Armani Da Silva v United Kingdom (App. No. 5878/08): European Court of Human Rights (Grand Chamber): 30 March 2016
Right to life – State’s obligation to investigate death in circumstances where state arguably in breach of substantive obligation under convention right to life – Deceased being shot by police officers following terror attacks and terror attempts in London
Following four suicide bombers’ detonation of explosions on the London transport network on 7 July 2005 and a failed attempt two weeks later, a Brazilian national (the deceased) was shot by two special firearms officers (the SFOs) several times and killed.
Within days of the shooting, it had become apparent that the deceased had not been involved in the attempted terror attacks. In July 2006, the director of public prosecutions decided to prosecute the Office of the Commissioner of the Police of the Metropolis (the OCPM), not in his individual capacity, but as an employer of police officers, for failing to provide for the health, safety and welfare of the deceased.
No individual was to be prosecuted in relation to the death, as it could not be proved that the SFOs had not acted in genuine self-defence, such that they could not be charged with murder or any other offence of assault, including manslaughter. In October, the applicant cousin of the deceased’s application for judicial review of the decision not to prosecute any individual police officer for criminal offences, which she argued was incompatible with article 2 of the European Convention on Human Rights (article 2), was dismissed and leave to appeal to the House of Lords was refused.
In May 2007, the Independent Police Complaints Commission (the IPCC) decided that no disciplinary action should be pursued against any of the 11 frontline and surveillance officers involved in the operation. In November, a jury returned a verdict, finding the OCPM guilty of failing to provide for the health, safety and welfare of the deceased. It also attached a rider to its verdict that a commander bore no personal culpability for the impugned events. After the trial, the IPCC decided not to issue a recommendation for the senior officers to face disciplinary proceedings.
In November 2008, the coroner declined to leave to the jury the option of returning a verdict of unlawful killing in relation to the actions of the SFOs and the senior officers. Leave for judicial review of that decision was refused. In December, the jury returned an open verdict. In April 2009, the Director of Public Prosecutions confirmed that there remained insufficient evidence to prosecute any individual. In October, the IPCC rejected the deceased’s family’s request to review its decision not to initiate disciplinary proceedings.
A civil action in damages was brought by the deceased’s family against the Metropolitan Police Commissioner, which was settled by way of mediation. The applicant complained that the decision not to prosecute any individuals in respect of her cousin’s death was in breach of the procedural aspect of article 2.
The applicant contended that: (i) the investigation into the deceased’s death fell short of the standard required by article 2 because the authorities had been precluded from considering the reasonableness of the SFOs’ belief that the use of force had been necessary; and (ii) the prosecutorial system in England and Wales had prevented those responsible for the shooting from being held accountable and, as a consequence, the procedural requirement under article 2 had not been satisfied.
The application would be dismissed.
(1) The court’s case law provided that the principal question to be addressed was whether a person had an honest and genuine belief that the use of force had been necessary. In addressing that question, consideration had to be given to whether the belief had been subjectively reasonable, having full regard to the circumstances that had pertained at the relevant time. If the belief had not been subjectively reasonable, namely, it had not been based on subjective good reasons, it was likely that there would be difficulty accepting that it had been honestly and genuinely held.
The focus of the test for self-defence in England and Wales was on whether there had existed an honest and genuine belief that the use of force had been necessary. The subjective reasonableness of that belief, or the existence of subjective good reasons for it, was principally relevant to the question of whether it had, in fact, been honestly and genuinely held. Once that question had been addressed, the domestic authorities had to ask whether the force used had been absolutely necessary.
That question was essentially one of proportionality, which required the authorities to again address the question of reasonableness, namely, whether the degree of force used had been reasonable, having regard to what the person had honestly and genuinely believed.
So formulated, it could not be said that the test applied in England and Wales was significantly different from the standard applied by the court. Bearing in mind that the court had previously declined to find fault with a domestic legal framework purely on account of a difference in wording which could be overcome by the interpretation of the domestic courts, it could not be said that the definition of self-defence in England and Wales fell short of the standard required by article 2 (see , ,  of the judgment).
It could not be said that the domestic authorities had failed to consider, in a manner compatible with the requirements of art 2, whether the use of force by the SFOs had been justified in the circumstances (see  of the judgment).
McCann v United Kingdom (Application 18984/91)  ECHR 18984/91 considered.
(2) The investigative obligation under article 2 was one of means and not result. It required that the investigation was capable of leading to a determination of whether the force used had or had not been justified in the circumstances, and of identifying and, if appropriate, punishing those responsible. It followed that article 2 did not entail the right to have third parties prosecuted or convicted for a criminal offence.
Rather, the task, having regard to the proceedings as a whole, was to review whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by article 2 (see  of the judgment).
There was nothing to suggest that, in the present case, the domestic authorities had failed to secure the relevant physical or forensic evidence, or to seek out relevant witnesses or relevant information. Further, the secured evidence had been thoroughly analysed and assessed by the IPCC, by the Crown Prosecution Service (CPS), by a judge and jury during the criminal trial of the OCPM, and by a coroner and jury during the inquest. Therefore, the sole issue was whether the decision not to prosecute individual officers, and to prosecute only the OCPM in its capacity as an employer of police officers, could itself constitute a procedural breach of article 2.
The applicant’s complaints concerning the role and organisation of the CPS had not disclosed any institutional deficiencies which had prevented the authorities from adequately securing the accountability of those responsible for the deceased’s death. The threshold evidential test applied in England and Wales had not constituted an institutional deficiency or failing in the prosecutorial system which had precluded those responsible for the deceased’s death having been held accountable.
The scope of judicial review of prosecutorial decisions in England and Wales could not be described as an institutional deficiency which had impacted upon the ability of the domestic authorities to ensure that those responsible for the deceased’s death had been held to account.
Accordingly, having regard to the criminal proceedings as a whole, the applicant had not demonstrated that there had existed any institutional deficiencies in the criminal justice or prosecutorial system which had given rise, or had been capable of having given rise, to a procedural breach of article 2 (see , , , , ,  of the judgment).
No violation of the procedural aspect of article 2 had been established (see  of the judgment).
Brecknell v United Kingdom (Applications 32457/04, 34575/04, 34622/04, 34640/04, 34651/04)  All ER (D) 416 (Nov) considered; Kolevi v Bulgaria (App No 1108/02)  ECHR 1108/02 considered.