Michael Wright [the judge] said the jury, which has spent about two months hearing evidence about the botched police operation which led up to de Menezes' death on July 22, 2005, could only return "open" or "lawful killing" verdicts.That is no matter what they thought of the case they could not say that the shooting of an innocent man seven times in the head by one police officer while he was "bear-hugged" by another police officer was unlawful.
Now why should that be?
All interested persons agree that a verdict of unlawful killing could only be left to you if you could be sure that a specific officer had committed a very serious crime: murder or manslaughterCan that be true? There is such a thing as corporate manslaughter and so any serious negligence by the "company" ie the police, could have amounted to manslaughter. But there is also the fact that there were clearly two officers involved in, first the restraining and then, the shooting of De Menezes. Given that the killing could be lawful or unlawful, the latter, on the part of either "specific officer" or both specific officers, as far as the evidence went, was a possibility for the jury to decide on. I'm sure there have been cases where two or more people have been convicted of the same one murder.
Ok, suppose I'm wrong. Suppose that more than one person cannot be charged with the same one murder. Surely there have been cases where inquests have decided that a person has been murdered but the inquest has not determined who the murderer was. Ultimately the judge is saying that the jury cannot decide at will. But the "reasoning" is that the jury cannot decide on any unlawfulness of the killing itself without pointing a finger at one specific officer and that this is where the difficulty lies. Now since the officers involved were present at the inquest and there is no question mark over the fact that they killed De Menezes, the jury could have said that one or both of those officers unlawfully killed De Menezes.
My thoughts are still unfolding on this. It occurs to me that the jury could have even reached a verdict that exonerated the officers but held the police, as a corporation, culpable.
But the inquest is simply to establish whether the killing was lawful or not. It doesn't have to decide as to culpability. This is where the judge erred. The question is not so much how could he have been so wrong but why was he?