Lawyers acting for the family of Jean Charles de Menezes are to mount a legal challenge against the decision not to charge individual officers involved in the shooting, concluding that a review of available evidence 'justifies a prosecution for murder'.
Tomorrow the Crown Prosecution Service will receive a letter from lawyers at Birnberg Peirce raising serious misgivings over the decision to level health and safety charges at the Metropolitan Police over the shooting. The letter claims that prosecutors should have considered murder 'or at the very least gross negligence manslaughter ... the choice of the health and safety charge falls foul of the reasoning.'
Birnberg Peirce carried out a 10-week review of the CPS decision and will press for a judicial review of the decision not to level criminal charges at individual officers involved in the shooting.
The 27-year-old Brazilian electrician was shot nine times in the head after being mistaken for a suicide bomber at Stockwell tube station in south London on 22 July last year.
'Moreover the fundamental question of how the operation, which it is understood was intended to stop and detain Mr de Menezes, became one which resulted in him being stopped and killed has not been answered. At the very least this raises a prima facie case of gross negligence manslaughter, which [CPS lawyers] has entirely failed to address,' says the letter from the family's lawyer Harriet Wistrich.
In addition, Birnberg Peirce will apply for a separate judicial review against the decision not to disclose the Independent Police Complaints Commission report into the shooting to the de Menezes family. The report catalogues a number of 'operational errors' that led to the mistaken shooting.
The letter, dated 29 September, notes concerns among family lawyers over claims from the officers who shot Mr de Menezes that he was wearing a 'bulky' jacket rather than the 'simple denim jacket' which he in fact was. Wistrich also referred to the lack of witnesses among tube passengers to corroborate claims that officers shouted 'armed police' before they began firing.
'This evidence plainly, on an objective test, provides prima facie evidence that the officers were lying as to the presentation of de Menezes before them such as justified them in shooting and killing him; and as to their actions immediately before they did so.'
The letter says that a jury might conclude that the officers 'did not honestly hold the belief that at the time they saw him (whatever they had erroneously been told earlier) he was a suicide bomber about to act'.
It adds that the CPS was wrong to 'conclude that a jury would not be likely to reject self-defence on the basis that Mr de Menezes was forced back into his seat and restrained before he was shot - which again evidences a usurping of their function'.
Questions are also raised as to why only one of the 17 witnesses in the tube carriage seemed to support the impression that Mr de Menezes was a terrorist, describing how the Brazilian appeared to reach 'into the left hand side of his trouser waist band'.
The Birnberg Peirce letter adds: 'Again it is surely for the jury to assess whether this one witness does provide sufficient support for the officers' account to make out self-defence (compared with what the other 16 witnesses say).'
The Birnberg Peirce letter also says that no justification has been offered by CPS lawyers for the 'excessive force' used in the killing of Mr de Menezes.
'It is for the officers to show that each and every shot was reasonable/absolutely necessary.
'A failure to justify such force would make out an assault and therefore a clear basis for an unlawful act manslaughter charge,' states Wistrich.
A spokesman for the family said: 'We are bringing these judicial reviews because we believe the IPCC and CPS have failed their responsibilities. The criminal justice's system's response has been a complete failure'.
Earlier this month, the Metropolitan Police formally entered a plea of not guilty to the charge that it failed in its duty of care to Mr de Menezes.
The Metropolitan Police could face an unlimited fine if found guilty.