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GRAND CHAMBER CASE of ARMANI DA SILVA V. the UNITED

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GRAND CHAMBER CASE of ARMANI DA SILVA V. the UNITED GRAND CHAMBER CASE OF ARMANI DA SILVA v. THE UNITED KINGDOM (Application no. 5878/08) JUDGMENT STRASBOURG 30 March 2016 This judgment is final but it may be subject to editorial revision. ARMANI DA SILVA v. THE UNITED KINGDOM – JUDGMENT 1 In the case of Armani Da Silva v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of: Guido Raimondi, President, Dean Spielmann, Işıl Karakaş, Josep Casadevall, Luis López Guerra, Mark Villiger, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Nebojša Vučinić, Vincent A. De Gaetano, Linos-Alexandre Sicilianos, Paul Mahoney, Krzysztof Wojtyczek, Dmitry Dedov, Branko Lubarda, Yonko Grozev, judges, and Lawrence Early, Jurisconsult, Having deliberated in private on 10 June 2015 and on 20 January 2016, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 5878/08) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Brazilian national, Ms Patricia Armani Da Silva (“the applicant”), on 21 January 2008. 2. The applicant was represented by Ms H. Wistrich of Birnberg Peirce & Partners, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office. 3. The applicant complained that the decision not to prosecute any individuals following the fatal shooting of her cousin by police officers was in breach of the procedural aspect of Article 2 of the Convention, which required the authorities to conduct an effective investigation capable of leading to the establishment of the facts, a determination of whether the 2 ARMANI DA SILVA v. THE UNITED KINGDOM – JUDGMENT force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible. 4. On 28 September 2010 the application was communicated to the Government. 5. On 9 December 2014 a Chamber of the Fourth Section composed of Ineta Ziemele, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Paul Mahoney and Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72 of the Rules of Court). 6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7. The applicant and the Government each filed a memorial on the admissibility and merits of the application. 8. In addition, third-party comments were received from the Equality and Human Rights Commission, which had been granted leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 10 June 2015 (Rule 59 § 3). 10. There appeared before the Court: (a) for the Government Mr P. MCKELL, Agent, Ms C. MONTGOMERY QC, Counsel, Mr J. EDWARDS, Adviser; (b) for the applicant Mr H. SOUTHEY QC, Ms H. HILL QC, Counsel, Mr A. STRAW, Ms H. WISTRICH, Ms M.WILLIS STEWART, Advisers. 11. The Court heard addresses by Ms Clare Montgomery QC and Mr Hugh Southey QC as well as their replies to questions put by Judges Villiger, Pinto de Albuquerque, Lopez Guerra (substitute judge) and Spielmann. ARMANI DA SILVA v. THE UNITED KINGDOM – JUDGMENT 3 THE FACTS I. THE CIRCUMSTANCES OF THE CASE 12. The applicant was born in 1974 and lives in London. She is the cousin of Jean Charles de Menezes, who was shot dead by police officers on 22 July 2005. A. Background 13. On 7 July 2005 four suicide bombers detonated explosions on the London transport network. Three of the suicide bombers were on underground trains and one was on a bus. Fifty-six people, including the four suicide bombers, were killed in the attack and many more were injured. 14. The Metropolitan Police Service (“MPS”) initiated a major police investigation to establish the identities of persons involved in or otherwise connected with the explosions. Available intelligence indicated that terrorists were actively planning a further attack within a matter of days and the threat level posed to the United Kingdom from international terrorism was raised from Level 3 to Level 1. 15. On 21 July 2005, precisely two weeks after the first bombings, four explosive devices were discovered in rucksacks left on three underground trains and on one bus. As it was feared that the failed bombers would regroup the following morning and attempt to detonate further explosions, the MPS immediately launched an operation to find them (Operation THESEUS 2). This operation was led, as Gold Commander, by Police Commander John McDowall. 16. At 4.20 a.m. on 22 July 2005 Commander McDowall was informed that intelligence had identified Hussain Osman as a suspect in the failed bombings of 21 July. Both Mr Osman and another suspect were thought to be living in an apartment at 21 Scotia Road, London. B. Operation THESEUS 2 1. Commander McDowall’s strategy 17. At 4.38 a.m. on 22 July 2005 Commander McDowall decided to mount surveillance operations at both Scotia Road and another London address. The overall aim of the operation at 21 Scotia Road was to establish whether the suspects were present in the apartment and to arrest them safely if they came out. Commander McDowall’s strategy for this operation was not recorded; however, it would appear to have been to control the premises at Scotia Road through covert surveillance, to follow persons leaving the premises until it was felt safe to challenge them, and then to stop them. In 4 ARMANI DA SILVA v. THE UNITED KINGDOM – JUDGMENT order to implement this strategy his plan was that a surveillance team from SO12 (Special Branch) should be in attendance at Scotia Road. They were to be supported by a unit from SO19, a Specialist Crime & Operations branch of the MPS. The unit from SO19 consisted of highly trained Special Firearms Officers (“SFOs”) who were usually deployed on pre-planned operations. Although some surveillance officers were armed for their own protection and that of the public, their training did not enable them to be used as a resource to arrest armed suspects. SO19 would normally undertake this task, although armed officers from SO12 could be used for this purpose as a last resort. 18. The Crown Prosecution Service (“CPS”) Review Note later found that if Commander McDowall’s strategy had been followed (notably, had the team from SO19 been deployed in time to support the surveillance teams at Scotia Road), events would not have unfolded as they did. 2. The command structure 19. Commander McDowall appointed Commander Cressida Dick as the Designated Senior Officer (“DSO”) in charge who was to be responsible for achieving the THESEUS 2 strategy safely. As such, she had responsibility for the operation at 21 Scotia Road on 22 July 2005. She was based in Control Room 1600, where she was supported by Trojan 80, an experienced SFO from SO19 who was acting as her tactical adviser. 20. Detective Chief Inspector C (“DCI C”) was appointed as Silver Commander for the operation at Scotia Road. Although a Silver Commander would normally have ultimate responsibility for the management of an incident and deployment of firearms resources, on this occasion the DSO retained this responsibility and DCI C operated as the DSO’s ground commander. DCI C was supported by and accompanied on the ground by Trojan 84, who, like Trojan 80, was an experienced SFO from SO19 who was acting as a tactical adviser. Trojan 84 was in charge of the SFO team to be deployed and he was in direct contact with Trojan 80. 21. Detective Superintendent Jon Boutcher (“DS Boutcher”), the Senior Investigating Officer for the investigation into the identity of the persons responsible for the bombings on 7 July 2005, was also appointed as a Silver Commander. 3. Implementation of Commander McDowall’s strategy 22. At 5.00 a.m. on 22 July 2005 a surveillance team from SO12 was called out. No request was made at this stage for a unit from SO19. 23. By 6.04 a.m. two surveillance teams from SO12 had been deployed to the Scotia Road address to control the premises and to follow anyone coming out of the apartments. 21 Scotia Road was accessed by the same ARMANI DA SILVA v. THE UNITED KINGDOM – JUDGMENT 5 doorway as 17 Scotia Road and the surveillance teams were stationed in an observation van which had a view of that doorway. 24. The Anti-Terrorist Branch of the MPS (“SO13”) deployed four officers to assist with any arrest and to gain intelligence. DS Boutcher was the link between the Control Room and SO13. 25. At 6.50 a.m. Commander McDowall held a briefing during which the firearms strategy was outlined. Trojan 80 was present at the briefing together with the Silver Commanders for the surveillance operations at Scotia Road and the second London address. The DSO arrived at 7.15 a.m.; however, Commander McDowall spoke to her after the briefing to ensure she had all the information and assistance she needed. 26. As they had not been called out earlier (see paragraph 22 above), SFOs from SO19 were allocated to the operation when they reported for duty. At 7.45 a.m. Trojan 84 briefed the SFOs. The briefing was not recorded but he appears to have told the team that they “may be required to use unusual tactics because of the environment they were in and that they should think about this”.
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