CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 avril 2001

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Costa , President ,   Mr   L. Loucaides ,   Mr   P. Kūris ,   Sir   Nicolas Bratza ,   Mrs   H.S. Greve ,   Mr   K. Traja ,   Mr   M. Ugrekhelidze , judges , and   Mrs   S.   Dollé , Section Registrar , Having regard to the above application introduced on 22 March 1999 and registered on 25 February 2000, Having deliberated, decides as follows:                     THE FACTS The applicant is a British national, born in 1946 and living in Prudhoe. He is represented before the Court by Mr D. Johnson, a solicitor practising in Newcastle upon Tyne. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. James Frederick Brady, the son of the applicant, died on 24 April 1995 having been shot by an armed police officer at Westerhope Excelsior Working Men’s Club (‘WEWM’) in Newcastle. The background to the shooting is described as follows, the details largely taken from the evidence given at the inquest. The planning of the operation At approximately 7.45 p.m. on 23 April 1995, an Inspector Fullerton contacted Police Superintendent Jean Austin, with information which he considered to be ‘reliable’ and which had been received from a registered informant. The applicant claims that DC Reay of the Crime Team South of Northumbria police was aware of this information on 19 April, but only passed on the information to a more senior police officer on 23 April 1995. The information was that Alan Barker and the deceased, James Brady, were planning a ‘tie-up’ robbery that evening at the WEWM after midnight. The plan was forcibly to enter the residential steward’s house adjacent to the club and, with the aid of an imitation firearm, to tie-up the steward’s father and cause the steward to open the safe and hand over the cash contents. On the strength of this information, Superintendent Austin decided to target a Firearms Operation on the Westerhope club that evening with the purpose of protecting the occupants of the steward’s house, protecting the officers involved in the operation and effecting the arrests of those involved in the planned offence. Superintendent Austin thereafter held several briefings with the firearms unit and was assisted by two senior trained firearms officers, PS Palmer and PS Davidson. The first briefing was at 9 a.m. The police officers on the operation were instructed to treat all imitation firearms as if they were real firearms unless and until proven otherwise. In particular, Superintendent Austin pointed out that Brady had received training in the army, and read out the record of Alan Barker which detailed that a sawn-off shotgun had been found in the bathroom of his house. By the time of the first briefing, the police were in receipt of further information about the robbery which was planned. They were now aware that James Brady, Alan Barker and one other man planned to enter the steward’s house via a downstairs kitchen window, before proceeding upstairs to commit the robbery. The imitation firearm which they would be carrying would possibly be a starting pistol. The amount of money involved was estimated to be between eight and ten thousand pounds. The police discussed the following options at the briefing which was tape recorded: A – an armed ambush inside the club. This would involve placing 5 armed police officers at various vantage points inside the club. When the last intruder had entered the kitchen window and stepped onto the floor, the ambush team leader (PC Davidson) would call a ‘strike’. Accordingly, the lights of the premises would be switched on together with a shout of the warning ‘stand still armed police’. The armed officers in the premises would come from behind closed doors of the kitchen with weapons drawn and would stop and apprehend the intruders. A second team of firearm officers (the backup team) would arrive outside the premises to prevent any intruders escaping from the premises. The backup team would move on the strike being called from within the house. It was estimated that they were less than a minute away from the scene. B – a ‘blow-out’ consisting of swamping the club and the surrounding area with a high police presence. This high profile policing would be intended to have the effect of discouraging the intruders from making entry at all, thereby preventing the robbery and protecting the safety of the steward and his father. C – arresting the intruders at their home addresses prior to the commission of the robbery. Options B and C were rejected. Option B was rejected because the Superintendent considered that even though it would prevent the robbery that night, the suspects may return at a later date or decide to rob another club. Further, it was decided that it was better to pick up the men at night and get them off the streets as they were dangerous and carrying firearms. Option C was rejected because of the possibility that there would not be sufficient evidence to mount a successful criminal prosecution against the potential intruders. At 10.45 p.m., a briefing was held with the firearms officers, at the conclusion of which the guidelines for the use of minimum force were read out. The execution of the operation Covert surveillance officers were deployed along the route to the club. The backup team of police officers was on standby in the near vicinity of the club, and armed officers took their place inside the club before midnight on 23 April 1995. All the police officers were in their places by midnight. At 2.30 a.m., four people, including James Brady and Alan Barker, were seen to make their way along the route to the club. They were wearing dark clothing, gloves and ski-masks. They waited outside the club for 50 minutes before making an entrance, during which time they were observed. The applicant claims that the officers inside the club were made aware via radio communications of exactly what was going on. They were informed that there were more potential intruders than originally expected (four instead of the original two or three). At approximately 3.20 a.m. the intruders broke in via the ground floor window as expected. The team leader PC Davidson called the strike when the third person had entered the kitchen window, and not when all the intruders had entered the kitchen, as planned. He explained in his statement that he did not consider it safe to allow all the intruders to enter into the hallway. He called the strike as the door from the kitchen to the hallway was pushed three quarters open. He switched on the lights and shouted “Armed police. Stand still.” He heard other officers shouting “Armed police.” One of the police officers, PC Bell, who was meant to have been standing by a door just off the kitchen where the intruders would be entering was not in position. He later gave a statement to the police to the effect that the team leader had called the strike before he and his colleague Officer A were in position. Officer A and PC Bell said that when they entered the kitchen, the fourth intruder was still entering the window. Officer A said that he saw a threatening movement from James Brady that he interpreted as a threat to his life. At the subsequent inquest, Officer A said that he thought Mr Brady had a gun in his hand which he pointed at the officer. The officer said he discharged his firearm in self-defence, thereby killing James Brady. PC Bell also testified that he considered the deceased to be a threat. The autopsy revealed that the bullet entry wound was on the right side of the chest and that the bullet travelled in a downwards direction to exit from the chest wall on the left side. The pathologist who conducted the post mortem stated that this was consistent with Officer A’s description of the deceased as turning towards him at the moment at which he fired. A small black torch was found under or near the deceased’s body. Alan Barker in his statement later to the police said that James Brady had been carrying a small black torch when he entered through the kitchen window and had switched it off before the police entered the kitchen. The deceased’s accomplices, upon hearing the shot, all fled from the club premises. None were caught at the scene. The backup team failed to arrive at the club to prevent any of the intruders escaping from the scene. The deceased’s accomplices were arrested the next day. The police found an imitation firearm near the scene (a starting pistol), which was incapable of firing live rounds. The Inquest The inquest into Mr Brady’s death took place at the Newcastle Coroners Court between 7 September to 24 September 1998. Several police officers gave evidence, including Officer A and PC Bell who were the only persons present when the shooting occurred. Both testified that they considered the deceased to be a threat because of a dark object in his right hand. Although they considered it to be a firearm, it later transpired that it was a small black torch. Officer A considered that he had only seen one intruder in the kitchen, even though there had in fact been 3 intruders. Further, he over-estimated the distance between himself and the intruder, could not recall how many times a colleague had shouted and could not recall when certain lights were put on.    PC Bell thought that the shot that was fired had been discharged by one of the intruders; he described the sound as a ‘phut’ rather than as a loud bang. Evidence was adduced during the inquest to the effect that the police had received some total darkness training and ‘torchlight training’ to aid them to assess danger in restricted lighting conditions. However, Professor David Alexander, Professor of Mental Health at the Medical school of Aberdeen University, took part in a reconstruction of the circumstances surrounding the shooting and testified that he had no difficulty in understanding why Officer A fired his weapon. In his view, the combination of high level stress and low illumination led to a number of genuine misperceptions by the subject officer under the syndrome known as ‘visual perception distortion’. The officer’s genuine concerns about his safety (from his knowledge of the potential use of firearms by the intruders) also contributed to this misperception. The jury returned an open verdict and therefore failed to find definitively that the deceased had been unlawfully killed by Officer A. In a letter dated 20 December 1999, the Crown Prosecution Service informed the applicant that it had been decided not to prosecute Officer A on the basis that there was insufficient evidence of any crime having been committed. It also found no basis for pursuing any other officer for gross negligent manslaughter or misfeasance in public office. B.     Relevant domestic law and practice Section 3 of the Criminal Law Act 1967 provides inter alia : “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.” Self-defence or the defence of others is contained within the concept of prevention of crime (see e.g. Smith and Hogan on Criminal Law). COMPLAINTS The applicant complains under Article   2 of the Convention that his son’s right to life was violated. 1.     The applicant’s main submission is that if the police had wanted to prevent the robbery, they could have arrested the deceased beforehand. Their decision to adopt an ambush approach was based on the fact that they wished to gather sufficient evidence to prosecute the suspects. It was this decision which brought about the circumstances in which the deceased’s life was put in danger. The applicant submits that these dangers were unjustifiable under Article 2, as ‘absolutely necessary’ implies action short of allowing activities to progress to a state of danger in order to secure evidence for a successful prosecution . The applicant submits that the whole firearms operation was grossly negligent and incompetently planned. He claims that no proper or adequate assessment was given as to the risk to the life of the deceased, even though the police knew about the proposed robbery some 4 days before the incident and could have planned ahead, instead of just 6 hours before the incident. Further, he claims that those planning the operation failed to have regard to the inevitability that lethal force would be used. The deployment of armed officers in darkness in a confined space, to ambush intruders coming through a narrow kitchen window had inherent and obvious dangers. There was a significant risk of the intruders feeling fear, and panicking at being surprised. It was thus wholly foreseeable that the armed officers, upon seeing such movements would fear for their own personal safety and would therefore discharge their weapons with fatal consequences. The applicant submits that the use of lethal force was a direct result of the ambush strike being called too early by PC Davidson, who changed his plan as to when the strike was to be called without communicating this fact to the officers under his charge. He originally planned to call the strike when all the men went through the kitchen window, walked through the kitchen and had entered the hallway. Because of the change in the number of intruders he called the strike much earlier, before the intruders came through the doorway of the kitchen and the hallway of the club. His early calling of the strike was before PC Bell and Officer A were in their positions for the ambush. 2.     The applicant submits that the resort to lethal force was not absolutely necessary as James Brady was in fact unarmed and posed no threat to the life of the police officers. THE LAW The applicant complains that his son James Brady was unjustifiably killed by a police officer during a covert surveillance operation. He invokes Article 2 of the Convention which provides: “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” 1.     General principles Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147). In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances, including such matters as the planning and control of the actions under consideration. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (the McCann judgment, cited above, §§ 148-149). In determining whether the force used is compatible with Article 2, it may therefore be relevant whether a law enforcement operation has been planned and controlled so as to minimise to the greatest extent possible recourse to lethal force or incidental loss of life (see the McCann and Others judgment, cited above, p. 57, § 194, and the Ergı v. Turkey judgment of 28   July 1998, Reports of Judgments and Decisions 1998-IV, pp. 1776-1777, § 79). Application to the present case The actions of Officer A The Court recalls that Officer A had been informed that imitation and possibly genuine firearms might be used on the planned robbery at the WEWM and that he had been instructed to treat all apparent firearms as real unless and until proved otherwise. When Officer A entered the kitchen to commence the arrest operation of the persons breaking into the premises, he thought James Brady had pointed a gun at him and he fired in self-defence. PC Bell, the only other police officer on the scene, also gave evidence that he had perceived James Brady as a threat. A medical expert gave his opinion at the inquest that due to the stress of the operation and the poor lighting in the room, Officer A’s mistake was explicable as ‘visual perception distortion’. It is not disputed that a torch was found near the deceased and that he had probably been carrying it in his hand before the shooting. The Court finds, on the material submitted by the applicant, that Officer A honestly believed that it was necessary to shoot James Brady in order to protect himself. This belief derived from good reasons, perceived at the time to be valid, which were later shown to be mistaken. It is not for the Court with detached reflection to substitute its own opinion of the situation for that of a police officer who was required to react in the heat of the moment (see, mutatis mutandis , the Andronicou and Constantinou v. Cyprus judgment of 9   October 1997, Reports 1997-VI, p. 2107, § 92). The Court notes that the applicant himself appears to accept that Officer A’s actions were not indefensible as, in his submissions concerning domestic remedies, he considered that the DPP’s decision not to prosecute could not be regarded as perverse or irrational as Officer A had been placed in a situation in which his life was at risk. The planning and execution of the arrest operation The applicant has argued that the operation was not planned in such a way as to minimise the risk of using lethal force, in particular, as the police officers were placed in an ambush-type scenario in an enclosed space. It appears however that the police considered the various options open to them in the light of the information about a planned robbery at the WEWM. The Court finds that the decision not to arrest the men until they attempted to enter the premises cannot be regarded as unreasonable in the circumstances. If there had been insufficient evidence of a crime having been committed, there would have been no possibility of bringing criminal charges or a prosecution. Nor is the Court persuaded that the plan in itself rendered the use of lethal force either inevitable or highly probable. In any circumstances, an arrest planned against robbers who are armed or suspected of being armed will involve some risk that shooting will take place or that police officers will find themselves in a position in which they believe that their lives are in danger. While it appears that the team leader called for the arrest at an earlier moment than planned and before the others were in position, the Court does not find that this rendered the execution of the operation incompatible with the requirements of the Convention. Operations of this kind inevitably require a certain amount of flexibility of response to evolving circumstances. Errors of judgment or mistaken assessments, unfortunate in retrospect, will not per se entail responsibility under Article 2 of the Convention. Though the police gave express consideration during their briefing to safeguarding the lives of the persons living in the building and to the threat posed to themselves due to the possibility of the robbers being armed, the Court does not find any indication that the planning or execution of the operation was thereby conducted in disregard to the lives of the suspects. There is nothing to suggest that the police officers were not intending to carry out an arrest, as was the stated purpose of the operation. Notwithstanding therefore that the operation could have been executed more efficiently at least in theory, the Court considers that the main causative factor in lethal force being used against James Brady was Officer A’s belief that the deceased was pointing a gun at him. No element of planning or control has been identified as responsible for Officer A’s actions in that respect. This case must be distinguished from the McCann case, where the soldiers had been given erroneous information which led them to believe that the three IRA suspects were about to detonate a bomb, where the soldiers’ automatic recourse by training was to rapid, intense firing and where there had been a decision by the authorities to allow this apparently highly dangerous situation to develop by permitting the suspects to enter a densely populated area with a suspected explosive device (judgment cited above, §§ 212-213). Conclusion The Court concludes that the use of lethal force in this case may be regarded as “absolutely necessary” for the purpose of defending persons, in particular Officer A, from unlawful violence within the meaning of Article 2 § 2(a). The applicant’s complaints must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court by a majority Declares the application inadmissible.   S. Dollé   J.-P. Costa   Registrar   President