Ahead of its 20th anniversary, a Disney docudrama has renewed public focus on Jean Charles de Menezes’ death. On 7th July 2005, suicide bombings on London transport killed 52 innocent people. Attempted attacks followed on 21 July. The next day, a chaotic police surveillance operation led to another innocent passenger, de Menezes, being shot dead by armed police. This article examines how the English law on self-defence and reasonable force enabled those responsible to avoid prosecution; and continues to do so to this day.
The shooting
Documents found at the failed 21 July bombings linked suspect Hussain Osman to a flat on Scotia Road. On the morning of the 22nd, police placed a surveillance van outside the flats. Commander Cressida Dick of the Met Police took charge, while firearms officers were briefed on using lethal force.[1]
At 9:33am, de Menezes was seen leaving the communal entrance. A surveillance officer said, ‘it would be worth someone taking a look at him.’ He was seen by several officers over the following half hour but never positively identified as Osman.
De Menezes boarded a bus. A surveillance officer said he was not sure if he was the suspect but noted his ‘Mongolian eyes’ - a statement later criticised as symptomatic of a racialised operation. Cressida Dick’s log stated: ‘Not identical male. Surveillance team to withdraw.’ However, the police remained in pursuit.
De Menezes got off at Brixton but, as the station was closed, he reboarded the bus. Surveillance officers, apparently unaware of the closure, interpreted this as evasive. The firearms team leader claimed to have heard that a positive ID had been made.
Commander Dick initially authorised the surveillance officers to stop de Menezes as he reached Stockwell. However, as the firearms team approached, she ordered them to stop him. She later insisted she had not ordered the use of lethal force.
CCTV evidence showed de Menezes walking into Stockwell station just after 10am, wearing a thin denim jacket. He picked up a copy of the Metro, tapped his Oyster card, and boarded a stationary train.
Moments later, firearms officers jumped the barriers and ran down to the platform. A surveillance officer identified de Menezes, shouting ‘it’s him’. As de Menezes stood up ‘Ivor’ restrained him. ‘Charlie 2’ then pointed his gun at de Menezes’ head and fired, as did ‘Charlie 12.’ They gave no verbal warning and de Menezes was not resisting arrest: a passenger described him looking calm even with the gun at his head.
The domestic legal process
Initial criticism of the police was muted. False media reports claimed de Menezes had carried a rucksack and vaulted the barriers, leading the police to make an honest mistake. The Met initially obstructed the Independent Police Complaints Commission (IPCC), while individual officers doctored evidence.
The CPS decided not to bring criminal charges against any individual officer. Instead, the Office of the Chief of Police of the Metropolis (OCPM) was charged under the Health and Safety Act at Work Act 1974 for failing to protect the public. In November 2007, an Old Bailey jury unanimously found the OCPM guilty, but added a rider to their verdict absolving Cressida Dick of responsibility – a highly unusual act, emblematic of a process that minimised personal responsibility.
At the 2008 Inquest, the Coroner barred a verdict of unlawful killing. However, the jury declined to find a lawful killing, returning an open verdict. In a series of 13 questions put to them by the Coroner, they rejected the police’s account of the killing. Cressida Dick’s testimony suggested that the police had learned nothing: ‘If you ask me whether I think anybody did anything wrong or unreasonable on the operation, I don't think they did.’
Da Silva v United Kingdom
Given the domestic failure to provide effective justice, De Menezes’ cousin Patricia Armani da Silva lodged a complaint with the European Court of Human Rights. She argued that the CPS decision breached Article 2 which requires investigations capable of identifying and punishing those responsible for state killings. The CPS’ Code required conviction to be ‘more likely than not’ to prosecute. Da Silva argued this threshold was too high.
English self-defence laws
Under common law a person who is attacked may defend themselves, so far as ‘reasonably necessary’: Palmer v R [1971]. They must honestly believe that the use of force is necessary; and that the force used is reasonable in the circumstances. However, this belief need not be reasonable: R v Gladstone Williams [1984]. Instead, the jury must 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.
‘Charlie 2’ and ‘Charlie 12’ claimed, even though de Menezes had already been successfully restrained by another officer, that they believed he was about to detonate a suicide vest and that they shot him in accordance with this belief. In Palmer Lord Morris stated that a person will not have to weigh up the ‘niceties’ of defensive action, giving further cover to the use of disproportionate force.
The EHRC, a third party intervener, argued that the law shielded police killers from justice and that Stockwell was not a one-off. Between 1990 and 2014 there were fifty-five deaths caused by police shootings in England and Wales, yet no criminal conviction of an armed officer, even in cases where an inquest jury recorded a verdict of unlawful killing. Little has changed and as of 2025, the figure is 85 deaths.
The court’s decision
Controversially, Da Silva’s position was rejected by 13 votes to 4. The legal scholar Jan Hessbreuge noted the majorities ‘strained reasoning’ in ‘watering down’ the tests of McCann v United Kingdom to justify English law. In that earlier case, lethal force used by state agents in self-defence or defence of others was required to flow from ‘an honest mistaken belief’ based on objective ‘good reasons.’ In Da Silva the majority saw reasonableness not ‘as a separate requirement’ but rather as merely ‘a relevant factor’ in determining whether a belief was honestly and genuinely held.
Judges Karakaş, Wojtyczek and Dedov dissented, arguing that honest belief should only be a defence when objectively justifiable in the circumstances. They also criticised the collusive British police practice of making statements together: implying ‘a vacuum devoid of accountability.’ The CPS Code was ‘more stringent’ than in other ECHR states. As a result, certain acts involving excessive force used by police were covered by a ‘de facto immunity from prosecution’, breaching the obligations of Article 2.
Judge Lopez Guerra focussed on the fact ‘that no individual responsibility was derived from […] very serious deficiencies in all aspects of the police operation’: ‘the lack of such an investigation, with all the appropriate guarantees of adversarial and public proceedings, effectively granted immunity’ to those involved.
Conclusion
The lawyer and writer Clemency Wang has described how the lack of a requirement for ‘honest’ beliefs to be ‘reasonable’ has allowed cases of police brutality to go unprosecuted. This English common law position was placed on a statutory footing in the Criminal Justice and Immigration Act 2008, and the case of Da Silva was a missed opportunity to challenge it. This tragedy for the de Menezes family leaves others more exposed to state violence. There is an urgent need to update English self-defence laws to include a more robust objective element to the ‘honest’ belief test. Perhaps, twenty years on, the death of Jean Charles de Menezes will finally lead to reform.
[1] The facts set out in this article were established in the IPCC’s ‘Stockwell One’ report and the Coroner’s inquest. Police officers granted anonymity are referred to by code names.
By Thomas Dixon Humphreys
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