ABSTRACT
On 22 July 2005, officers of London’s Metropolitan Police shot dead an innocent Brazilian, Jean-Charles de Menezes, on the Underground. They had mistakenly believed him to be a suicide bomber. Although the police force was successfully prosecuted under health and safety legislation for the death, no prosecution for a serious homicide offence was attempted against either the force or individual police officers. The shooting dead, seemingly without warning, of an innocent man on the London Underground by armed, non-uniformed, police officers has a chilling quality. It is no doubt the case that suicide bombing presents new challenges to policing, but there have been other cases of innocent people, such as Harry Stanley (Crown Prosecution Service 2005a), being shot dead. Even with suspected suicide bombers, the police cannot enjoy carte blanche, yet the fact remains that these cases have not been subjected to the check or oversight that serious criminal charges should bring. The Crown Prosecution Service for England and Wales (CPS) declined to
mount a prosecution in the de Menezes case on the view that there was not a realistic prospect of conviction (Crown Prosecution Service 2006). This essay considers why the CPS should have taken this position, and the state of the English law of mistaken self-defence that made it possible. In the process, attention is given to the law’s underlying structure of offence and defence, and justification and excuse, and how it operates differentially in different moral and social contexts. This permits us in turn to consider the nature of citizenship in a modern Western society, as reflected in its legal categories. The shooting dead of unarmed citizens raises concerns about the nature
of police powers and the role of the state with regard to the citizen. In terms of modern critical criminal justice scholarship, it suggests the kind of development in criminalisation and citizenship that one associates with the shift from a social democratic to a neo-liberal form of government (Garland 2001; Simon 2007). It suggests, indeed, a weighting of citizenship concerns away from the classical model of the liberal rights-bearing subject and toward forms of state authoritarianism (Ramsay 2006; Ashworth and Zedner 2008). On its face, the decision not to prosecute police officers looks like an acceptance of current trends toward the diminution of citizenship liberties in favour of the recognition that there are
individuals or groups, such as ‘terrorists’, who, lacking the essentials of citizenship,1 are regarded as beyond the pale. I do not want to deny the importance of such broader structural currents in the
understanding of citizenship, or that these affect and shape the criminal law today. I do, however, want to sound a note of caution with regard to the analysis of cases involving police shooting in terms of a simple opposition between liberal and authoritarian terms. In such cases, it is difficult to prosecute on serious criminal charges, but not necessarily because of a shift to authoritarian legal standards governing the criminal law. Rather, it is the law of mistaken self-defence, reformed 25 years ago in what was then argued to be a principled liberal way, that is the problem. By ‘liberal’, I mean a form of law reflecting a sense of citizenship that is respectful toward individuals and socially inclusive in its form. The paradox is that it is this form of liberal-inflected, citizenship-respecting, law that informs the English law of mistaken self-defence and that has contributed to the difficulty in prosecuting police officers in these cases. Accordingly, if we want to understand the failure of the criminal law to control
the use of guns by armed police officers on our streets, it will not be enough to argue that we have shifted from liberal to authoritarian modes of governance, although that may be part of the overall picture. Rather, it will be necessary to understand the logic and dynamic of liberal criminal law, and its complicity in permitting the police use of firearms without proper checks. It is as much the classic liberal conception of citizenship as it is reflected in law that needs to be examined as shifts in a non-liberal direction. This essay is concerned, then, to provide a more complex understanding of the relationship between the classic liberal conception of citizenship and the nature of state authoritarianism insofar as the former informs the present law of mistaken self-defence in England and Wales, and permits the shooting of unarmed and innocent citizens to occur without an appropriate checking mechanism through the criminal law. This chapter has four sections. In the first, I outline the debate in England
concerning the proper test for mistaken self-defence and introduce the idea that a normative chiasmus lurks unattended at the law’s core. Outlining the implications of this argument, I then proceed in the second section to explore attempts to deal with it. Arguing that these are inadequate, I then investigate why the chiasmus should exist, drawing on Kent Greenawalt’s (1984) analysis of the ‘perplexing borders’ of justification and excuse in the criminal law. In a brief final section, I consider the implications of the analysis for our understanding of the law and its relationship to the idea of liberal citizenship.
