In the Media

Met faces unlimited fine over de Menezes death

PUBLISHED July 18, 2006

A series of blunders culminating in the shooting of Jean Charles de Menezes mean the Metropolitan Police will find it extremely hard to prove it fulfilled its duties to public safety, lawyers have warned.  
One leading health and safety lawyer told Times Online this morning: "The police appear to have committed a catalogue of errors in their operation to apprehend Jean Charles de Menezes. In this light, it will be extremely difficult for them to defend an accusation of a health and safety breach."

The Crown Prosecution Service highlighted mistakes which occurred on the day of Mr de Menezes shooting in its decision to refer the incident for a health and safety prosecution.

Stephen O?Doherty, the senior reviewing lawyer for the case at the CPS, today said that a number of individuals had made "errors in planning and communication" in the operation that led to Mr de Menezes? death.

If convicted, the Metropolitan Police faces an unlimited fine and opens itself up to a civil damages claim from Mr de Menezes? family, which is almost certain to follow.

The prosecution will probably be brought under Section 3 of the Health and Safety Act 1974, which extends an employers? liability for the health and safety of its own employees onto non-employees as well.

Any prosecution against the Met is likely to claim, under Section 3 of the Health and Safety Act, that the Police did not "do all that was reasonably practicable" to ensure the health and safety of the public during their anti-terror operations.

Once a company or employer has been accused of this kind of health and safety breach the burden of proof falls on the employer to prove that it acted appropriately which lawyers warn will be very difficult in the case of the de Menezes shooting where operational mistakes have already been uncovered.

Health and Safety legislation is typically used in situations where employer negligence leads to injury or death among members of the public in industrial or construction-related situations, for instance, passers-by being injured during an accident at a chemical plant or building site

Prosecutions are brought by the Health and Safety Executive, an agency of the Health and Safety Commission, the government body responsible for health and safety issues in the workplace, which is sponsored by the Department for Work and Pensions.

Previous prosecutions have led to multi-million pound fines for British companies including Transco, the gas business fined ?15 million by a Scottish court last year.

The record fine was delivered at the end of a prosecution after the deaths of a family of four in a gas explosion at their home. The High Court in Edinburgh found Transco guilty of a "plain failure to ensure public safety" and said the company should be held responsible for the family?s death.

The largest penalty given out by a English court was a ?10 million fine on Balfour Beatty, the engineering contractor, for breach of health and safety rules in relation to the Hatfield rail crash which killed four people in 2000. The fine was reduced to ?7.5 million on appeal.

Other significant fines include a ?2 million penalty for Thames Trains for the Ladbroke Grove crash in 1999 and ?1.2 million for Balfour Beatty for the Heathrow tunnel collapse in 1994.

The case will not be the first time the Metropolitan Police has been prosecuted under health and safety laws.

However, the only previous case relates to its own employees rather than members of the public. Lord Stevens and Lord Condon, two former Met commissioners, stood trial in 2003 over claims they had failed to protect two police officers who fell through a roof whilst chasing suspects. The two men were cleared after a jury failed to reach a verdict - prompting criticism of the HSE, which brought the prosecution, for wasting public money.

Following that case the laws were changed so that chief constables can only face prosecution as individuals if they can be shown to be personally linked to a health and safety breach. For this reason, the de Menezes case will be against the Office of the Commissioner of the Metropolitan Police rather than the Commissioner himself.