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Friday, December 12, 2008
The De Menezes verdict

I have just heard the verdict of the jury in the De Menezes inquest. This is how the Guardian reports it
The jury at the inquest into the death of Jean Charles de Menezes today rejected Scotland Yard's claim that he was lawfully killed as part of an anti-terrorism operation.

Banned by the coroner, Sir Michael Wright, from returning a verdict of unlawful killing, the five men and five women returned an open verdict – the most critical that was available to them.
Not much of a surprise, then, given the coroner's instruction. I wonder what other instructions the jury was given. It looks at first glance as though the jury have returned the most critical verdict available to them
In a series of answers to a list of crucial questions, they dismissed the testimony of the senior firearms officer who shot De Menezes, suggesting they did not believe that he was acting in self defence.
But I think the jury were perhaps unfairly - and perhaps illegally - directed. Many years ago, I attended most of the inquest into the 'Friendly Fire' deaths of nine British soldiers killed by US airmen, during the First Gulf War. Here is what I blogged subsequently
After the Gulf War, the inquest on nine British soldiers killed in the notorious friendly fire incident returned a verdict of ‘Unlawful Killing’. Under normal circumstances, such a verdict would result in a criminal prosecution. The report on such a prosecution seems to have escaped me.

Geoffrey Robertson, appearing on behalf of the bereaved families, showed that the procedures used for confirming target references, even given the technology available at the time were a total mess. In a ‘normal’, e.g. commercial, environment, the officers responsible for such a mess would be out on their ears…

…At the inquest, the MoD claimed that it was important to maintain secrecy about procedures. This was to prevent interference by the enemy in the target identification process. So it was all right to use sloppy procedures which, besides making target finding open to human error, was quite likely to lead to tragedy….

…The coroner was generally scathing about the Ministry of Defence’s conduct in the matter.
There was a lot of discussion at the time as to what verdicts were available to the jury; these included 'Unlawful killing, 'An open verdict', 'Accidental death', and 'Lawful killing'. However, it was generally agreed - with the jury being instructed accordingly - that they were completely unfettered and could have devised their own verdict, using their own wording, had they so desired.

When I compare the two situations, it would appear that there was even more culpability in the case of De Menezes than with the 'Friendly Fire' incident: both involved mistakes amounting to more than criminal negligence.

While an open verdict is clearly – and rightly – implicitly critical of members of the Metropolitan Police, it does not carry the force of 'Unlawful killing'.

During the 'Friendly Fire' inquest, Geoffrey Robertson several times blatantly disregarded instructions from the coroner. Perhaps you have to be an eminent human rights barrister to be able to get away with such disobedience; it would have been a powerful blow for British justice had the de Menezes jury been similarly bold.

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