The family of Jean Charles de Menezes vowed yesterday to continue their battle to bring criminal charges against the officers involved in shooting him dead after prosecutors ruled there was insufficient evidence to go to trial.
The Crown Prosecution Service instead decided to prosecute the Metropolitan police under health and safety laws for the killing of the innocent Brazilian man who was mistaken for a suicide bomber at a London underground station last July.
The Met will today be served with a summons alleging the force breached the duty of care it owed Mr de Menezes. The summons, obtained yesterday afternoon from Horseferry Road magistrates court, launches the first prosecution of its kind.
Mr de Menezes's family branded the decision not to pursue murder or manslaughter charges "shameful", and said they would consider challenging it in court and pursuing a private prosecution.
Patricia da Silva Armani, the cousin of the 27-year-old electrician, said: "By using this law to cover up their own mistakes, they are treating my cousin like an animal. I feel sickened by that."
If convicted of failing in its duty, the Met faces an unlimited fine. But the case is unlikely to start this year, further delaying the Menezes family's quest to find out why he was shot eight times. A year after the shooting on July 22 2005, they say they have not seen any evidence from the Independent Police Complaints Commission, which investigated his death.
In a statement, CPS senior lawyer Stephen O'Doherty said: "The two officers who fired the fatal shots did so because they thought that Mr de Menezes had been identified to them as a suicide bomber and that if they did not shoot him, he would blow up the train, killing many people." To prosecute, the CPS would have had to prove that the officers did not believe Mr de Menezes was a terrorist.
The CPS also concluded that Commander Cressida Dick, who was in charge of the operation, should not face charges. The unpublished IPCC report is understood to be strongly critical of the lack of clarity in her orders, and she may yet appear before a disciplinary hearing.
The CPS also said there would be no prosecution over allegations that officers tampered with an official log to cover their tracks about how and when Mr de Menezes was identified as a suspect.
Harriet Wistrich, a solicitor for the Menezes family, said the CPS's reasoning was flawed and there were inconsistencies in officers' evidence which could undermine their claims to have been acting in self-defence. Ms Wistrich said officers claimed to have issued a warning to Mr de Menezes before opening fire on a tube carriage, but passengers had not heard one.
The IPCC refused to discuss the detail of the claims.
The Met deputy commissioner, Paul Stephenson, repeated the force's apology to the Menezes family. But in a statement the force attacked the prosecution decision: "We are concerned and clearly disappointed at today's decision to prosecute [the Met] 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."
London's mayor, Ken Livingstone, supported the force: "I doubt that al-Qaida will be considering the implications for health and safety legislation when they are planning their terrorist activities. Health and safety legislation was simply not drawn up to deal with policing a city facing the terrorist threat of July 7."
The Labour peer Lord Harris, a former chairman of the Metropolitan Police Authority, said the decision to prosecute under health and safety law was "a ridiculous cop-out, which will satisfy no one".
A second IPCC investigation into whether the Met commissioner, Sir Ian Blair, and his force told the truth after the shooting is still to be completed.
Scotland Yard said the shoot-to-kill policy for terror suspects would remain in place, and the two officers could be returned to frontline duties within days.
Is Sir Ian Blair off the hook?
No. The pressure on Sir Ian, the Metropolitan police commissioner, will continue until the end of the prosecution of the force under health and safety laws, which is likely to be followed by the release of the Independent Police Complaints Commission report into the shooting. Mr Blair also faces criticism in a second IPCC report into his actions in the aftermath of the shooting. This inquiry is examining claims that he misled the public about the events when he gave a TV interview the morning after the shooting praising a "fantastic investigation and a fantastic response" even though senior officers knew within hours that officers had shot the wrong man.
What can the family of Mr de Menezes do now?
The family are considering applying to the high court for a judicial review of the decision yesterday by the Crown Prosecution Service not to prosecute any individual officers. They may also attempt to stage a private prosecution and press for an inquest to take place before the health and safety prosecution which will be going through the courts. They also have the option of suing the Met for damages.
Could there be disciplinary action against any officers?
Met commander Cressida Dick, who was in charge of the firearms unit on the day Mr de Menezes was shot, could potentially face a disciplinary charge. Any officer who was involved in the alleged alteration of the surveillance log on the day could also face a disciplinary charge, although the CPS made it clear that possible forgery charges had been examined, but forensics experts had been unable to tell who might have doctored the record.