Just to keep you from danger

An open-and shut case?

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”.

Apparently not.

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.

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4 Comments

  1. Chris Williams
    Posted 21 September 2006 at 08:23 | Permalink | Reply

    “As for this specific case, criminal charges against the officers responsible would be more conventional “

    Perhaps, but I think that they’d be wrong. The guys who pulled the trigger weren’t to blame: it was a corporate failure of the Met (and quite possibly ACPO as well). Perhaps this is why the government has been resisting the offence of corporate manslaughter, because if it existed, that’s what the CPS would be hitting the Met with right now.

  2. Rob Jubb
    Posted 21 September 2006 at 12:51 | Permalink | Reply

    I suppose the sensible response to the ‘protecting the public at large defence’ is to ask exactly when De Menezes ceased to be a member of the public at large. It would be a very odd account of what protecting some group meant which including shooting members of it dead.

  3. Brian B.
    Posted 2 December 2006 at 23:50 | Permalink | Reply

    I’m afraid I think all these comments are both unfair and blinkered. If the shooting of de Menezes, poor fellow, is eventually held to have been an offence, on the grounds that the behaviour of the police failed to protect his ‘health and safety’ (in itself a ludicrous misrepresentation of what happened, surely?), it’s difficult to see how any police officer in future will ever feel able to use force against an individual who genuinely appears to be about to commit a terrorist (or other murderous) act, and who can’t be prevented from doing so except by force — which will often involve shooting to kill, since shooting to wound is obviously liable to precipitate the very act which it is intended to pre-empt. The only valid questions in this case, surely, are: did the police, including those who apparently authorised the use of force against the suspect, genuinely believe that he was about to explode a bomb and that the only way to prevent this was to kill him? If so, was that belief reasonable and based on a rational assessment of available evidence? Would there have been a preferable and equally safe alternative to killing the suspect if he had in fact been about to explode a bomb, and if so should the police have recognised and adopted it? The implication of the decision not to prosecute any of the individual police officers concerned is that a careful scrutiny of all the circumstances implied answers to all these questions in the officers’ favour. That being so, the police were faced with a choice between two evils: either to risk the lives of everyone in the tube carriage, including themselves, by not taking the one action that would have prevented the bomb from being exploded: or else to protect the lives of the innocent bystanders and themselves by killing the suspect, in the knowledge that the suspect might turn out not to have had a bomb after all.

    How confident are you that the police, in these circumstances, chose the greater evil and rejected the lesser? We impose a huge responsibility on our police, especially on those few who are armed and tasked with protecting us against terrorism. The least we can do is support them when they act in good faith but turn out to have made a terrible mistake.

    And incidentally, to suggest that in the light of the killing of de Menezes each of us is at greater risk of being shot by the police by mistake than at risk of being the victim of a terrorist attack is plain nonsense. Both risks are infinitesimal, but the first is obviously even more infinitesimal than the second.

    And finally, if you all have to get into such intellectual contortions to defend a prosecution in this case under ‘health and safety’ legislation, it must be just as absurd as it seems.

    Brian
    http://www.barder.com/ephems/

  4. Brian B.
    Posted 2 December 2006 at 23:58 | Permalink | Reply

    PS: Re-reading the original post, I’m gob-smacked by the passage reading:
    “On one hand, you can see their point – this [Health and Safety legislation] 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?”

    What a question! Can’t you see that the justification for shooting a suspect genuinely believed to be about to explode a bomb on a tube train was precisely in pursuit of a “duty of care towards the public”, so as “not to put the public’s lives at risk”?

    Brian
    http://www.barder.com/ephems/

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