The charge alleges the force “failed to conduct its undertaking, namely the investigation, surveillance, pursuit and detention of a suspected suicide bomber, in such a way as to ensure that the person not in its employment (namely Jean Charles de Menezes) was not thereby exposed to risks to his health or safety”.
In a statement released after the hearing, the Met said the prosecution was based on actions taken by officers facing “extraordinarily difficult circumstances” on that day. It said they were “not criminal acts” and that the officers had the support of the force.It went on: “The decision to defend the case has been reached after the most careful consideration. It is not about diminishing the tragedy of Jean Charles de Menezes’ death.
“We see it as a test case not only for policing in London but for the police service nationally. It also has implications for the general public in that it concerns the ability of the police service to protect the public at large when carrying out armed operations.
“We also profoundly question whether health and safety at work legislation, originally designed over 30 years ago to protect employees in the workplace or those affected by commercial enterprises, is the right ‘vehicle’ for evaluating the actions of an emergency service in relation to decisions made during fast-time, life-at-risk anti-terrorist policing operations.”
There are a couple of interesting aspects to this. One is the apparent absence of wiggle room in the charge brought by the Crown Prosecution Service. Whether ‘criminal acts’ were committed, whether officers faced difficult circumstances or whether the individuals responsible enjoy the support of the force: these are not issues. The CPS isn’t even asking whether the risk to the public posed by police action was avoidable, let alone whether it was in some sense acceptable. The question is whether the Metropolitan Police, collectively, conducted anti-terrorist operations in such a way as to avoid endangering the life of Jean Charles de Menezes. Defending the Met against that charge isn’t a brief I’d like to take.
That said, it seems unlikely that the Met’s defence case will rest on the claim that they didn’t put de Menezes at risk. One line of defence is hinted at by the (otherwise baffling) comment that the case concerns the ability of the police service to protect the public at large. As a member of the public at large, that’s very much my own view of the prosecution, and one reason why I’d like it to succeed. The police statement presumably intends a different inference: to convict the people responsible for de Menezes’ death, by implication, would make it harder for the police to protect the public at large. We shouldn’t hold one death against them – after all, another time that guy running for the train with a Metro under his arm might actually be a suicide bomber, and if they couldn’t shoot him down like a dog we’d all be sorry. Well, maybe.
The Met’s other line of defence concerns the appropriateness of Health and Safety legislation. I’m in two minds about this. On one hand, you can see their point – this isn’t legislation that was drafted with police work in mind, and to have it apply to anti-terrorist policing seems particularly incongruous. On the other, the argument against having it apply seems shaky. Should the police be exempted from a duty of care towards the public – or at least, a duty not to put the public’s lives at risk? Should armed police? It’s not an appealing thought. As for this specific case,
criminal charges against the officers responsible a prosecution for corporate manslaughter would be more conventional – but, since that isn’t likely to happen offence doesn’t exist in English law, a Health and Safety prosecution is hard to argue with. [Thanks to Chris for pointing out the obvious problem with my initial thoughts. It was late.]
So it’s an odd case, but I think the charge is fundamentally sound – and, as it stands, unchallengeable. My only real misgivings concern what happens when it gets to court (not until next January); I hope for the best and fear the worst. In particular, I fear that the Met and its allies in the press will play up the novelty of a Health and Safety prosecution – conveniently ignoring the absence of any other prosecution – and harp on the vital importance of anti-terrorist work. At worst, the Met could end up laughing the case out of court – and securing themselves a Get Out Of Jail Free card in the process, against the day they screw up again and kill another innocent passer-by.
Mind how you go.