The family of Jean Charles de Menezes is considering taking out a private prosecution against the officers involved in his killing after the Crown Prosecution Service said there was insufficient evidence to charge any of the officers involved.
Instead the office of the Metropolitan Police Commissioner is to be prosecuted under health and safety laws over the death of the Brazilian electrician, meaning that nobody is to be held personally accountable for his death.
Mr de Menezes was shot shot seven times in the head by anti-terror officers at Stockwell Tube station in south London on July 22 last year after being mistaken for a suicide bomber.
Stephen O’Doherty, from the CPS’s Special Crime Division, said today that they had considered charges of murder, manslaughter and forgery, but there was not enough evidence to bring a prosecution against any of the individual police officers involved in the fatal shooting.
He said that he was convinced the officers who fired the shots did so believing that Mr de Menezes was a suicide bomber who was about to detonate a bomb and kill "many people".
Mr de Menezes's family said that they found the decision "unbelievable" and were looking at the possibility of a private prosecution.
Speaking at a press conference today the family’s lawyer, Harriet Wistrich, said: "The family need to hold somebody accountable for this death. It is not a health and safety issue, it wasn’t food poisoning, it didn’t happen on a building site.
"We will be looking at all avenues to pursue this case including a private prosecution against individual police officers. There are so many questions that remain unanswered."
Scotland Yard said that it supported the decision not to prosecute any officers. It added however that it was "concerned and clearly disappointed" at charges under health and safety laws, but said that the force would continue with its shoot-to-kill policy on suicide bombers.
In his statement, read out at CPS headquarters in London, Mr O’Doherty, added that the Code for Crown Prosecutors states that before a prosecution can commence, there must be a realistic prospect of conviction.
He said: "In order to prosecute those officers, we would have to prove, beyond reasonable doubt, that they did not honestly and genuinely hold those beliefs.
"In fact, the evidence supports their claim that they genuinely believed that Mr de Menezes was a suicide bomber and therefore, as we cannot disprove that claim, we cannot prosecute them for murder or any other related offence."
Mr O’Doherty said that while he found that there were many mistakes in the police operation, they did not amount to enough to bring charges.
"Mr de Menezes was not a suicide bomber. I therefore considered the actions of all those involved in the operation to see how it was that an innocent man came to be mistaken for a suicide bomber.
"I concluded that while a number of individuals had made errors in planning and communication, and the cumulative result was the tragic death of Mr de Menezes, no individual had been culpable to the degree necessary for a criminal offence.
"But I am satisfied that there is sufficient evidence to prosecute the Office of Commissioner of Police for an offence under sections three and 33 of the Health and Safety at Work Act 1974 of failing to provide for the health, safety and welfare of Jean Charles de Menezes on July 22 2005."
The family of the 27-year-old said today that the CPS decision not to prosecute individuals to prosecute under health and safety laws did "not make any sense".
Patricia da Silva Armani, Mr de Menezes’ cousin, said through an interpreter: "We did not expect they were going to hide behind another law that has nothing to do with my cousin’s case. I am very disappointed.
"I was expecting a negative reply and it is shameful. By using these laws to cover up their own mistakes, they are treating my cousin like a dead animal."
Ms Wistrich added: "We will shortly be meeting with a delegation from the Brazilian government to assess what we can do from here.
"It’s disappointing in the letter of explanation that areas are unclear as to why certain charges can’t be brought. Particularly it’s very hard to understand why no police officer will face charges.
"The family have not seen any evidence as to how the CPS came to this decision. We are not prepared to accept that this is a health and safety issue.
"Who pays if the Met police is fined as a result of these charges? It’s the taxpayers. Is that really what we want at the end of the day?
"The eyes of the world are on Britain and they want to see British justice not only done but seen to be done."
She said the family, who also wanted to know why charges of gross negligence had not been considered, wanted an inquest to go ahead so they could listen to the officers give evidence about what happened.
If found guilty of breaching HSE laws the Metropolitan police would face an unlimited fine - which the family say would be an "absolutely inadequate" penalty.
The CPS said that a log book detailing the events of the fateful day was submitted for forensic examination to see if it had been altered, and if so, by whom. Two experts looked at it, Mr O’Doherty said, but could not agree whether there had been an alteration or, if there had been one, who may have done it, which meant there could be no prosecution.
A spokeswoman for the Independent Police Complaints Commission said they would publish its full report "as soon as legal considerations allow" and that questions of any disciplinary action against any officer will be considered in due course.
The coroner would also consider whether an inquest planned to begin on September 7 can now proceed.
Glen Smyth, the Chairman of the Metropolitan Police Federation, told BBC News 24 that it was right that officers’ actions on that day did not amount to criminal behaviour.
Mr Smyth said: "The Metropolitan Police have said they take responsibility, but responsibility does not necessarily amount to criminal conduct."
In its statement Scotland Yard apologised again for the tragedy. It added: "While we still need to consider carefully any disciplinary matters we are pleased for the officers and their families who have faced much uncertainty over the last year. The actions of Commander Cressida Dick and the other officers have been the subject of much scrutiny and public debate and they deserve our continued support at this time.
"However, we are concerned and clearly disappointed at today's decision to prosecute the Metropolitan Police Service for breaches of health and safety. Despite the uncertainty this prosecution will create we will not shrink from our key role of protecting public safety. Officers involved in tackling terrorism operate in one of the most challenging environments within the MPS and they deserve our full support.
"Clearly we and our national police colleagues will need to consider issues raised by this prosecution and for the implementation of the Kratos (anti-terrorism) policy, which has already been the subject of extensive review since 22 July. We believe it remains a legitimate policy and, in the absence of a viable alternative, we will continue to use it where necessary to protect London and Londoners from any threat posed by suicide bombers."
