for murder, says Andrew Brown
In November 2001 I spent a week watching evening television in hotel rooms around America, just after the phrase "war on terror" had come into general use. Some of what I saw was excellent. I will never forget a scene from a documentary about the Afghan war, showing a young Russian conscript crawling from the ruins of his armoured car before a mujahid stood over him and blew his brains out. The expression on the crawling boy's face taught me something about war that no other medium could have done. In those days, of course, the mujahideen were freedom fighters.

But the "war on terror" was for the most part used just as a kind of advertising banner to brand films of powerful aircraft taking off to bomb mountain ranges half way round the world. When it appeared as "America's war on terror" it was even more similar to the banners all around me selling Americans America's something or other.

Of course, the "war on terror" never made sense - how do you end such a thing? "When all the terrorists are eliminated", as Dick Cheney told a European journalist once? But that's not to say the phrase wasn't effective or important. It expressed anger; it made thought difficult and it obscured still more of the real world.

Now it has crossed to this country, and is being used in comments on the killing of Jean Charles de Menezes, the Brazilian electrician shot dead on a tube train in south London by plainclothes police. At first, we were told that he was a suicide bomber; then that he had behaved like one - wearing a padded jacket, running when challenged. Leaks from the enquiry last week suggest that he was dressed in a light denim jacket, and reached the train quite normally, paying for his ride and picking up a free paper, before being grabbed when he reached it by one policeman, who held him immobilised while a colleague shot him seven times in the head at close range.

One of the most interesting things about these false stories is that many of them seem to have come from a civilian eyewitness to the killing who simply cannot have seen what he was sure he saw. The point is that he knew, like everyone else in London, that there were men roaming around the city willing to let off bombs in the tube, and he desperately wanted them killed in their turn. So that's what he saw.

Journalists are held to different standards of objectivity. They have to wrap their opinions in rhetoric, and in the "war on terror", everything is possible. Here is a front page lead from the Daily Express: "Police who shot dead an innocent man in the war against terror should not face murder charges, their fellow officers said last night."

Serving police officers always take the view that their colleagues should never face charges for any excess of zeal. That is precisely why the rest of us have an interest in a policy of zero tolerance for police wrongdoing. It is unarguably true that innocent civilians are killed in war. It should also be axiomatic that if the police kill innocent civilians, the word, and the charge, for what they have done is "murder".

The Sun columnist Richard Littlejohn devoted an entire column to defending "the poor bloody infantry", as he called the police. The phrase has a fine martial ring - except that even the British army is not allowed to shoot innocent unarmed men on tube trains. Besides, the infantry are called poor and bloody because it's their job to be shot at, even more than to shoot back. This just isn't true of the police. The civilian police may risk their lives, but only by way of exception. It's not what they join up for.

In a real war, the infantry know very well what may happen to them. I suppose the one consolation for the parents of Jean Charles de Menezes is that he can have had no idea at all that he was about to be killed before a complete stranger grabbed his arms and another shot him seven times in the head. He didn't know he was in the middle of a war. We shouldn't insult his memory by pretending that he was.

SNAFU (cockup), or murder? Where is the line?

Principle

This section offers guidance of general application to all offences susceptible to the defences of:

self defence;
defence of another;
the prevention of crime; and
lawful arrest and the apprehension of offenders.

This guidance is particularly relevant to offences against the person and homicide, and prosecutors should refer to Offences against the Person, incorporating the charging standard, elsewhere in this guidance and Homicide, elsewhere in this guidance.

In the context of cases involving the use of violence, the guiding principle is the preservation of the Rule of Law and the Queen's Peace.

However, it is important to ensure that all those acting reasonably and in good faith to defend themselves, their family, their property or in the prevention of crime or the apprehension of offenders are not prosecuted for such action. Refer to joint CPS and ACPO leaflet - Householders and the Use of Force Against Intruders.

When reviewing cases involving assertions of self-defence or action in the prevention of crime/preservation of property, prosecutors should be aware of the balance to be struck:

the public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and
in discouraging vigilantism and the use of violence generally.

Prosecutors should be aware of the sensitivity of such cases. This is particularly so when the alleged victim of an offence was himself/herself engaged in criminal activity at the relevant time. For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.

When considering cases where an argument of self-defence is raised, or is likely to be raised, you should apply the tests set out in the Code for Crown Prosecutors, refer to the Code for Crown Prosecutors elsewhere in this guidance.

The guidance in this section should be followed in determining whether the Code tests have been met.

When considering the sufficiency of the evidence in such cases, you must be satisfied that there is enough reliable and admissible evidence to rebut the suggestion of self-defence. The prosecution must rebut self-defence to the criminal standard of proof, see Burden of Proof in this section below.

If there is sufficient evidence to prove the offence, and to rebut self defence, the public interest in prosecuting must then be carefully considered.


Guidance

The Law and Evidential Sufficiency
Self-defence is available as a defence to crimes committed by use of force.

The basic principles of self-defence are set out in (Palmer v R, [1971] A.C 814); see also (Archbold 19-41);

"It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary."

The common law approach as expressed in Palmer v. R and other authorities, is also relevant to the application of Section 3 Criminal Law Act 1967 (Archbold 19-39):

"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."

Section 3 applies to the prevention of crime and effecting, or assisting in, the lawful arrest of offenders and suspected offenders. There is an obvious overlap between self-defence and section 3. However, section 3 only applies to crime and not to civil matters so, for instance, it cannot afford a defence in repelling trespassers by force, unless the trespassers are involved in some form of criminal conduct.



'Reasonable Force'
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.

It is important to bear in mind when assessing whether the force used was reasonable the words of Lord Morris in (Palmer v R ,1971 A.C. 814);

" If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...".

The fact that an act was considered necessary does not mean that the resulting action was reasonable. (R v Clegg 1995 1 A.C. 482 HL) and (Archbold 19-41).

However, where it is alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used.

In (R v Martin (Anthony) [2002] 1 Cr. App. R. 27), the Court of Appeal held that whilst a court is entitled to take account of the physical characteristics of the defendant in deciding what force was reasonable, it was not appropriate, absent exceptional circumstances which would make the evidence especially probative, to take account of whether the defendant was suffering from some psychiatric condition.

In (R v O'Grady 85 Cr App R 315), it was held by the Court of Appeal that a defendant was not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which had been induced by voluntary intoxication.


Use of force against Those Committing Crime

Prosecutors should exercise particular care when assessing the reasonableness of the force used in those cases in which the alleged victim was, or believed by the accused to have been, at the material time, engaged in committing a crime. A witness to violent crime with a continuing threat of violence may well be justified in using extreme force to remove a threat of further violence.

In assessing whether it was necessary to use force, prosecutors should bear in mind the period of time in which the person had to decide whether to act against another who he/she thought to be committing an offence

August 18, 2005

Legal briefing: when police shoot to kill

Tim Owen, QC, from Matrix Chambers, explains the penalties that police officers face when they open fire on suspects. Mr Owen acted for the family of Harry Stanley, a man shot dead by the Metropolitan Police in 1999, who mistook a table leg he was carrying for a gun



Under the normal rules of engagement, when can police open fire on suspects?

Where an officer uses lethal force against a suspect he will be guilty of murder unless he can rely on the statutory defence in section 3 of the Criminal Law Act 1977 which permits the use of "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 a suspected offender".

Reasonable force can be used in self defence or defence of another. That defence must be disproved by the prosecution before an officer could be guilty of murder. Considerable leeway is given to the fact that an officer may have to make a split second judgment. An honest but mistaken belief that it is necessary to fire does not deprive the officer of the defence.

Thus, in any given case there will be two questions to be resolved.

(1) Did the officer honestly believe or may he honestly have believed that it was necessary to defend himself or another?

(2) If so, and taking the circumstances and the danger as the officer honestly believed them to be, was the amount of force which he used "reasonable"?

Also relevant is Article 2 of the European Convention on Human Rights, which declares everyone's right to life but makes an exception when deprivation of life results from the use of force by a state agent (such as a police officer) which is "no more than absolutely necessary…in defence of any person from unlawful violence".


Who is in charge of situations like these?

Each firearms incident is different and will involve varying degrees of involvement by senior officers exercising operational control over a firearms unit.

Ultimately, however, each officer who discharges his weapon remains individually responsible for his actions under the criminal law of homicide and he or she must be able to justify the decision to fire by reference to the principles of self defence or the prevention of crime.

Where a firearms incident is incompetently managed, however, and results in an unjustified use of deadly force then officers other than the one who actually fired may be criminally liable for the crime of gross negligence manslaughter.




How does a "shoot to kill" policy for suspected suicide bombers fit into the law?

No so-called "shoot to kill" policy can displace the criminal law principles of self-defence/prevention of crime or the European Convention principle that lethal force must be shown to be no more than is absolutely necessary.

Plainly, a new threat may lawfully give rise to new tactics to respond to it, but any fresh guidance or policy which had the effect of inciting or encouraging firearms officers to use lethal force other than in accordance with the principle of "absolute necessity" would be unlawful.

How do inquiries into police firearms deaths work?

Any incident involving the shooting of a member of the public by a firearms officer must be reported to the Independent Police Complaints Commission who must conduct a prompt investigation which satisfies the requirements of independence demanded by the European Convention on Human Rights.

This means that the IPCC must involve an external police force in the investigative work while retaining at all times complete control over the progress and conduct of the investigation.

Any interference at any stage of the investigation (such as delaying or obstructing the IPCC's investigative role) would constitute a breach of Article 2 of the European Convention on Human Rights. Where prima facie evidence of a crime emerges, the IPCC passes the results of its work to the Crown Prosecution Service for a decision to be made about criminal charges.

Has the Independent Police Complaints Commission shown itself to be sufficiently independent?

The IPCC has only been in existence since 1st April 2004, but it has generally been welcomed as providing greater levels of competence and independence than its predecessor, the Police Complaints Commission. Certainly many of the commmissioners have great knowledge and experience of cases which involve striking a balance between individual human rights and public safety.

The unanswered questions

* If the CCTV cameras showed Mr de Menezes using his Oyster card to open the ticket barrier, why did police sources suggest he vaulted it?

* Were cameras trained on the platform in full working order? Police and Tube sources contradict each other.

* How could all four cameras around the platform have failed at the same time?

* If the cameras had failed, why did the station log book contain no details of the fault?

* Why had CCTV onboard the train been removed?

London Police Modify Story
Brazilian Was Not Provocative

By Mary Jordan
Washington Post Foreign Service
Tuesday, August 23, 2005; Page A08

LONDON, Aug. 22 -- Scotland Yard acknowledged Monday that Jean Charles de Menezes, a Brazilian electrician mistaken for a suicide bomber, had done nothing unusual before he was shot after entering the London subway last month. Police said Menezes used a ticket to enter and had not jumped a turnstile, and they said he was not wearing a padded jacket that could have concealed a bomb.

That version of events, recounted by police in a written statement, was significant because it was similar to a widely publicized report leaked last week about the killing of Menezes, 27. The report, which followed an independent investigation, had contradicted an official explanation of why police shot Menezes seven times in the head on July 22.


Menezes was killed a day after bombs planted by four attackers on three subway trains and a bus failed to detonate. That attempt came two weeks after July 7 attacks on subway trains and a bus killed 56 people, including the four presumed bombers, and injured 700 others.

I just can't figure out--why the overkill on a guy who didn't do anything unusual?

Does Britain have jury trials?