Leading article: Justice delayed must not become justice denied

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The Independent Online

The decision of the Crown Prosecution Service not to prosecute any individual police officers for the killing of the Brazilian electrician, Jean Charles de Menezes, has provoked incomprehension and anger in many quarters. Members of his family are understandably aggrieved. Their relative was shot at point blank range at a London Tube station: one minute he was peacefully going about his business; the next he was dead: shot seven times in the head. There is no doubt whatsoever that the police shot to kill.

Unsatisfactory though it may be, the CPS decision not to prosecute the two officers from the special firearms unit who shot Mr Menezes is correct. All the evidence in the public domain so far suggests that Mr Menezes was the victim of a tragic case of mistaken identity. The police marksmen believed they were tracking a suicide bomber. For a prosecution to succeed, it would have to prove that the officers knew something different when they pulled the trigger. Nothing that we have learnt suggests they acted in anything other than good faith.

This does not mean, of course, that there is no case for anyone to answer. How it came about that Mr Menezes was wrongly identified as a terrorist suspect on the day after the second - failed - set of London bombings is one of the key questions addressed in the, as yet unpublished, Independent Police Complaints Commission investigation. That inquiry has also examined who gave the orders to track him, and why. Clearly, many mistakes were made between the time Mr Menezes left his flat and his death at Stockwell station, in south London.

Further mistakes were made in the aftermath. Even if there was no dishonesty, as such, there was an unconscionable delay before the Metropolitan Police came clean about the fact that an innocent man had been killed. At best, there was poor internal communication and clumsy presentation. At worst, deliberate efforts were made to distort what had really happened.

It is unfortunate that the findings of the IPCC will not see the light of day until the case against the Metropolitan Police as a whole has run its course. Not only the Met, but the public at large, need to know what went so tragically wrong on that day. There will be important lessons - about the use of intelligence (again), about logistics, about co-ordination and about the chain of command - that need to be learnt. Until the report is published, we can have no confidence that the problems have been, or will be, addressed.

All that said, the charge to be brought by the CPS can only compound the bewilderment of the relatives of Mr Menezes - and a great many other people as well. To bring a case against the office of the Metropolitan Police Commissioner under the Health and Safety at Work Act suggests something like an outbreak of food poisoning or an injury caused by a faulty manhole cover, not the killing of an innocent man by armed police.

In fact, it appears that the investigation will be wide-ranging and the burden will be on the Met to prove that it took all reasonable steps to protect Mr Menezes - something lawyers yesterday described as difficult. If the prosecution is successful, the Met could be liable for swingeing fines, not to speak of the compensation due to the man's family. The deficiency is less in the nature of the prosecution than in its designation in the overall legal framework.

Where an individual is killed by officers of the law in error, and the offence appears to fall short of manslaughter, it seems absurd that this should come under Health and Safety provisions. A separate legal category is clearly needed that will convey the full gravity of these mercifully rare, but exceptionally harrowing, cases.