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22 November 2007
November 22, 2007
Metropolitan Police
Latest News
Summary of legal advice
The MPS has published a summary of the legal advice we received in relation to the prosecution under health and safety legislation into the circumstances leading to the death of Jean Charles de Menezes at Stockwell Underground Station in July 2005.
The summary:
http://cms.met.police.uk/met/content/download/16369/73792/file/Report.pdf
THE STOCKWELL SHOOTING
HEALTH AND SAFETY PROSECUTION
THE QUEEN
-v-
THE OFFICE OF THE COMMISSIONER OF POLICE
FOR THE METROPOLIS
__________________________________
JOINT OPINION
PROPRIETY OF DEFENCE
AND
ADVICE ON APPEAL
__________________________________
1. We are asked to give our short formal written opinion in answer to two discrete questions in light of the jury’s verdict and the judge’s sentencing remarks:
a. Was it proper and reasonable for the MPS to contest the indicted charge fully through trial?b. Does the MPS have substantial grounds to overturn the resulting conviction on appeal?
2. On these questions we first gave our opinion, in terms, to the Commissioner himself, at court and immediately after the jury returned its verdict. We have not meantime had cause to change the views we then and there expressed to him. Our answers in brief, expanded upon below, are these:
a. Yes.b. There are several arguable grounds of appeal arising out of the judge’s legal rulings and/or his conduct in the trial, but we feel that on balance they are unlikely to lead to the conviction’s being overturned as “unsafe”, the sole ground on which the Court of Appeal has power to quash the jury’s verdict.
Contesting the Charge
3. Section 3 of the Health and Safety at Work Act 1974 (“the Act”), under which the MPS was prosecuted, has never before been used to prosecute a police or other emergency service in the circumstances which arose in this case or any even remotely similar circumstances. The Act was not originally intended to cover such a case. We remain of the view that, as we advised at the outset, this was never going to be an easy case to defend but that it was right to do so given that there were full and potentially persuasive answers, through the evidence of senior officers, to each and every one of the allegations.
4. It was no part of the defence to claim that we were perfect that day, less still that the MPS was above the law. Our stance from first to last was that we were accountable in law and that we had done all that was reasonably practicable in the unique and difficult circumstances which presented themselves to us on the morning of 22 nd July. That was a proper and reasonable stance to take.
5. Where allegations were factually disputed (for example, the supposedly “chaotic” conditions in the Operations Room, and the suggested ignorance of the SO12 surveillance teams as to the involvement, progress and ready availability to them of a CO19 specialist firearms team) the evidence we relied upon (and which came very largely from police officers whom the Crown itself called as prosecution witnesses) was coherent and credible.
6. Where allegations were disputed on grounds of differing interpretations of agreed facts, or issues about police practice and experience and the soundness of professional judgments by officers (for instance, the wisdom or otherwise of a specialist firearms team making an armed intervention in close proximity to an address connected with suspected failed suicide bombers, or on a person who had not been positively identified as a suspect; or the prudence of attempting to suspend bus stops or bus routes or other parts of the transport system) the evidence and arguments we relied upon provided reasonable explanations to the jury to account for and justify in fact and in law the actions and decisions taken.
7. The evidence and arguments we relied upon were accordingly capable of demonstrating that all that was reasonably practicable was in fact done, and thereby of leading to an acquittal.
8. Our case in short was that if mistakes or misunderstandings occurred, they were unforeseeable and/or unavoidable in all the circumstances including not least the enormous scale of the manhunt following the failed suicide bombings of 21/7, the hugely fast-moving pace of the investigation, and the rapidly-developing (and changing) intelligence picture.
9. Although the jury’s verdict is impenetrable as to precisely what they accepted and what they rejected of our defence, the judge made it plain at the conclusion of his summing-up that it was sufficient for the jury to make a finding against us on only one of the nineteen allegations in order to convict. It therefore does not follow from the fact of conviction that the jury accepted all of the prosecution’s allegations, or that we were found guilty of even one “catastrophic” failing as the prosecution labelled our shortcomings: a description which the judge did not adopt in his sentencing remarks.
10. The most positive point we can draw from the jury’s verdict on the facts is their express rider (in itself a rarity) that no culpability attached to Commander Cressida Dick (as she then was). This is the strongest indication that they accepted the account she gave of herself and colleagues during her almost four days in the witness box and found her to be entirely honest and professional in the decisions she made based on what she knew or had been told.
11. We knew and acknowledged that this was always going to be a difficult case in which to secure an acquittal. There was always a significant danger, as we think in fact came to pass, that the central issues would be obscured by too close a focus on the tragic outcome (which was not of itself a necessary element of the prosecution’s case), and that the jury would be unable to divest itself of hindsight and emotion fuelled in part by uninformed and adverse reporting before and during the trial.
12. In addition, we had to contend with the reverse burden of proof which (a) has never before been tested on facts anywhere near comparable to those of this case and (b) contrary to the conventional position in criminal cases placed the onus on the defendant to satisfy the jury that it had done all that was reasonably practicable to avoid an exposure to risk not only to Mr de Menezes but to the travelling public, to residents of the address connected to the suspect Osman, and to others.
13. Allied to that, the judge’s ruling (which we continue to regard as incorrect) that there was “risk”, on the morning of 22/7 and for the purposes of the Act, from the address in Tulse Hill even though in fact no suspect was present, put a further obstacle in the way of successful defence.
14. In summary, we feel that it was appropriate, right and reasonable for the MPS to mount a full contest to the charge and allegations which it faced. The MPS was accordingly entitled to seek the verdict of a jury.
Appeal against conviction
15. We understand that the MPS does not wish to delay further the holding of a full inquest into the tragic death of Mr de Menezes. Any appeal against conviction on the health and safety charge would almost certainly delay the inquest by many months until the appeal came to be heard. If the appeal were to succeed, and a retrial ordered, the further delay before the holding of the inquest would most likely be of the order of 18 months and quite possibly as much as two years.
16. We nonetheless think we should give our view shortly on the prospects for successful appeal.
17. The judge’s rulings against us on both the issue whether or not the Office of Commissioner conducts an “undertaking” for the purposes of section 3 of the Act, and on the issue of the meaning of “risk” under section 3 in the context of this case, were both in our view arguably wrong in law. An appeal against the ruling on “risk” has though rather better prospects of success than an appeal against the ruling on “undertaking”.
18. The trial judge brought his influence to bear on the jury throughout the trial by the manner and frequency of his interventions and most conspicuously in his summing-up. We have little doubt that he conveyed to the jury his own unshakeable assessment that we could and should have done a better job. This should not have occurred. It was a matter about which strong complaint was made to the judge in open court. We are not, however, at all optimistic that an appeal on this ground would succeed.
19. An appeal is a review, not a retrial. The only ground upon which the Court of Appeal could quash our conviction is if they were persuaded, under section 2 of the Criminal Appeal Act 1968, that the conviction is “unsafe”.
20. In this case, we feel that the key matters which led the jury to its verdict of guilty lie in its assessment of the standards it expected of the police service and its own interpretation of the events and decisions of 22/7. At root, the jury found itself unable to accept that the judgments, decisions and actions of a number of officers at many different levels of seniority on the morning of 22/7 were sufficient to establish that we had done all that was reasonably practicable to avoid the risk of injury to Mr De Menezes and/or others. The jury was entitled to reach that conclusion. It follows in our view that the verdict is not “unsafe” and was one the jury was entitled to return.
21. Thus, although we feel that there are arguable grounds for appeal against conviction, we do not consider on balance that they have good prospects of success. The strongest ground of appeal is against the ruling on “risk”. However, although if successful on that point the appeal would serve to clarify the law, it would not in our view be likely to result in the conviction being quashed.
Accordingly, in our view the MPS does not have substantial grounds on which to seek to overturn the verdict on appeal.
Ronald Thwaites QC
Ely Place Chambers
Keith Morton
1 Temple Gardens
Mark Scoggins
Fisher Scoggins LLP
21 st November 2007