21
Jean Charles de Menezes
He did not jump the ticket barrier; he was not wearing a bulky jacket; he did not fail to obey a command; he did not try to escape; he was not an illegal immigrant; his behaviour could not be attributed to cocaine; but, principally, he was not a terrorist. He was an innocent Brazilian electrician, trying to make his way in the world, late for work. He had a warm regard for the generosity of the British people, and above all there was abundant evidence that he had a genuine respect for the British police – until, that is, he was shot dead by two of them at point-blank range with seven hollow-tipped bullets, causing maximum internal head injuries.
His name was Jean Charles de Menezes. He was twenty-seven. This information was contained on identification documents in his pockets. They were available in a wallet that had been removed from his body within half an hour of the shooting and placed on a seat next to his body in the Underground train carriage.
It took over three years to dispel the myths surrounding this case which had been perpetrated in the media, some of them by the police themselves. On the day of the shooting Sir Ian Blair, the Metropolitan Police Commissioner, announced to the world in a press conference that an unnamed man had been shot during a terrorist-related investigation because he had failed to obey a challenge by police.
Jean Charles had been brought up just outside the small town of Gonzaga in a remote mountainous area of Brazil. He had always displayed an adventurous spirit, but unlike many of his contemporaries who migrated to the USA to seek new opportunities, he preferred a vibrant, eclectic environment in London. He persuaded his first cousin Vivian Menezes Figueiredo to join him, and they left Brazil together in spring 2005, arriving in London on 23 April. They went to stay with another cousin, Patricia da Silva Armani, who was living in a flat in a small block at the end of a culde-sac in Scotia Road in Tulse Hill, south London.
Jean Charles took casual work until he found what he wanted, a job with his friend Gesio, doing all the electrical work on a property in north London. Vivian spent the evening of Wednesday 20 July 2005 with Jean, when he expressed great hope and happiness for the future. Although she didn’t realise it, it was the last time she was to see him.
On Thursday 21 July, between 12.36 and 13.11, there were four attempted suicide bombings in London. Three were at Underground stations (the Oval, Warren Street and Shepherds Bush) and the fourth was on a bus on Hackney Road. A fifth device was recovered the next day on common ground at Little Wormwood Scrubs. No one was injured, unlike the suicide bombings in the capital two weeks earlier on 7 July, which also took place at three Underground stations (Aldgate, King’s Cross and Edgware Road) and on a bus in Tavistock Square: fifty-six people were killed and 977 injured.
No one should underestimate the traumatic effect these terrible events had on everyone, especially the travelling public in London: without question a sense of fear and trepidation filled both mind and body. Unlike the Blitz and the Provisional IRA campaigns in the past, there had been no warnings. Unsuspecting innocent citizens had been blown to pieces. No one was untouched by events. On the morning of 7 July I had travelled by public transport to Gatwick airport in order to catch a flight to Holland, where I was doing a case at The Hague. All my children (now adult) lived and worked in London and all used public transport to get around; Jonathan, Anna, Leo and Kieran would have been going to work in Oxford Circus, Canary Wharf, Holborn and Clerkenwell; Freddy was using the overground train to reach his school.
When I arrived at the house where I was staying in The Hague the television news had been on continuously for hours. In a sense, the further away you are from events like these, the worse it is. Telephone lines are blocked, mobile phones are not being answered, and it takes hours of anxious enquiry and waiting until the final picture emerges. During that time you can be sure of nothing; you can’t assume anything. In Holland the time was one hour in advance of London, and the various commitments I had that day in a war-crimes trial had to be honoured. I have often been handed dramatic messages during cross-examination and speeches (births, deaths and marriages among them), but this was on quite a different scale, and I remember being totally distracted all day.
Thankfully, the family was safe, and like the rest of London showed customary resilience. Neither they nor the injured and their families were to be deterred from the monumental task of piecing their lives back together and continuing their daily business, even though it would never be quite the same again, and within hours people were braving the public-transport system.
Vivian, Patricia and Jean Charles were no different. Hesitant but determined, they carried on, with Jean Charles telling Vivian that ‘We need to pray and hope for the best.’
On 22 July, the morning after the failed bombings, Vivian, who was working as a cleaner in Surbiton, left her block of flats before Jean Charles, walking down the stairs and out of the communal front door. The flat above hers in the same block – number 21 – was being used by two people, Abdi Omar and Hussain Osman. It was empty that day, but neither this nor the identity of the occupants was known to Vivian.
She crossed the end of the cul-de-sac, close to a parked black Nissan Primera (P579 UBB), which had been insured by Omar but was registered to another address in west London, 61A Portnall Road, near the Harrow Road. As she walked the short distance further along Scotia Road she was oblivious to an innocuous, unmarked van parked up by a lamp post on the opposite side. Vivian was being filmed. Inside the van was a surveillance officer who, for reasons of security, was only ever known by the pseudonyms Frank, Tango 10 or call-sign 50. He was not a policeman, but a soldier on attachment to an undercover Special Branch (SO12) team working under the code colour Red. The van was stationary and he had been on his own in this position since about 6.30 that morning: his brief was to keep a lookout for anyone coming out of number 21, especially anyone resembling either Omar (codenamed Regal Wave) or Osman (codenamed Nettle Tip). They were both linked to the same block as Vivian, and were considered by senior command officers to bear a strong likeness to CCTV images of the bombers at Warren Street and Shepherds Bush stations the day before.
It was immediately obvious to anyone on the ground – although not for some hours, it appears, to those back in the control room at New Scotland Yard – that Frank could not see the front door of flat number 21. All he could therefore do was assess whether someone coming from the main door of the nine-flat block matched the images he had of the two suspects. All the surveillance officers thought the one of Osman was particularly poor, while the command officers thought the opposite. It had been copied from a gym-membership card and showed Osman’s head and shoulders only. The surveillance officers had had only a short time to familiarise themselves with the image; not all of them even took a copy with them. The reason? Underlying SO12 policy was a worry that highly trained and experienced officers might lose or drop the photograph and compromise the whole operation.
Five or six occupants left the block that morning between 7.45 and 8.30 and, like Vivian, all of them could easily be excluded because of their sex, age or colour.
At 9.33 a.m. Jean Charles emerged. It was a fine and dry summer’s day with clear visibility. He was wearing a denim jacket, jeans and a dark T-shirt. He wasn’t carrying anything. No bag. No rucksack. He walked calmly by the van on the opposite side. He was not filmed.
Frank, who by now had been on duty for over three hours, had been caught short and was relieving himself in a bottle. The camera was not running continuously in order to conserve both film and battery. He only had one hand free, but he couldn’t use this to switch on the camera because he was having to use a handheld airwave radio to transmit messages. This in turn was because the main Cougar headset radio system had broken down and could only receive messages. If this were not so serious, you might imagine it had been lifted straight out of a scene from the Keystone Cops.
Initially Frank thought Jean Charles was a white European, recorded in amorphous police-speak as ‘IC1 [Identity Code One], male’. On that basis he concluded that this man could be ignored like the others – until, however, Jean Charles passed close to the van. At this point Frank had second thoughts and uttered the fatal words: ‘Worth somebody else having a look.’
By this time there were two squads of undercover officers in the area: the original Red team and now the Grey team, numbering approximately twenty in all. None of them had placed themselves in positions where they could obtain anything more than a fleeting glimpse during Jean Charles’s six-minute walk to the nearest number 2 bus stop on Tulse Hill, and the majority did not see Jean Charles at all during this phase. There were, however, six surveillance officers, in cars and on foot, in the short stretch of Upper Tulse Hill and the corner of Tulse Hill where the bus stop was situated. They could not positively discount Jean Charles, nor could they positively identify him as a suspect. For the rest of his journey (only half an hour) that is how it remained. No surveillance officer reported to control that he was, or was not, the suspect Nettle Tip.
Four of the six officers were armed. In this they were not alone. Unbeknown to them and to Jean Charles, this same short stretch of road contained at least another six armed officers in unmarked cars, part of the specialist firearms unit CO19. Three hours late (not their fault), they had come as back-up for the surveillance teams should an armed intervention be required, and the first two cars had arrived minutes before Jean Charles walked past on the pavement opposite the Territorial Army Centre they were intending to use as a forward holding base.
This was a critical moment in the whole operation. The one thing missing was an order to stop Jean Charles boarding the public-transport system: pretty important if he had been a suicide bomber, given what had happened over the previous two weeks.
Jean Charles got on the number 2 bus bound for Brixton. Ivor (codename), a surveillance officer, did likewise. They both sat downstairs and the CCTV cameras on the bus recorded clips of Jean Charles behaving in a perfectly normal way. No bulky clothing; nothing untoward; still not carrying anything.
About five minutes later (9.45 a.m.) the bus had reached Brixton, where Jean Charles got off, intending to continue his journey northwards by Tube. Partly because of the previous day’s events the station was closed, so he contacted his employer by mobile phone and reboarded the same number 2 bus. Ivor, who had followed him off the bus, sensibly decided not to draw attention by getting back on with Jean Charles.
The bus was now heading towards Stockwell Underground station, and Jean Charles hoped this one would not be closed. He sat upstairs on the top deck. Along the route another officer called Laurence (codename) took over ‘the follow’ on the bus. Nothing occurred until Jean Charles got up and started down the stairs because he saw that the Tube station was open. Laurence immediately transmitted this information.
While before this the police may not have realised exactly where Jean Charles would get off, they certainly knew now. In fact the day before some of the bombers had entered the Underground system at Stockwell. So once again, if he were a suicide bomber, it was imperative that he should be stopped before he entered the station, or at the very latest before he went down the escalators to the platforms. What was missing was an effective order to do so.
As Jean Charles left the bus near the National Westminster bank, some armed surveillance officers were already on the pavement before him. One of them was Ivor and he was alert to the fact that surveillance is sometimes best kept covert by staying ahead of the target. Anticipating, rightly, that Jean’s destination was the Underground station, he went in first and positioned himself in the doorway of a chemist shop on the right-hand side as you enter. The time was now around 10 a.m., and the walk from the bus stop to the station takes no more than two or three minutes.
Yet again, the surveillance officers were unaware that their armed back-up had also either just arrived at the junction outside the station or were in a line of traffic just beyond the traffic lights on Stockwell Road, opposite the station entrance. The lead car in the line contained one of the officers (C2), who eventually shot Jean Charles on the train, and another contained a team leader codenamed Ralph. Unbeknown to him and to Ivor, there was yet another car with armed CO19 officers, one of whom was codenamed C12, who also shot Jean Charles. This car had taken an entirely different route from the main convoy and almost certainly was the first CO19 vehicle to reach the junction, having driven straight up Clapham Road. There were therefore a minimum of nine armed officers – three surveillance and six specialist firearms – available to effect an intervention. In contrast to what the surveillance officers claim they had reported, the firearms officers firmly believed by this point that they had heard over the radio Jean Charles being positively identified with phrases like ‘It’s him’ or ‘It’s definitely him’ or ‘It’s our man’, and naturally they thought this meant he was a suicide bomber from the day before. If these words were spoken, it has never been established who said them.
Ivor watched Jean Charles at close quarters as he passed by on the station concourse to collect a Metro newspaper from the stand nearby, and assessed, rightly, that he himself was in a prime position to detain the subject. There was another armed surveillance officer a few feet away to help him, and Ivor offered by radio to do so. He waited and waited as precious seconds ticked away. What was missing, for the third time, was an effective order.
All Jean Charles’s movements from the moment he left the bus, then walked along the pavement and through the station concourse to the escalators were monitored on a variety of CCTV cameras. His behaviour was perfectly normal.
No effective order was given until Jean Charles was already on the escalator descending deep into the station. It was too late. His fate (although not according to C12 and C2) was already sealed.
It was an armed officer who jumped over the ticket barrier and was mistaken for a terrorist. C12 and C2 rushed down the escalator, weapons loaded and ready to fire. They could no longer be contacted because none of their radios worked underground. They were in plain clothes, not readily identifiable as police officers, and moved swiftly along the platform, maintaining their covert approach by keeping their guns out of sight until they reached the open doors of the carriage.
Ivor was already on the train, oblivious to their impending arrival. He had assumed that he should continue to follow the target until such time as his identity could either be confirmed as a suspect or discounted. For example, if Jean Charles used a cash machine or a mobile phone with traceable numbers, this might help; but Ivor thought this could take some considerable time and in the end might not happen at all. Ivor had sat down in the same row of seats as Jean Charles, facing the platform, but a few places to his left.
Ivor recognised that the men in civilian clothing were from CO19 and assumed, this time wrongly, that they must know something he didn’t – namely that the target was in fact a suicide bomber about to detonate a bomb. He got up and crossed the carriage in front of Jean Charles to the doors of the train, stuck his foot out to prevent them closing and the train from leaving, and pointed directly at Jean Charles, shouting, ‘That’s him!’ – which merely reinforced what the firearms officers had in mind. None of them had actually seen Jean Charles at any stage during the pursuit.
Ivor turned to face Jean Charles who was a matter of only a few feet away from him and who, almost certainly in response to being pointed at, had got up from his seat. Ivor grabbed him in a bear hug, restraining both his arms and pinning him back in the seat. It took no more than five to ten seconds for the firearms officers to enter the carriage, lean over Ivor and discharge their weapons nine times.
Another firearms officer who approached the scene walking down the inside of the carriage mistook Ivor for the suspect. Ivor was dressed in similar denim clothing to Jean Charles, and had a similar olive complexion. In addition he had a rucksack, which he placed on the floor by the doors to the train. Ivor was dragged away and pinned to the carriage floor with a gun to his head. Once subdued, he was bundled off the train onto the platform and put up against the wall, until he was able to confirm his identity as an undercover police officer.
The accounts of what happened in the carriage, especially by C12 and C2, were seriously at odds with those of the civilian witnesses who were sitting nearby. Crucially, C12 claimed that as he entered the carriage he shouted ‘Armed police!’, raised his right arm to shoulder level and pointed his handgun straight at the face of Jean Charles. In spite of this, they both asserted that Jean Charles advanced threateningly towards them and, using the same terminology in their original statements, both officers thought Jean Charles’s jacket was ‘bulky’ – a feature they are trained to consider might conceal a bomb. When, at the subsequent inquest, I confronted them with the CCTV photographic evidence and with the jacket itself, they had to concede that they were wrong.
No civilian witness saw the sequence that the officers described, and they were all adamant that there was no shout of ‘Armed police!’ Interestingly, no other firearms or surveillance officer saw such a sequence of events with C12’s gun out in front at arm’s length, although some claimed to have heard the words ‘Armed police’ from the direction of the platform. C2, who was following C12 onto the train, did not see or hear what C12 said or did at that point.
Allowances must be made for selective vision, perceptual distortion, intermittent recollection and the pressure of the occasion. The divergence, however, with the passengers is too great to be explained in this way.
There were between seventeen and nineteen passengers in the same carriage as Jean Charles, most of whom had got on the train a few stops before Stockwell. A number, like him, were running late and were wary about using the Tube. Some scrutinised who got on, what they looked like, what they were carrying and so forth – all very natural reactions at a time of tangible tension. It seemed that the train had been stuck in the station for an abnormally long time. The nervous and impatient disembarked to try a different route. Others remained and tried to preoccupy themselves with books and magazines. An unfortunate few had ringside seats. What happened next was unimaginable carnage, almost as bad as the bombs themselves. Only one person was killed, but numerous others, their families and friends have had their lives marked for ever, just like those affected by the atrocities of 7 July.
Sitting right opposite Jean Charles, with their backs to the platform, were a young couple, Ralph Livock and Rachel Wilson. Mr Livock remembered three men with pistols and another with a weapon that looked like a rifle, and at the inquest was asked questions1 by Nicholas Hilliard, QC, on behalf of the coroner:
Question, NICHOLAS HILLIARD: Did you have any idea who they were?
Answer, RALPH LIVOCK: Absolutely not. They had no identifying . . . well, on the television you see people with caps or jackets. There was nothing like that. They looked like . . . one of my initial thoughts was it was all a game and they were a group of lads who were just having a laugh, in a very bad taste laugh, but just having a game on the Tube because they were just dressed in jeans and T-shirts, but with firearms.
Q. Did you hear anything said about police?
A. No, certainly not. And I remember that specifically, because one of the conversations that Rachel and I had afterwards was that immediately afterwards we had no idea whether these were police, whether they were terrorists, whether they were somebody else, we just . . . we had no idea.
Ms Wilson was asked similar questions:2
Question, NICHOLAS HILLIARD: Then several men have come on to the train, do I have that right?
Answer, RACHEL WILSON: Yes.
Q. Can you say how many?
A. Several, three, four, five, that sort of number.
Q. How were they dressed?
A. Casually, not in any uniform.
Q. Did you have any idea who they were?
A. None whatsoever.
Q. Was anything said at any time during the incident to give you a clue as to who they were?
A. No, and I know this because, similar to Ralph’s statement, first I thought they were messing around, then I thought they were terrorists and it was only when I left the carriage and the . . . somebody moved me gently out of the way that I figured they must have been good guys, and apart from that I just didn’t know who they were.
Q. Specifically, did you hear anybody shout ‘Armed police’?
A. If I had heard that, I would have thought they were police, so no.
On the same side of the carriage as Jean Charles, a few seats to his left, sat Anna Dunwoodie, and when Ivor first got on the train he sat down immediately to her left. She was asked questions3 by Jonathan Hough on behalf of the coroner:
Answer, ANNA DUNWOODIE: It’s a really odd thing to try to describe, because my memory is that right in the carriage where we were actually we were all very still, I think maybe because it was so unexpected, and me and the people around me, my memory is that we all sat quite still and were quiet. Further away, where I guess people had more of a chance to react, I could feel that there were people getting out of their seats further along the carriage and again, you know, a sense of panic from the passengers. But I also felt that there was a sense of panic from the men in the doorway and a sense that maybe they weren’t quite sure what was going to happen next or what they were going to do next and I found that very frightening.
Question, JONATHAN HOUGH: You say this in your statement: ‘I thought that the other men outside the carriage were the man’s accomplices [the man who pointed] but that he was the main threat.’
A. I did think that at the time, yes.
Q. When you first saw these various men, what did you think they were about?
A. I thought . . . I mean maybe what was frightening was that I didn’t know what they were about . . . [continues]
Q. As you very fairly say, your memory is one of snapshots?
A. My memory is one of snapshots, that’s true. I would like to say, though, that the thing about whether or not I heard ‘police’, I am very, very clear on because I was . . . I absolutely had no idea who they were and I was looking for a clue as to who they might be, and if anybody had said ‘police’, I would have latched on to that, I think.
The coroner, Sir Michael Wright, often interceded and asked his own questions of witnesses. He asked Anna Dunwoodie:
Question, SIR MICHAEL WRIGHT: What was it you saw or sensed that made you think that they [the police] were in a state of panic? I know it’s a difficult question, so do your best.
Answer, ANNA DUNWOODIE: I think that . . . partly I think it was because the man who I now know as the surveillance officer [Ivor] really seemed to me to be frightened.
Q. Yes?
A. Or hyped up, maybe, if that’s a way to describe it. And when he was calling the other men in, they seemed . . . you know when people are full of adrenaline and they move quickly and their movements are a bit jerky, and things just felt like they were a bit out of control, that’s what it felt like. I think in a small place like a carriage, you pick up on that kind of thing quickly.
Later on Anna Dunwoodie was asked:
Q. You also say that you could see the expression on the man’s face who actually had the gun pointed at his neck, that’s Mr de Menezes; can you remember anything about that expression now?
A. I remember that his eyes were closed and I remember that he had . . . you know, it’s a hard thing to try to explain, but his eyes were closed and he looked almost calm, which again I hesitate to say that, but . . . I guess he had a gun pressed, and there wasn’t very much he could do about it.4
From the moment I first heard about these tragic events I was eager to help in whatever way I could, as it seemed to me there were major issues of principle and organisation to address at all levels of the police. I have spent my working life in contact with the police, both in and out of court, and I have attended their conferences, seminars and meetings at Hendon, Bramshill and New Scotland Yard. I’ve done so in the firm belief that it is always possible to contribute towards transparency, accountability and respect for human rights.
Throughout the rest of 2005 there were a number of campaign and support meetings organised on behalf of the de Menezes family. I had strong feelings about how they were being treated – the delay, the misinformation and the lies – so I went along to a couple of them to see if I could lend a legal perspective. In particular I wished to pass on my experiences with other families, as President of the National Civil Rights Movement (NCRM), since there is always a risk that the hard lessons of the past are half-forgotten or wasted. Families in distress need to know what their options are, and most importantly which bland assurances dished out by the authorities need to be ignored.
As always, being instructed to represent the family was largely a matter of chance. They had engaged a firm of solicitors, Birnbergs, with whom I had worked closely on many occasions. There were three wise women in the firm who had matchless expertise: Harriet Wistrich, Marcia Stewart and Gareth Peirce. I became involved in 2006 shortly after the Director of Public Prosecutions (DPP) had decided that no individual officer would be prosecuted for a criminal offence, but that instead the Office of the Commissioner of the Metropolitan Police would stand trial in a notional sense for an offence in contravention of Health and Safety legislation. Another barrister, Henrietta Hill, a super-efficient fast thinker, was already on board for the family and was to be my junior.
Our first job was to challenge that decision. Usually the clients are based in the UK and can easily be consulted, but in this instance Jean Charles’s mother Maria, his father Matosinhos and his brother Giovani were all in Brazil, and contact had to be made through a Portuguese interpreter, Agnes Nunes, who was proficient, empathetic and patient. She remained with the case throughout all its stages and without her, agreements, decisions and understanding would have been unattainable. Fortunately there were other members of the family – cousins and a close friend in London – who stayed on in the UK despite immigration and employment complications: Vivian, Patricia, Alessandro Pereira and Erionaldo da Silva. They were unstinting in their efforts to keep the flame of hope alight, which was not easy through the years of waiting, disappointment and disenchantment with a system of justice which rarely provided any satisfaction. Their quest was given strength every step of the way by two ardent campaigners, Yasmin Khan and Asad Rehman, who had put the family in touch with Birnbergs in the first place.
Like most relatives and friends of victims at an inquest, they had not been present when the death occurred, and their beliefs about what must have happened are born out of their intimate relationship with and understanding of the dead person. The clear and collective message being conveyed by the de Menezes family had two principal themes. First, Jean Charles’s mother was convinced that if he had been challenged by armed police in a controlled manner soon after he had left home and before he mounted the number 2 bus, or even when he had left the bus outside Stockwell Underground station, he would have cooperated fully and still been alive. Second, she felt that Jean Charles would never have advanced threateningly towards armed police and that he had been shot mercilessly by firearms officers.
Challenging a decision not to prosecute any officer for murder or manslaughter is done by way of judicial review. You have to be able to demonstrate to the reviewing judges in the Divisional or Administrative Court that the decision is unreasonable, in the sense that the Director (DPP) has omitted to take into account something he should, or that he has taken into account something he shouldn’t. This is termed the Wednesbury* Unreasonableness Test. Persuading the judges that they might have taken a different decision if they had been Director is not enough.
Another difficulty is that you may not have all the necessary evidential material. In this instance it was in the possession of the Director himself for the purposes of the Health and Safety prosecution, and it was with the Independent Police Complaints Commission (IPCC)5 for the purposes of their original investigation. None of it had been made public, and the IPCC report was only made available to the family on a very restricted basis, with crucial parts of it redacted – that is, blanked out, usually with a black felt-tipped pen, so that the words cannot be read – to begin with. We did not have the statements of any of the civilian witnesses from the train; we did not have the prepared statements made by CO19 officers in conjunction with each other;6 plus we knew that the shooters had refused to answer any questions when interviewed by the IPCC. The standard of proof required for murder or manslaughter, whether in an inquest or a criminal trial, is the same. It is very high, ‘beyond reasonable doubt’: a jury must be sure. Our submissions were rejected, although the force of the argument was acknowledged to be relevant to the Health and Safety prosecution, which was set down for October 2007. Meanwhile nothing could be said by the family in public because of the sub judice rule and the risk of prejudice to that trial.
We made strenuous attempts to get the inquest opened and under way, even though there was a trial in prospect, because the trial was expressly going to deal with a separate (albeit connected) issue – whether the health and safety of the public at large had been put at risk by the decisions and actions cumulatively taken by the police officers involved. There was no legal requirement to show that this in particular had caused the death of Jean Charles. In due course the jury in the Health and Safety trial were specifically directed to exclude this aspect as a matter for the inquest.
The delay for the family in Brazil was unbearable, and for those in the UK intolerable. We were also concerned that there was no guarantee at the end of the trial that the inquest would necessarily be resumed. There were rumours that some Interested Persons7 might oppose such resumption, on the basis that most of the factual matters had already been canvassed. Our attempts on this score also failed. We all had to wait until the end of the trial in November 2007 in the guarded hope that we would not face further disappointment.
During 2006 the two most senior officers involved in the case, Commanders John McDowell and Cressida Dick, were both promoted to the rank of Deputy Assistant Commissioner (DAC). You might have thought that consideration for a move of this kind could have been deferred until the end of the inquest. The family was not just dismayed, but unutterably shocked.
The relatives attended the trial of the Office of the Commissioner at the Old Bailey – sitting alongside a dock with no one in it, a somewhat bizarre and unreal occurrence. Many key witnesses were not called (for example, the shooters and the passengers), because of course they were not directly relevant to what was being litigated during the trial. Nor did Sir Ian Blair, the Commissioner, give evidence. A combination of nineteen different failures by different police officers on 22 July 2005 was alleged by the prosecution. They could be aggregated in a way which was not legally possible when examining the individual acts and omissions of particular officers, for example in relation to an allegation of manslaughter.
The Office of the Commissioner was convicted. It was not possible to tell from the verdict which of the nineteen failures the jury found proved to their satisfaction. How the Office felt about this we shall never know. What we do know is that it was fined, and effectively the public footed the bill. The person who filled the office continued to do so. He did not seem too perturbed, and he did not finally step down until two weeks before the end of the inquest in December 2008. The trial judge, Mr Justice Henriques, observed during his sentencing remarks that the Office of the Commissioner had made no concessions with regard to any of the nineteen allegations. What the family noted with dismay was that part of the defence at the trial had involved an attack upon Jean Charles, as if it were his own behaviour that had resulted in his death. A more muted form of this was to resurface during the inquest.
It is not difficult to imagine the distress and anguish suffered by the family through these tortuous months. By the beginning of 2008 it was agreed that there should be an inquest, but the place and date had not been fixed.
Southwark Coroner’s Court in Tennis Street, Bermondsey, is quaint and friendly, but incommodious. It was really not built to accommodate more than one of everything: one coroner, one clerk, one lawyer, one member of the public and one member of the press – hardly enough room for the numbers anticipated in this case. There is a historic but silly rule (which it is intended will be changed in the Coroners Bill 2009) whereby inquests have to be heard within the jurisdiction of the coroner dealing with the body. Nowadays this is quite unnecessary, and it is about time that fully resourced court premises are available in all the major conurbations, financed by central government. The coroner’s office and Southwark Council had an uphill struggle to find somewhere big enough and affordable, given that the council would have to find the money from its own budget.
Quite exceptionally, the most unusual and delightful venue was provided at the Oval cricket ground – but the inquest could not commence until South Africa, Sri Lanka and India had finished their business with England, which involved another unavoidable delay until the end of September. The main hearing room was in the John Major Suite: I don’t know whether he minded, but it was thought politically correct to remove his portrait in order to maintain an atmosphere of impartiality. The corridors leading to the room displayed a series of sepia photographs and lithographs depicting the history of the ground from village cricket to commercial bonanza, one of the most fascinating of which was an image taken during the Second World War, when everything had been cleared in order to convert the ground into a prisoner-of-war camp.
Each group of lawyers had its own conference room, which during the cricket season would have been an expensive box from which to view the game, and at one end of the room was a pair of sliding glass doors, which led onto the terrace overlooking the pitch. The room we were allocated was quite high and had a panoramic view across south London, and I enjoyed arriving early to witness the September sun pouring in through the windows. Down below they had begun the laborious task of digging up the pitch in order to lay new turf for next season, which reminded me of some protesters I had represented once who did just the same – only they didn’t replace the turf: they were campaigning for the release of George Davis, imprisoned for a robbery in north London. Even more of a distraction was a lone fox that appeared from the Pavilion end and performed a mighty fine run up to the wicket.
Preparing for a case of this size takes a massive amount of time and effort. As I’m not exactly computer-literate with everything contained within the slimline confines of a laptop, I can often be seen with a wheelbarrow-type contraption lugging supermarket cardboard boxes filled with old-fashioned ring-backed files, the ones that have a habit of breaking open of their own accord and releasing hundreds of pages indiscriminately onto the floor. A perennial problem. A close colleague, Tanoo Mylvaganam, suffered the misfortune of high winds on the imposing York central railway station, which blew her papers, like confetti, across the platform onto the track. Normal service could not be resumed until every sheet had been retrieved. Headline writers next day had a field day – BARRISTER’S BRIEFS HOLD UP TRAINS!
For the de Menezes inquest, the paperwork encompassed all the stuff amassed by the IPCC during its six-month investigation, extra materials brought about by the Health and Safety prosecution, and further documentation generated for the inquest itself. In total, I would estimate, about 22½ wheelbarrows’ worth.
Reading all this material was far from straightforward because two-thirds of the witnesses were anonymous, yet there was no consistency about this. Sometimes they were referred to by their rank, sometimes by their role, sometimes by a letter or a combination of letters, or by a combination of letters and numbers, and sometimes by an arbitrary first name not their own. To make life even easier, departments within New Scotland Yard were also known by a combination of letters and numbers. For operational purposes when they came together to act as a group or unit – I expect you’re getting the hang of it – they were all allocated different colours: red and grey for surveillance, black, orange and green for firearms. (In one of my earliest cases, before the introduction of screens, the security services were so protective of their witnesses that they proposed putting paper bags over heads with holes cut out for eyes, nose and mouth.)
On top of all this, in the bundles and bundles and pages and pages of documents to scrutinise, you suddenly turn the page and find that whole sections have been redacted for security reasons. Often this has been done in a hurry and not very professionally. Hold it up to the light and every letter’s in sight. They should have used that much-advertised washing powder . . .
Once I have mastered the fundamental material, I then have to work out a strategy commensurate with the central tenets of the family’s beliefs, and this is the most interesting stage for me. If the family are right, then using that premise I go back to the drawing board as if I were the senior officer in charge that day. As a matter of common sense, what should have happened? And then, could it have been accomplished? Finally, what prevented a different result? These are interrelated questions, and the answer to one also answers another. I am mindful to avoid the benefit of hindsight, and not to impose superhuman powers and perception on everyday human affairs.
The drawing board for me starts with the scene of the crime. As in the Jill Dando case, I need to re-examine the minutiae of what has been left behind by the perpetrator. Not rocket science, I admit. There are obvious shortcomings when you try to do this at a distance, and nearly three years down the line, but in this case it revealed some important neglected material.
The suicide bombers on 7 July had left their signature at the scene. At least one rucksack used on that occasion contained identification documents relating to the bomber. The police, aware of this on 21 July, tasked detectives to search the various rucksacks accompanying the unexploded bombs, but before they could do so each had to be made safe by bomb-disposal experts. The one at Shepherds Bush was troublesome and took longer to clear than the rest. By 2.15 in the early hours of 22 July a gym card had been discovered bearing the name Hussain Osman. The membership related to the South Bank Club in Wandsworth Road, and this was checked out in the middle of the night. It was a joint membership in two names with two cards, one relating to Osman and the other to Abdi Omar. Osman had joined some two years before. There was one address for the two cards: 21 Scotia Road.
All this information reached Commander McDowell at New Scotland Yard, the officer in overall charge, around 4 a.m. on the Friday. By 4.55 a.m. he had recorded and set his strategy – for this address to be controlled and contained by surveillance, with specialist armed back-up as soon as practicable. It was an urgent and sensible priority. What was neglected was whether there was any more information, particularly pictorial, that could assist in the description of the two men. How else could an effective manhunt be carried out?
I’ve always found it difficult to believe that there was an ‘intelligence vacuum’ surrounding the bombings in July 2005, as was asserted by New Scotland Yard. Either there was a lack of joined-up thinking about information gathered by different intelligence agencies, or those agencies had not been doing their job. Some of the victims of the bombings have already called for a full public inquiry into this, but there are criminal trials and inquests still ongoing.*
One trial has already taken place. In 2007 six men were convicted of conspiracy to murder on 21 July 2005, and one of them was Hussain Osman. Another was called Omar, but was not the one linked to 21 Scotia Road who was Abdi Omar. It was accepted that Abdi had no involvement with the attempted bombings. It is worth noting nevertheless that senior officers thought he bore a good likeness to the CCTV images from Warren Street; had he happened to emerge from Scotia Road that morning, he too would have been at risk of being shot.
In relation to the trial of the attempted bombers in 2007 I had for a short time represented a co-defendant named Adel Yahya, and I recalled some surprise evidence served by the prosecution, which disclosed Yahya with a number of others on a camping trip in Cumbria. It was suggested by the prosecution that this was a jihadist training camp. What caught my attention, and continued to do so in 2008, was that the trip was in May 2004, a year before the attempted bombing. The camp had been monitored closely by Special Branch (SO12), and had been filmed over a number of days. There were a large number of still photographs, something in the region of 400. Now Special Branch does not go to the bother of such an expensive expedition (codenamed Ragstone) on a whim or a fancy. There must have been some intelligence behind it all, the detail of which is still not known. A collection of photographs that big, showing people and vehicles, ought to have opened a veritable Pandora’s box of potential associations. Beyond an initial flurry of interest, we were led to believe that it remained dormant until 22 July 2005, presumably housed in a Special Branch archive at New Scotland Yard.
I couldn’t remember if Osman had attended the camp, so in the run-up to the inquest I telephoned one of the lawyers who had represented him at the trial, Jim O’Keeffe. He was extremely helpful, and luckily had kept a number of the relevant documents in store. He dispatched them immediately. Osman had indeed been at the camp. He featured prominently in a large number of photographs, many of which had been exhibited at his trial by the Metropolitan Police. Hit number one.
Number two was even more dramatic. Along with the photographs sent down by Jim O’Keeffe were others taken in quite a different situation. These were also exhibited at his trial, but where had they come from? To my astonishment they had been discovered in the rucksack found at Shepherds Bush.
This was completely new information to those of us representing the de Menezes family. The detailed investigation by the IPCC had not uncovered it; preparations by the prosecution in the Health and Safety trial had not done so; nor had investigations carried out on behalf of the coroner. The police had assembled five teams of barristers for the inquest, to represent the Commissioner, the Command team, the shooters, the remainder of the firearms officers and all the surveillance officers. All manner of visual aids were provided by New Scotland Yard, most tellingly schedules relating to the bombings on the 7th, the attempted bombings on the 21st, the suicide bombers, their arrests and the outcome of their trials. Funny how no one at the Yard spotted the omission of any reference to these photographs for the purposes of the inquest.
An hour or so after the gym card had been found, the same detective who had continued to examine the contents of the rucksack found an envelope in a side pocket containing torn-up documents, and some of these were photographs. He diligently pieced them together, and discovered that they were wedding portraits of a man and a woman: he had no doubt that the man was Osman. He photographed the reconstruction in order to preserve the originals for other forensic examination and, having completed this, telephoned his superior, the detective in charge of this aspect, Superintendent MacBrayne, and informed him of the results of his handiwork.
Almost at the same time as this information was coming through, MacBrayne and another senior officer, Detective Chief Inspector Patrick Mellody, were having a long and intense meeting with Commander McDowell. Not a word was uttered about the additional rucksack photographs. MacBrayne had taken it upon himself – without ever seeing the original, reconstituted photographs or a photographic copy – to decide that they would be of no use to the manhunt. They did not bear a name or a date and he was concerned to preserve any fingerprints. At the inquest I reminded him that potential fingerprints would only apply to the original photographs, and anyway the gym-card photograph being relied upon was likely to be at least two years old. None of this explains why he didn’t mention the photographs to anyone between 4.30 and 9.30 a.m., even though he had attended numerous meetings.
But these were not the only photographs neglected during these early meetings, despite the presence of DCI Mellody, an extremely experienced and senior member of Special Branch, the department responsible for Operation Ragstone. Pretty well everything else about the operation, except the photographs, was discussed. Commander McDowell agreed during my subsequent questioning that he would have expected there to be photographs on an operation of this kind.
In fact the 400-odd photographs from the camp depicted approximately fifteen Asian males in combat clothing. The black Nissan Primera (P579 UBB) parked near 21 Scotia Road was in Cumbria, as were a number of other vehicles, among them a blue VW Golf (L199 FPA) registered to Yeshiembet Girma at another address in Stockwell. This was the woman in the wedding photographs. By placing the photographs in the order in which they were taken, it was possible to discern who was most closely associated with the vehicle – the person who could be seen walking towards it, standing next to it and sitting in it. That man was Hussain Osman.
Oh, say the police, but we had not made that connection by 21 July. We go to the trouble of taking all these photographs, but we don’t go to the trouble of following them up in that way. Too much an invasion of privacy, too disproportionate. In that case, it is difficult to imagine how they would describe the original excursion by Special Branch. And by the way, what about the information coming from the Stockwell mosque?
When Detective Superintendent MacBrayne came to give evidence at the inquest, I asked to see his original notes, made in two red hardbacked daybooks on the morning of 22 July in relation to the various meetings he had attended with Commander McDowell. They had not been examined before. I spotted some important words written alongside information about Yeshiembet Girma: ‘wife of Osman’. These entries were preparatory to a meeting at 7 a.m. If they knew this then, it would not have taken long for the intelligence unit, situated right next door to the control room at Scotland Yard, to detect that the man standing next to the car registered in her name in the Ragstone photographs compared favourably with the images from the rucksack. This in turn would have provided the surveillance officers with a much better range of material, particularly as it showed Osman full stature, giving a rough estimate of his build and height.
Among the pre-inquest materials was a DVD of a television documentary8 presented by the well-known investigative journalist Peter Taylor (who had done similar work in relation to Bloody Sunday). I saw the programme when it was first transmitted and remembered it mainly for footage taken in Israel, illustrating different methods of dealing with suicide bombers, and Henrietta and I both thought we should watch it again. This time, of course, we paid far greater attention to detail. Near the beginning was an observation (almost an aside), in which Peter Taylor mentioned that Osman had been known for his connection with a mosque in south London. Further research by Harriet, my solicitor, showed that this topic had also been mentioned on Channel 4 News. It appears that over the two years preceding July 2005 Osman had been attending a mosque in Stockwell, and had made his presence felt in unwanted ways. He was known there under his own and another name. This had been reported by one of those running the mosque to the Borough Commander in Brixton, and this person had also contacted a unit within Special Branch at New Scotland Yard entitled Muslim Liaison. The police claimed that they only knew about the alternative name, and not about the name of Osman. Exactly what information the police have in their files about this has not been revealed.
There was yet another line of enquiry that could have borne fruit before the fatal shooting, and which could have helped to exclude Jean Charles. Osman had a driving licence bearing his photograph, but this was not obtained from the DVLA in Swansea until midday on 22 July. The initial explanation for this was that it could only be accessed during office hours and it would take some time. I think we are all aware that the slightest traffic transgression is tracked down promptly these days. Data is centralised and computerised, and I found it difficult to accept that the emergency services – properly authorised – could not get to it within an hour or so at the most. A little later in the inquest, after some checking had been done, it was conceded that in July 2005 there was a hotline for police out of office hours, which would have produced the necessary goods within an hour and a half.
So far, by my reckoning, we’ve reached double figures in relation to photographic materials of Osman available before 9.33 a.m. on 22 July. Without any of this, small wonder that surveillance was hindered. In the control room at New Scotland Yard the poor identification process was compounded by confusion and bad communication, as Jean Charles went from being a ‘possible’ suspect to ‘definitely not’ the suspect, back to a ‘possibility’ and then a ‘certainty’. This variation occurred over a period of roughly seventeen minutes.
Identification is notoriously difficult and fraught with subjective judgement. You can fail to recognise someone you know, or go up to someone you don’t know thinking it is someone you do. Judges in criminal trials are obliged to issue a caution to juries where identification is an issue, especially fleeting-glance cases, with detailed directions about the risks of misidentification. Lawyers call this the ‘Turnbull’* direction.
With all these qualifications in mind, what was required that morning was someone in command to think through how it was going to be possible to implement Commander McDowell’s strategy set at 4.55 a.m. It couldn’t be formulated in a vacuum, or left to float somewhere in the ether, and an obvious candidate to do so was McDowell himself.9 I reminded him of his obligations as Gold Commander, as outlined in the Association of Chief Police Officers’ Manual, to oversee and review implementation.
First, the overriding concern and urgency for London was to ensure, so far as was humanly possible, that no potential suicide bomber would be allowed onto any form of public transport.
Second, Scotia Road was linked to two suspects and the Nissan parked outside. It could be a bomb factory, a safe house, a store or even a decoy. While of course a suspect might not return to what the police call a ‘footprint’ address, knowing he’d left his details in the rucksack, this cannot be safely assumed, and anyway there might be others associated with him still there. All things considered, it was the best lead at the time, whatever else might come on stream later.
Combining these two points, therefore, what had to be calculated was how much time and space were needed to stop any potential bomber from 21 Scotia Road before they reached the bus.
To make these calculations you need to have the base data: the geographical layout, the streets, the premises, the points of ingress and egress, and the nearest public transport. These strategic parameters determine what has to be done tactically to achieve the desired objective, yet this was not something readily appreciated by some of the police witnesses I questioned at the inquest.
Nearly all the relevant data could have been ascertained within a matter of minutes. If someone had referenced a detailed map, of the type commonly used by the police, the answers were there, but no one did. It would have shown that number 21 is not a discrete property with a visible front door – something which took the control room some two hours to appreciate; it would also have revealed that Scotia Road is a cul-de-sac with only one exit for both cars and pedestrians, and that once through this ‘pinch point’ you can only turn left or right, and that the closest bus stops are right there, on opposite sides of the road. Walking that distance could be estimated at two to three minutes, with another three to four minutes to the next nearest bus stop – the one used by Jean Charles.
No one in the control room seems to have troubled themselves with these calculations: far too busy with manuals, meetings and matters of greater moment. It’s always someone else’s responsibility to tiddle about with the nuts and bolts.
Someone who did concern himself with these nuts and bolts was Derek (codename), the Red surveillance team leader on the ground at Scotia Road, who was repeatedly alerting the control room to these points and wanted the nearest bus stop suspended or the route diverted to allow more time. Cressida Dick, the Designated Senior Officer (DSO)10 appointed specifically for this part of the operation in case a critical shot was required, did not know where any of the bus stops were, let alone how long it would take someone to reach one.
Unless everybody, from top to bottom, realises the minimum window of opportunity for an intervention before public transport is reached, there is a risk that they will fail to tailor the role they are performing to the exigencies of the moment. It’s unlikely you will achieve a positive identification within three to six minutes, and the best you’re going to be able to do is make an obvious elimination. Trojan 84, one of the most impressive inquest witnesses, as well as an experienced and perceptive firearms tactical advisor, used the phrase: ‘The stakes are high’.11 Therefore, to pre-empt the possibility of a suicide bomber getting on a bus, all those not expressly eliminated (Jean Charles and one other) would need to be intercepted. Trojan 84, unlike Cressida Dick, took the view that this could have been done with the firearms resources that had arrived in the stretch of Upper Tulse Hill along which Jean Charles had walked – and Trojan 84, unlike Cressida Dick, was actually on the ground that day.
These are factors no one in command sat down and discussed, or communicated through briefings to others. We were constantly reminded by the senior officers about the pressures of the day, the fast-moving dynamic nature of the exercise and the uniqueness of confronting a failed suicide bomber. This is fair. But it is precisely these elements that police officers are trained to handle. Pressure, stress and split-second decision-making are the order of the day. And it’s not as though there was any shortage of brainpower corralled around Cressida Dick. Besides the Gold Commander, McDowell, there were a minimum of eleven senior officers on hand: Dick herself had brought in a particular colleague to advise and challenge her decisions; there was a senior investigating officer (control-room Silver Commander) and his deputy; a senior firearms tactical advisor; two senior Special Branch officers; four control-room managers and coordinators; and two inspectors preparing to act as location Silver commanders.
For certain operations the police have devised a pyramid of responsibility designated by the terms Gold, Silver and Bronze. Usually there will be one Gold Commander at the top, but there may be a number of Silvers and Bronzes below. Part of the problem in this instance was that the control-room Silver wasn’t in the building when the strategy was set and the location Silver, who takes charge of the scene on the ground, did not arrive at Scotia Road before Jean Charles departed (nearly five hours after the strategy decision). The main reason for this protracted delay was that the firearms team (black), deputed to go to Scotia Road, did not come on duty until 7 a.m. They then had to be kitted up, briefed at Leman Street police station in the City of London, and travel to the Nightingale Lane rendezvous point near Clapham Common in south London for a second more detailed briefing before dispersing to the target location in Scotia Road, Tulse Hill. The scale of this lacuna crystallised at the inquest for the first time, when it emerged that there was, all along, an overnight standby CO19 team (orange) kitted up, sitting in the canteen in New Scotland Yard together with a tactical firearms advisor, by 5.30 a.m. ready to go. There was also an inspector available to accompany them as Location Silver. None of this appears to have been known by Commander McDowell who was on duty throughout this period or by DSO Cressida Dick, who had come on duty at 7 a.m. but who had been present in New Scotland Yard at least an hour before that.
There was another problem for Cressida Dick. She missed the window of opportunity altogether. She was unaware of Jean Charles’s departure from the block of flats until he was already on the number 2 bus nearing Brixton. Quite how she managed this is a little perplexing. At least two witnesses, Pat (codename) the surveillance monitor and someone else sitting behind in the control room, said that Dick and her coterie of officers were alerted to this. Maybe she was not expecting a bomber to emerge that day and was not prepared for the possibility of one. Maybe she was distracted by the late arrival of her loggist, whom she had to instruct about the day’s events. Senior officers involved in crucial decision-making rely upon someone else to keep a diary of events and decisions for them, because clearly they don’t have time to do it themselves. Cressida Dick had asked for one to be appointed two hours before he actually arrived at about 9.40 a.m. As the loggist had missed all the briefings, he had to be put in the picture and brought up to date.
What followed was bizarre. As we know, the levels of identification fluctuated from one extreme to the other, but at the point when it appeared that Jean Charles was discounted as a suspect, another team of officers was brought into play. An arrest car containing three unarmed anti-terrorist squad officers from SO13 was deputed to intercept the bus, detain the suspect and question him for intelligence purposes. It did not use the route of the bus and the following surveillance officers, but cut across south London to Stockwell before the bus reached the station. As far as they were concerned, he was not a potential terrorist and they were not near 21 Scotia Road, which meant they could clear the way ahead of them, trumpeting their impending arrival by the familiar ‘blues and twos’ – blue light and siren, for the uninitiated. It was probably the first police car to arrive at this important junction where everything was to unfold minutes later, and as it turned into Stockwell Road, the bus was coming towards them from the opposite direction. The car continued flashing and blaring, past the bus, did a U-turn and came up behind the target. If there had been a suicide bomber on the top deck of the bus, he would have had a wonderful bird’s-eye view and plenty of advance warning. The arrest squad, having got themselves into position, were then told that Jean Charles was the suspect after all and that they should hold off (because they were not an armed unit).
Meanwhile back at the ranch, teams of specialist CO19 firearms officers had taken up the trail. Five out of six cars followed the route of the bus, but the sixth followed the route of the arrest car. In the traffic conditions which pertain in the London rush hour it would have been far quicker to have sent the two motorcycles that were on standby at Nightingale Lane near Clapham Common. You may think dear old Frank in the back of the van had a problem, but so did the motorcyclists. Their radios didn’t work either, and trying to use a mobile with all that headgear and gauntlet gloves in the awful traffic noise was a trifle tricky. So they couldn’t be deployed.
It wasn’t that much better for those who went in the cars. This time it was the main radio system Cougar, which was supposed to provide the channel of communication between the pursuit cars and the control room, that was playing up: for some cars it wasn’t working at all, for others it was intermittent, and for yet others it was indistinct.
Besides this, the line of contact between the teams and the control room was convoluted. There were several different options: an individual car could radio a message, in the hope that other cars on the same channel would hear it; if surveillance, the message might have to go via the team leader James onwards to the monitor Pat at New Scotland Yard; alternatively, Pat might just have heard it over the airwaves anyway; on the other hand he might not, or he might have misheard it. That could explain how a message from James to the effect that ‘It’s possibly him’ could have been construed by Pat as ‘They believe it’s him’ and overheard by firearms as ‘It’s him’.
When dealing with firearms, messages to and from the control room would probably have had to go through a number of hands: the firearms team leader on the ground to the firearms tactical advisor (Trojan 84) or the Silver Commander, who would then use a mobile phone to contact the tactical firearms advisor in the control room (Trojan 80), who would then have to tell Cressida Dick. At any one of these stages one might not be able to get through on the phone because the other was otherwise engaged, and this is what happened to the two tactical advisors. None of this is very propitious for split-second, fine-tuned decision-making, and effective orders in these circumstances are well nigh impossible.
I did suggest to Cressida Dick that she should have been listening herself to significant radio traffic from the surveillance team, which could have been broadcast in the control room over the speakers without the need for an intermediary. These broadcasts should have been (and now are) recorded for everyone’s benefit, each speaker being identified via their call-sign, so that exactly what has been said and by whom is readily available. If there is another operation being handled at the same time (which there was at 61a Portnall Road), then another DSO on another channel could be monitoring developments on the ground with a headset.
If you are not on the spot, you need up-to-the-minute (indeed, up-to-the-second) precise information about the movements and positions of all the individual key players and the target. In this day and age such a requirement is plainly achievable through stateof-the-art technology. At the inquest I relied on ancient analogies derived from the war. Given my age, I’m sure there were those who were asking themselves: which war is he on about? Well, the Second World War – not that I was up and about too much at the time. What was available even then were wall charts plotting the positions of ships, planes and military units; this could be done with little flags, pins, small models and in some cases lights. Nowadays, with all the electronic tracking devices and the ability to visualise the vehicles transmitted by these devices, it must be possible to contrive an instantaneous overview.
Even without this, all that Cressida Dick needed to do at that time was procure a large-scale map of the area and project it onto the control-room wall. (This had been done in the past.) It could then have been someone’s sole responsibility to ensure, through direct communication with the units on the ground, that everybody’s progress was monitored as it happened; and this information could have been transferred onto the map for the benefit of everyone in the control room.
As it was, the majority of the information was being received sporadically and in a piecemeal fashion. Mainly it was coming through the mobile phone being used by Trojan 80, the firearms tactical advisor in the control room; via a mobile phone being used by the Silver Commander with the unit on the ground; and through a phone being used by Cressida Dick. The result of this method was that confusing messages were being received and no one knew precisely where any of the cars were. As we have seen, outside Stockwell Tube station, at the junction opposite the entrance, there were three or four armed surveillance officers on foot, two or three cars with specialist armed officers and the SO13 car: quite sufficient to carry out a controlled armed intervention. Ralph (codename), the firearms team leader, described in evidence how he thought this could have been done by encircling Jean Charles in the middle of the road as he crossed to the station. It would have been done from positions of cover, but the actual tactics could not be revealed for reasons of confidentiality.
What actually happened in the control room is that when Cressida Dick first ordered CO19 to do the stop, she was told by Trojan 80 that they were not in a position to do so. She then considered the desirability of using SO12 officers who are not so highly trained, one of whom, Ivor, had volunteered to ‘lift him’. She cancelled CO19 and decided to order SO12. She was then told that CO19 were in a position to carry out the stop. She countermanded SO12 and reordered CO19, but it does not appear that either of the commands to SO12 was received. In any event, by the time she issued a final order to stop – not an order authorising a critical shot – Jean Charles was already down the escalators. This much was clear from her decision log, as well as from other witness evidence. At the inquest, however, she stated that she would not have used CO19 if she had known that Jean Charles was going down the escalator.
The real regret here is that if Ivor had done ‘the lift’, Jean Charles would still be alive. I asked Ivor at the inquest if he would be kind enough to demonstrate how he would have done it – something that had not been requested before and breaking one of the basic rules of advocacy: never ask a question to which you do not know the answer. His technique was graphic, simple and effective. To preserve the element of surprise he and another officer, Ken (codename), would have approached Jean Charles from behind as he negotiated the ticket barrier, with his Oyster card in his right hand and the Metro newspaper in his left: in that moment of preoccupation, Ivor and Ken would have grabbed an arm each and physically restrained him. Both officers had guns and handcuffs. It would be unwise to force a suspect to the ground in these circumstances in case there was a bomb hidden in his clothing, but as was obvious to these officers, Jean Charles did not have a rucksack, did not have any telltale wires protruding from his jacket sleeves or any initiation device, pad or switch in his hands. Had anyone had the presence of mind, the barriers could have been temporarily closed and locked as soon as Jean Charles left the bus, so that no one could have gone down the escalators.
I wanted to find out whether such a straightforward technique had been practised within CO19. After 9/11 somebody must have anticipated the prospect of a suicide bomb attack in London, which might be delivered in a number of ways, most obviously by a person on foot. This was likely to be in a crowded urban situation: a shopping precinct, a high street, a railway station, an airport, an Underground train or a bus. It would not be possible in these scenarios to carry out a controlled armed challenge without provoking the very event you are trying to prevent. If you are sure the person has a bomb, does that justify undercover officers shooting the person dead on the spot without warning? On the other hand, if you are not sure – and this is the more likely scenario – how do you deal with somebody who might be a suicide bomber? These are questions that have not received public scrutiny, but which in a democracy require public debate and approval. We all need to be clear what it is we expect our police force to do in our name. The use of lethal force must be contained within agreed parameters of principle, and there must be unambiguous rules of engagement. Ironically, a letter written by Sir Ian Blair, following a meeting with the Prime Minister Tony Blair and dated the very day of the attempted suicide bombings, was canvassing these points. The Commissioner was going so far as to suggest that the time had come for a policy empowering police to kill suicide bombers on sight.
These were all questions largely beyond the remit of the coroner’s court, but Ivor’s technique was not. The coroner has the power at the end of an inquest to make recommendations which may be necessary in order to reduce a repetition of risks resulting in death (Rule 43). Within fifty-six days the Commissioner and the Metropolitan Police Authority are required to provide a written explanation of what they have done or propose to do; and if nothing, why not?
So had CO19 been practising similar methods for an urban setting? This was an operationally sensitive topic, and not much could be extracted from the officers I questioned. In the end there was a concession that it certainly hadn’t been practised before July 2005.
Yet since 9/11 2001 the British police have been planning and preparing for suicide attacks. There have been working parties, research, visits to Israel, Pakistan and Sri Lanka, mock exercises in street conditions on computers and on tabletops. What this had thrown up by July 2005 was a policy codenamed ‘Kratos’, which contemplated the delivery of a ‘critical shot’ (meaning a fatal one). There is huge reticence in police circles about using the word ‘kill’, probably because it sounds too brutal, so the concept is dressed up in language like ‘neutralising’, ‘nullifying’, or ‘negating the threat’. It is argued that doing anything less, such as shooting at other parts of the body or using a stun or laser gun, may not eradicate the threat.
The term Kratos has been amplified and overtaken by other codewords, and I am not at liberty to disclose what is currently involved. At the time, however, Kratos covered two different situations. The first contemplated a spontaneous call from a member of the public or a police officer, reporting a suspected suicide bomber. Since there might be hundreds of such calls, each one would have to be assessed, usually by an on-call DSO, who would decide whether action should be taken and what resources were available for such action: for example, an ARV (Armed Response Vehicle, on standby in London, with an average response time of twelve minutes) or a specialist unit. If reliable intelligence became available that the person was about to detonate a bomb, the DSO could authorise a critical shot. If there was no intelligence and no obvious signs of a bomb (a belt, vest or wires), then the individual firearms officer would have to make his own assessment. But does this involve a warning or not? The normal Association of Chief Police Officers (ACPO) firearms manual permits an officer to exercise his or her own discretion and not issue a warning if this would endanger life. This goes without saying, because to do so would alert the target; and anyway in ordinary firearm, non-suicide situations such as a hostage-taking or a kidnap, the threat is more obvious. The Kratos policy on the other hand did suggest a warning, which yet another tactical firearms officer, codenamed Andrew, said takes the form of: ‘Armed police; stand still; show us your hands.’ How else would you assess whether the person was a suicide bomber?
It was precisely these considerations that lay behind the evidential conflict at the inquest. The officers claimed they had made an assessment by shouting ‘Armed police!’ and by observing the bulky jacket, Jean Charles’s reaction, etc., whereas I suggested that they had made a covert approach without shouting anything, because they had predetermined that he was a suicide bomber and had no time for a proper assessment within the five to ten seconds from their first seeing Jean Charles to shooting him.
According to the passengers, and to the verdict of the jury, no challenge was made to Jean Charles. It seems to me that it should be obligatory to issue a warning or challenge where the person may not be a suicide bomber, and where there is no intelligence and no visible evidence to suggest that he is.
The second situation covered by Kratos was known by another codeword – ‘Clydesdale’ – which had no application to Stockwell: where the police have specific intelligence that a suicide bombing is going to take place, they can mount an operation in advance with clear authorisation for a critical shot. Clydesdale would therefore apply to major public events like Trooping the Colour, a state visit, a political party conference or the Olympics – in other words, something pre-planned.
As the inquest entered its closing weeks in November 2008, after a wait of nearly three and a half years and almost eight weeks of intense evidence, the family felt that their concerns had been aired and that police witnesses had been held to account in the witness box. But the most important stage, the deliberations of the jury and their verdict, were yet to come. The family was expectant and hopeful that at last it would experience justice being done, and being seen to be done.
After lengthy submissions, the coroner ruled that he was withdrawing two verdict options from the jury: unlawful killing (murder) against C12 and C2, and unlawful killing (manslaughter) against Commanders McDowell and Dick and Trojan 80. This left lawful-killing and open verdicts only.
The considerations for each version of unlawful killing are different. In relation to murder, there has to be sufficient evidence to prove this allegation to the criminal standard so that a jury can be sure. Where self-defence or defence of others is pleaded, a jury has therefore to be satisfied so that they are sure the officers did not have an honest, albeit mistaken belief that they were defending themselves and others against an imminent threat of death. The coroner’s judgment was that no properly directed, reasonable jury could find that the officers either did not have or may not have had such a belief. If a jury were so to find, then it could be characterised as ‘perverse’. On behalf of the family, I did not agree. I contended that there was a perfectly satisfactory evidential basis (the passengers’ evidence, for example) capable of giving rise to a safe inference by the jury of unlawful killing.
This poses, and has posed in the past, a serious conundrum in cases where police officers kill, because their justification is nearly always self-defence. Does this mean that they can hardly ever be prosecuted for murder, let alone face a similar allegation in an inquest? There are judges in the Divisional Court who believe that the verdict of unlawful killing (murder) should never be left at an inquest in police cases, because it would be tantamount to a criminal conviction for murder without the protections afforded by a criminal trial. They also argue that such a verdict risks breaking the rule in inquests that prohibits specific findings of criminal or civil liability. I think this is quite unacceptable, because the use of lethal force should be subject to the processes of legal scrutiny and adjudication, if for no other reason than for public confidence and accountability. An inquest may be the only legal vehicle for doing this.
Perversely, the opposite of inculpation – namely exoneration – is permissible. What tends to happen in inquests is that the converse verdict of lawful killing is left. This is mainly because the standard of proof for this finding is far lower: that of the civil standard, on the balance of probabilities (more likely than not). So all a police officer has to do is show that it is more likely than not he was defending himself or others. My argument here is they can’t have it both ways. Either there is no verdict of unlawful or lawful killing made available to juries; or they should both be available with the same standard of proof. I favour the latter, on the civil standard, and any unlawful-killing verdict would not be tantamount to a criminal conviction, whatever the tabloids might like to think. This is because, under inquest rules, no individual can be named or found criminally liable in any verdict. It would then be for the DPP to decide whether a criminal prosecution, on the criminal standard, should follow.
It is a common practice, where lawful killing is left for the jury, for an alternative ‘open’ verdict to be left. This is to provide for a situation in which the jury is agreed that there is insufficient evidence to cross the threshold of proof required for the short-form verdict – here, more likely than not, lawful killing. It is not intended to cover a situation in which the jury merely cannot agree on a specific verdict like lawful killing. Therefore where a jury returns an open verdict and rejects lawful killing, there may be those among their number who – while believing that the evidence is insufficient to prove it was probably lawful – may nevertheless consider it was unlawful. But the opportunity to argue this position has been withdrawn. It is of interest that this jury, after they had retired, did ask a question about these options.
The manslaughter allegation is more complicated. There are a number of different elements that have to be proved to the criminal standard against each individual quite separately. Legally speaking, you cannot combine a number of different acts and omissions committed by different individuals (aggregation) and put them in the pot against one individual. So against any one person – in this case a senior police officer – it has to be shown: first, that there was a duty of care owed by that officer to Jean Charles; second, that there was a breach of that duty by some act or omission by the officer; third, that the particular breach contributed to the cause of death; and finally, that that breach could be characterised by a jury as a grossly criminal act or omission. The coroner was not satisfied that these four elements had been made out, save in part as against one of the individuals. I argued otherwise.
The verdicts discussed above are known as ‘short-form’ simply because they are attempts to summarise a particular cause of death. As such they plainly do not cover the whole chain of events that preceded it. In order to meet this need and comply with the requirements of the European Convention on Human Rights, juries in inquests are now permitted a narrative verdict. There is no stipulated form for this, and within the various rules about liability and so on they can use whatever words they like. This is a new development, and unfortunately judges (high and low) are worried about trusting juries to get it right. Better, they say, to set limited questions to which the answers are equally limited: ‘Yes’, ‘No’ or ‘Don’t know’.
This is an extremely important fresh dimension. Whereas it may not be possible to demonstrate failures to meet the criteria within manslaughter, it will often be possible to identify a whole range of acts or omissions which contributed more than minimally to the death. Advocates in inquests cannot make speeches or submissions to the jury, but they can (when requested) assist the coroner on matters of law, and this is done in the absence of the jury. At the de Menezes inquest there was intensive argument on what narrative questions should be left, with little agreement between us and the five police teams, leaving the coroner’s team bravely trying with consummate grace and good humour to balance the scales between us. Besides the individual areas that we thought should be addressed, we wanted the jury to have the liberty to add overall observations of their own, because we did not believe that the lawyers had the monopoly on this. In particular I felt it important that the jury should be able to qualify any contributory cause that they found in terms of its level of gravity: how much of a cause was it? I was unable to persuade the coroner of this.
When the coroner announced his rulings, it was a bitter pill for the family to swallow. Despite all the delays, lies, misleading statements, legal setbacks and disappointments, they had always maintained hope and above all their dignity.
As the coroner began his summing-up on the penultimate day of the inquest, we decided to see even at this late stage whether it was possible to get the Divisional Court to intervene. I focused only on one part of the rulings, the section about what the jury can do in relation to a narrative verdict. Launching a judicial review is quite a palaver, because you have to find a judge who is available to hear it at short notice, assemble all the necessary forms and notices, and put together bundles of documents from the inquest and files of legal authorities. Given that the judge will not be familiar with what has been going on at the inquest, you have to be in a position to summarise what has happened so that the relevance of the complaint you are making can be seen in context. A lot of midnight oil was burned by Marcia and Henrietta to get it completed, and by me in thinking – or was it sinking?
In comes the Wednesbury Unreasonableness Test once more. We did not get leave, and this was the last straw for the family. It was an extremely tense and emotional stage, exacerbated by the fact that half the family were back in Brazil. When you are driven to distraction there is often no alternative. And so at the eleventh hour, on the last morning, just before the remaining couple of hours of the coroner’s summing-up, the family decided they no longer wished to participate and no longer wished to be represented in the hearings. After all the time and effort that had been expended, a great deal of soul-searching was undertaken by decent and responsible people to reach a decision of this kind.
It was only the third time in the whole of my career that I have ever stood up in front of a court to announce my withdrawal. For me, it goes against the grain and, where there is a choice, I always prefer to stay in there and fight every inch of the way. But then it’s not about me. I had, and have, complete respect for this family, which has survived against all the odds. Equally I had, and have, complete respect for a decision when there was really no other option left.
Suddenly I found myself packing up all those boxes, clearing the room overlooking the cricket pitch and leaving the Oval without a result. I was thrust into a vacuum, powerless to do anything about whatever might happen in court thereafter. I never lost faith in the capacity of the jury to restore the family’s confidence in the system. This was partly due to the nature of the numerous questions they had asked throughout, passed to the coroner on small pieces of paper, which by this stage filled a container the size of a shoebox.
No sooner had the jury retired than they started asking more questions. They wanted to know what they should do about unlawful killing, and whether there were other things they could say, beyond the questions set by the coroner as part of the narrative. Too right. I could hardly believe it. These were precisely the points we had been making a few days before, to both the coroner and the Divisional Court, although of course the jury didn’t know this.
Waiting for a verdict when you’re not involved is even worse than when you are. I was not there to see the jury when they started and finished their deliberations each day; I was not there to see what they looked like, how lively or tired they were or what body language they displayed. Then there are the rumours that usually percolate the corridors. If they want lunch, does it mean they’re going into the afternoon? If they want to come in early or stay late, does this mean they’re close to a conclusion? It’s probably all nonsense and way off the mark, but you cannot avoid engaging in this kind of speculation. Only I couldn’t.
It was worth the wait. I was at home working at my desk, listening to BBC Radio 4. The one o’clock news came on as usual and there it was, the first item: I’d never heard a verdict in that way before. It started with the open verdict, and I knew exactly what that meant. The jury was not able to find that C12 and C2 had probably acted in self-defence. Amazing! But there was more to come. The jury unanimously rejected two of the mainstays of C12’s assertion of self-defence: that he had warned Jean Charles by shouting ‘armed police’ and that Jean Charles had nevertheless advanced threateningly towards him. I don’t usually jump up and down – unbecoming in a wig and gown and inappropriate in a courtroom – so it was the first time I’d been able to let off steam over a verdict. I jumped!
All those film scenes are complete fantasy. I’m thinking in particular of the one of the freeing of the Guildford Four in In the Name of the Father, with Emma Thompson as Gareth Peirce leaping over the court benches like some crazed gazelle. Totally impossible, improbable and out of character . . . Great drama, though.
Besides the open verdict, these were the other resounding and significant findings of the de Menezes inquest:
CORONER, SIR MICHAEL WRIGHT: The short-form verdict is either lawful killing or open verdict. What is your verdict?
FOREMAN OF THE JURY: Open verdict.
SIR MICHAEL WRIGHT: Thank you. Question 1: did Officer Charlie 12 shout the words ‘Armed police’ at Mr de Menezes before firing? Yes, no or cannot decide?
FOREMAN OF THE JURY: No.
SIR MICHAEL WRIGHT: I should have asked you in relation to the verdict: is that a unanimous verdict or by a majority?
FOREMAN OF THE JURY: It’s a majority.
SIR MICHAEL WRIGHT: How many agreed and how many disagreed?
FOREMAN OF THE JURY: Eight agreed, two disagreed.
SIR MICHAEL WRIGHT: In answer to question number 1, the one you have just given, is that unanimous or by majority?
FOREMAN OF THE JURY: That is unanimous.
SIR MICHAEL WRIGHT: The second question is: did Mr de Menezes stand up from his seat before he was grabbed in a bear hug by Ivor? Yes, no or cannot decide?
FOREMAN OF THE JURY: Yes, and that’s unanimous.
SIR MICHAEL WRIGHT: Thank you. Did Mr de Menezes move towards officer C12 before he was grabbed in a bear hug by officer Ivor?
FOREMAN OF THE JURY: No, and that’s unanimous.
SIR MICHAEL WRIGHT: Thank you. Turning to the factors for consideration, do you consider that any of the following factors caused or contributed to the death of Mr de Menezes: (a) The suicide attacks and attempted attacks of July 2005 and the pressure placed upon the Metropolitan Police in responding to the threat?
FOREMAN OF THE JURY: Cannot decide, sir.
SIR MICHAEL WRIGHT: Again, is that inability to decide by a majority or unanimous?
FOREMAN OF THE JURY: That’s a majority of eight to two.
SIR MICHAEL WRIGHT: Thank you. (b) A failure to obtain and provide better photographic images of the suspect Hussain Osman for the surveillance team?
FOREMAN OF THE JURY: Yes, that’s unanimous.
SIR MICHAEL WRIGHT: (c) A failure by the police to ensure that Mr de Menezes was stopped before he reached public transport?
FOREMAN OF THE JURY: Yes, unanimous, sir.
SIR MICHAEL WRIGHT: Thank you. (d) The general difficulty in providing identification of the man under surveillance, Mr de Menezes, in the time available and in the circumstances after he had left the block at Scotia Road?
FOREMAN OF THE JURY: No, and that’s unanimous.
SIR MICHAEL WRIGHT: (e) The innocent behaviour of Mr de Menezes, which increased the suspicions of some officers?
FOREMAN OF THE JURY: No, that’s a majority of eight to two, sir.
SIR MICHAEL WRIGHT: Thank you. (f) The fact that the views of the surveillance officers regarding identification were not accurately communicated to the command team and the firearms officers?
FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: (g) The fact that the position of the cars containing the firearms officers was not accurately known to the command team as the firearms officers were approaching Stockwell station?
FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: (h) Any significant shortcomings in the communications system as it was operating on the day between the various police teams on the ground and with New Scotland Yard?
FOREMAN OF THE JURY: Yes, unanimous again, sir.
SIR MICHAEL WRIGHT: (i) A failure to conclude at the time that surveillance officers should still be used to carry out the stop of Mr de Menezes at Stockwell station, even after it was reported that specialist firearms officers could perform the stop?
FOREMAN OF THE JURY: Yes, unanimous.
SIR MICHAEL WRIGHT: That concludes your verdict. I am very much obliged to you, Mr Foreman, thank you.
FOREMAN OF THE JURY: Thank you.12
A number of the factors unanimously decided upon by the jury as contributing to the death of Jean Charles de Menezes had been strongly argued for on behalf of the family: the availability of better photographs (b); the window of opportunity (c and d), i.e. that Jean Charles could have been stopped before he got onto public transport and that the difficulties of identification in that period were not a hindrance, because the police only needed to stop those people who were clearly not women, children, the elderly and obviously white men; the inaccurate communication of identity (f); the whereabouts of the CO19 cars (g); the shortcomings in the communication systems (h); and finally the failure to use Ivor to detain him (i).
The jury’s verdict and findings as a whole should be a sign of hope for the future. They should promote and provoke a serious reappraisal by the police of what went wrong and how to remedy it. What the family found depressing – as did those of us representing them – was any real recognition from start to finish that anything had gone wrong. At no stage were the main players prepared to make any major concessions. Where was the humility that Sir Ian Blair had urged upon his officers before the inquest began?
What it needed on day one or two, straight after the killing, was a heartfelt apology, an assumption of responsibility, recognition of failure and a willingness to identify the faults and put them right. We are all human; we all make mistakes, big and small; we are all sympathetic to the enormous dangers faced by police officers. But they must stand up and be counted when it goes wrong, just as much as when it goes right.
The current approach of institutional reticence and denial which permeates the culture of the police (just as it did during the Stephen Lawrence inquiry) has to be admitted and transformed. There is no point in our recommending change, or trusting that changes have been made, if the police really don’t accept that there’s a need for it.
Once again the process has been tortuous and painful. A family has had to push the police authority right up to the wire before there is even a glimmer of hope. The Lawrence family had to wade through a trial, internal enquiries, an inquest and a public inquiry before an eleventh-hour concession by the Met; here, the de Menezes family had to wade through an IPCC inquiry, a trial and an inquest until belated concessions, contended for by the family throughout that inquest, were finally made by the Metropolitan Police Service (MPS) in response to the coroner’s report in February 2009.
These were essentially:
a A system for strategy implementation
b Provision of command continuity
c DSO role clarification (this term has now been abandoned)
d Effective systems of communication (now provided by Airwave)
e Standardisation of terms used
f Surveillance-officer radio identity
g Provision of onscreen maps depicting locations and premises
h Provision of tracker technology
i Improved and standardised techniques and terms for identification
j Improved acquisition and deployment of photographic material
k Joint briefings of operational personnel.
Such progress is to be welcomed and the benefits are awaited.
What has not been satisfactorily addressed or publicly debated are the rules of engagement with regard especially to the delivery of a critical shot. A convoluted and somewhat laboured concept has been invoked – the Conflict Management Model. Strip away the police-speak, and all it amounts to, as ever, is the good sense and discretion of the individual firearms officer. This is not even straightforward for the majority of mainstream firearms situations where challenges are normally issued. For example, within the recent past a chair leg in a plastic bag has been mistaken for a shotgun, a cigarette lighter for an automatic hand gun, and during 2008 and 2009, to May, a further six fatal shootings by police have been reported and are being investigated by the IPCC. It is quite unreasonable to depend on discretion for the extreme situations presented by possible suicide bombers, where the most likely scenario is one in which there is little or no reliable intelligence, only suspicion, and there are no obvious physical indicators, only ambiguity.
In these circumstances there have to be practised procedures for the surprise detention of the suspect in crowded urban environments that do not involve the use of arms and a critical shot; failing this, there have to be clear and obligatory protocols, which must include words to the effect: ‘Armed police, stop, stay still, hands up’.
In the absence of these, there will undoubtedly be more innocent citizens shot dead. This cannot be permitted.
* This is not some midweek crisis, but the name of a case in which this was decided.
* See footnote to p. 224
* Not an expression used by toreadors, just the name of another case.