Prevention of terrorism
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant criminal offences and defences 1. Murder 147. The unlawful taking of life with intent to kill or cause really serious harm constitutes the common-law offence of murder, which is punishable by a mandatory sentence of life imprisonment. 2. Self-defence (a) Common law 148. In England and Wales self-defence is available as a defence to crimes committed by use of force, including murder. The basic principles of self-defence are set out in Palmer v. R ([1971] AC 814): “It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.” 149. In assessing the reasonableness of the force used, prosecutors will ask, firstly, whether the use of force was necessary in the circumstances; and, secondly, whether the force used was reasonable in the circumstances. The domestic courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be ( R v. Williams (G) 78 Cr App R 276, and R v. Oatbridge 94 Cr App R 367). To that extent it is a subjective test. There is, however, also an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive. 150. In Palmer Lord Morris stated: “If there has been an attack so that the defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken.” 151. In R (Bennett) v. HM Coroner for Inner South London ([2006] HRLR 22) the Administrative Court was called upon to consider the compatibility of the law of self-defence in the United Kingdom with Article 2 of the Convention. A police officer had shot and killed Mr Bennett, who was, at the time, brandishing a cigarette lighter shaped like a pistol (for further details, see Bennett v. the United Kingdom (dec.), no. 5527/08, 7 December 2010). At the inquest which followed, the coroner refused to leave the verdict of unlawful killing to the jury. In her summing-up to the jury, she indicated that lawful killing could only occur if the evidence showed that it was probable the deceased died by the deliberate application of force against him and the person causing the injuries had used reasonable force in self-defence or defence of another, even if that force was by its nature or the manner of its application likely to be fatal. In determining whether it was self-defence or defence of another, the coroner directed the jury that the first question to be answered was whether the individual believed, or may have honestly believed, that it was necessary to defend himself or another, having regard to the circumstances which he honestly believed to exist, although the reasonableness of the belief was somewhat relevant because, if the belief on the facts was unreasonable, it might be difficult to decide that it was honestly held. The second question, which arose if the first question was answered favourably to the individual, was whether the force used was reasonable having regard to the circumstances which were believed to exist. 152. The deceased ’ s family, who were represented by the same counsel representing Mr de Menezes ’ family in the present case, were granted leave to apply for judicial review of the coroner ’ s decision on the ground, inter alia, that her direction on self-defence, in so far as it concerned the degree of force used, was not accurate having regard to Article 2 § 2 of the Convention. In particular the family argued that the direction did not comply with Article 2 because it applied a test of “reasonableness” in respect of the degree of force used rather than one of “absolute necessity”. 153. The Administrative Court judge considered the Strasbourg case-law, including McCann and Others and Bubbins (both cited above), and held as follows. “It is thus clear that the European Court of Human Rights has considered what English law requires for self-defence, and has not suggested that there is any incompatibility with Article 2. In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann [ and Others ]. There is no support for the submission that the court has with hindsight to decide whether there was in fact absolute necessity. That would be to ignore reality and to produce what the court in McCann [ and Others ] indicated was an inappropriate fetter upon the actions of the police which would be detrimental not only to their own lives but to the lives of others.” 154. The claimants were granted leave to appeal to the Court of Appeal on the ground that it was arguable that the coroner should have left the verdict of “unlawful” killing to the jury. However, the Court of Appeal noted that counsel “did not challenge the correctness of the Strasbourg jurisprudence to the effect that the test formulated under English law as to whether self-defence had been established was Article 2 compliant”. (b) The Criminal Justice and Immigration Act 2008 155. In 2008 the common-law definition of self-defence was incorporated into statute. Section 76 of the Criminal Justice and Immigration Act 2008 provides: “ Reasonable force for purposes of self-defence etc. ... (3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question. (4) If D claims to have held a particular belief as regards the existence of any circumstances— (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not— (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made. (5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced. (6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. (7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)— (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person ’ s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. (8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).” 3. Gross negligence manslaughter 156. Any person causing death by gross negligence may be guilty of manslaughter. In R v. Adomako ([1995] 1 AC 171) the House of Lords stated that the offence of gross negligence manslaughter would be committed where the defendant was in breach of a duty of care owed to the victim; the breach of duty caused the death of the victim; and the breach of duty could be characterised as grossly negligent. In determining whether or not there had been gross negligence and whether this caused the death, it was not possible to aggregate the failures of various individuals. 4. Offences under the Health and Safety at Work etc. Act 1974 157. Section 3(1) reads as follows: “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.” 158. Section 33(1)(a) provides that it is an offence for a person to fail to discharge a duty to which he is subject by virtue of, inter alia, section 3 of the 1974 Act. B. Prosecutorial decisions 1. The CPS 159. In 1986 the CPS was established as an independent body to prosecute criminal cases in accordance with the Code. Pursuant to sections 1 and 3 of the Prosecution of Offences Act 1985, the DPP is the head of the CPS and operates independently under the superintendence of the Attorney General. As a government minister, the Attorney General is accountable to Parliament for the work of the CPS. 160. According to the Protocol between the Attorney General and the Prosecuting Departments (July 2009), other than in exceptional cases, decisions to prosecute are taken by prosecutors; the Attorney General will not seek to give a direction in an individual case save very exceptionally where necessary to safeguard national security. Moreover, it is a constitutional principle that in such exceptional cases the Attorney General acts independently of government, applying well-established prosecution principles of evidential sufficiency and public interest. 161. The circumstances in which the CPS will pursue a prosecution are governed by the 1985 Act and the Code. 2. The Prosecution of Offences Act 1985 162. Section 10 provides as follows. “(1) The [DPP] shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them ‑ (a) in determining, in any case ‑ (i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or (ii) what charges should be preferred; and (b) in considering, in any case, representations to be made by them to any magistrates ’ court about the mode of trial suitable for that case. (2) The Director may from time to time make alterations in the Code. ...” 3. The Code for Crown Prosecutors 163. The relevant sections read as follows. “ 5. THE FULL CODE TEST 5.1 The Full Code Test has two stages. The first stage is consideration of the evidence. If the case does not pass the evidential stage it must not go ahead no matter how important or serious it may be. If the case does pass the evidential stage, Crown Prosecutors must proceed to the second stage and decide if a prosecution is needed in the public interest. The evidential and public interest stages are explained below. THE EVIDENTIAL STAGE 5.2 Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘ realistic prospect of conviction ’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case. 5.3 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A court should only convict if satisfied so that it is sure of a defendant ’ s guilt. 5.4 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable. ... THE PUBLIC INTEREST STAGE 4.11 Accordingly, where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest. 4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender ’ s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest. 4.13 Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed. ...” 164. An Explanatory Memorandum issued to prosecutors in 1994 provided that “4.14 Crown Prosecutors should resist the temptation to define the evidential test as ‘ a 51% rule ’. The CPS has always stated that weighing evidence (and the public interest) is not a precise science; it is therefore misleading to talk in terms of percentages – particularly to a single percentage point – because it implies that we can give individual pieces of evidence an exact weight and then add them up to reach a decision about prosecution. Crown Prosecutors should continue to avoid using any expressions which could convey the impression that the decision-making process is susceptible of very precise numerical definition. On the other hand, it is not unreasonable to talk of a conviction being ‘ more likely than not ’ .” 4. Judicial review of prosecutorial decisions 165. In R v. Director of Public Prosecutions, ex parte Manning ([2001] 1 QB 330) Lord Bingham of Cornhill CJ, giving the judgment of the court, stated as follows. “23. Authority makes clear that a decision by the [DPP] not to prosecute is susceptible to judicial review ... But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the [DPP] as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the [DPP] personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the [DPP ’ s] provisional decision is not to prosecute, the decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment. The [DPP] and his officials ... will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied. ...” C. The threshold evidential test for deciding whether to leave a case to the jury (“the Galbraith test”) 166. In R v. Galbraith ([1981] 1 WLR 1039) it was held that a court could not stop a prosecution if there was “some evidence”, even if it was “of a tenuous character”, for example, because of inherent weaknesses or vagueness or because it was inconsistent with other evidence. Moreover, if the strength or weakness depended on the view to be taken of a witness ’ s reliability, or other matters which were generally within the province of the jury and where “on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty”, then the judge should allow the matter to be tried by the jury. D. Inquests 1. Statutory basis 167. The law governing inquests is found in the Coroners Act 1988 and the Coroners Rules 1984. Section 11 of the Act provides that, at the end of an inquest, a coroner or jury must complete and sign an inquisition. Pursuant to section 11(5), an inquisition shall set out, so far as such particulars have been proved, who the deceased was and how, when and where the deceased came by his death. Neither the coroner nor the jury shall express any opinion on any other matters (Rule 36 § 2 (2)) and in particular “[n]o verdict shall be framed in such a way as to appear to determine any question of (a) criminal liability on the part of a named person, or (b) civil liability” (Rule 42). 168. Section 16(7) provides: “Where a coroner resumes an inquest which has been adjourned in compliance with subsection (1) above– (a) the finding of the inquest as to the cause of death must not be inconsistent with the outcome of the relevant criminal proceedings; ...” 2. Relevant case-law 169. In R (Middleton) v. West Somerset Coroner ([2004] 2 AC 182) the House of Lords considered the implications of Article 2 of the Convention on the interpretation of the Coroners Act and Rules. It concluded that an investigation should be capable of reaching a conclusion which resolved the central issues of fact in the case. Where a choice between “short-form” verdicts (unlawful killing, open verdict, lawful killing) was not capable of resolving those central issues, the inquest would not be Article 2 compliant. In such cases it might therefore be necessary for the judge or jury to return a narrative verdict, in order to be able to answer not only “by what means the deceased came by his death”, but also “in what circumstances”. 170. The refusal by a coroner to leave a particular short-form verdict to a jury is governed by R v. HM Coroner for Exeter, ex parte Palmer (unreported, 10 December 1997); R v. Inner South London Coroner, ex parte Douglas-Williams ([1999] 1 All ER); and R (Bennett) v. HM Coroner for Inner South London ([2007] EWCA Civ 617). 171. In Palmer the Court of Appeal stated that the coroner should not leave a verdict to a jury if it fell foul of the test used to determine a submission of “no case to answer” in criminal trials, namely that there was no evidence to support it or the evidence was so weak, vague or inconsistent with other evidence that, taken at its highest, a jury properly directed could not properly return that verdict (the Galbraith test). By contrast, if the strength or weakness of the evidence depended on the view to be taken of a witness ’ s reliability, then the verdict should be left to the jury. 172. In Douglas-Williams (cited above) the Court of Appeal clarified the extent of the discretion of a coroner not to leave to the jury what was, on the evidence, a possible verdict. Lord Woolf MR stated at p. 348: “If it appears there are circumstances which, in a particular situation, mean in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner ’ s conclusion he cannot be criticised if he does not leave a particular verdict.” 173. The Court of Appeal further clarified this in R (Bennett) (cited above). Waller LJ, giving the judgment of the court, considered that “there is some (if small) distinction between the position of a coroner deciding what verdict to leave to a jury after hearing all the evidence and that of a judge considering whether to stop a case after the conclusion of the prosecution case ”, that is, on a submission of no case to answer. At paragraph 30, he continued: “ ... coroners should approach their decision as to what verdicts to leave on the basis that facts are for the jury, but they are entitled to consider the question whether it is safe to leave a particular verdict on the evidence to the jury i.e. to consider whether a verdict, if reached, would be perverse or unsafe and to refuse to leave such a verdict to the jury. ” 174. A jury or coroner may only return a verdict of unlawful killing if satisfied beyond reasonable doubt that one or more persons unlawfully killed the deceased (see, inter alia, Bennett, and R (Sharman) v. HM Coroner for Inner North London [2005] EWHC 857 (Admin)). III. RELEVANT COMPARATIVE LAW A. Contracting States 175. From the information available to the Court, it would appear that, leaving aside the question of private prosecutions, in at least twenty-five Contracting States the decision to prosecute is taken by a public prosecutor. That is the case in Albania, Armenia, Austria, Azerbaijan, Bulgaria, the Czech Republic, Estonia, Finland, Georgia, Hungary, Iceland, Ireland, Italy, Latvia, the Republic of Moldova, Montenegro, Poland, Portugal, Romania, Russia, Serbia, Sweden, Switzerland, Turkey and Ukraine. In a further twelve Contracting States, the prosecutorial decision is first taken by a public prosecutor before being put before a judge and/or a court. This is the position in Belgium, Cyprus, France, Germany, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Malta, Monaco, Slovakia, Slovenia and Spain. 176. There is no uniform approach among Contracting States as to the threshold evidential test necessary to prosecute a case, although in at least twenty-four States a written threshold does exist. These States are Austria, Belgium, Bulgaria, the Czech Republic, Germany, Finland, France, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Switzerland and Turkey. 177. In one group of States, the threshold focuses on whether the elements of the offence have been made out; in the second group, it focuses on the chance of conviction by a court. However, these two categories are not watertight as it is not possible to say how prosecutors and judges apply the tests in practice. For example, a prosecutor applying a test based on the elements of the offence may also consider whether the strength or quality of evidence is sufficient for a conviction. 178. In addition to the respondent State, at least four countries fall into the second group: Austria, Iceland, the former Yugoslav Republic of Macedonia and Portugal. In Austria, the test is “the likelihood of conviction before the court”; in Iceland, it is whether the evidence is “sufficient or probable for conviction”; in the former Yugoslav Republic of Macedonia the test is whether there is “enough evidence from which [the prosecutor] can expect a conviction”; and finally, in Portugal, it is whether there is a “reasonable possibility of imposing a penalty at trial.” 179. In some States once the evidentiary threshold has been reached, the prosecutor must pursue the case. In Italy, for example, a decision to prosecute shall be taken if doubt as to the strength of the evidence could be rectified by new evidence presented at trial. In Germany, the principle of mandatory prosecution holds that “the public prosecution office shall be obliged to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications”. 180. In other States, the evidentiary threshold allows the prosecutor to bring a case, but does not compel prosecution. The practice in Ireland, for example, as defined by the Guidelines for Public Prosecutors, is “the prosecutor approaches each case first by asking whether the evidence is sufficiently strong to justify prosecuting. If the answer to that question is ‘ no ’, then a prosecution will not be pursued. If the answer is ‘ yes ’, before deciding to prosecute the prosecutor will ask whether the public interest favours a prosecution or if there is any public interest reason not to prosecute.” In Cyprus, even if there is sufficient evidence to pursue a prosecution, there is no legal obligation to do so. 181. The decision not to prosecute is susceptible of some form of judicial review or appeal to a court of law in at least eighteen Contracting States, namely Albania, Armenia, Austria, Azerbaijan, Belgium, France (albeit in limited circumstances), Ireland, Italy, Luxembourg, Malta, Monaco, Poland, Portugal, Russia, Spain, Switzerland, Turkey and Ukraine. In at least seven Contracting States, the decision of the prosecutor is normally contested before a hierarchical superior in the prosecution service with the final decision being susceptible of judicial review. These States include Bulgaria, Estonia, Germany, Lithuania, the Republic of Moldova, Romania and Slovakia. Finally, in at least twelve Contracting States there is no possibility of judicially reviewing the decision not to prosecute, although in some cases the decision may be contested to a hierarchical superior in the prosecution service. The States which do not permit judicial review include Cyprus, the Czech Republic, Finland, Georgia, Hungary, Iceland, Latvia, the former Yugoslav Republic of Macedonia, Montenegro, Serbia, Slovenia and Sweden. B. Common-law countries 182. In Australia, prosecutorial decisions are taken by the Office of the Director of Public Prosecutions which applies the Australian Prosecution Policy. The first criterion of this policy is that of evidential sufficiency, which is met if there is evidence sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the alleged offender. The existence of a bare prima facie case is not sufficient to justify prosecution. Once it is established that there is a bare prima facie case, it is then necessary to give consideration to the prospects of conviction. A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. 183. In New Zealand, the Solicitor-General has published prosecution guidelines that draw extensively on the Australian Prosecution Policy, the CPS Code for Crown Prosecutors, and guidelines developed by the Public Prosecution Service for Northern Ireland and the Director of Public Prosecutions in the Republic of Ireland. The test is in two parts: the evidential test and the public-interest test. The evidential test is met if “the evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction”. 184. In Canada, the Public Prosecution Service Deskbook sets the standard in relation to decisions to prosecute. The first criteria is the evidential test, which requires Crown counsel objectively to assess the whole of the evidence likely to be available at trial, including any credible evidence that would favour the accused, to determine whether there is a reasonable prospect of conviction. A reasonable prospect of conviction requires that there be more than a bare prima facie case; however, it does not require a probability of conviction (that is, that a conviction is more likely than not). 185. Finally, in the United States of America, the standard is whether there is “probable cause” to bring a prosecution, which means reasonable and objective grounds for belief in guilt. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 186. The applicant complained that the decision not to prosecute any individuals in respect of her cousin ’ s death was in breach of the procedural aspect of Article 2 of the Convention. 187. Article 2 provides as follows: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 188. The Government contested the applicant ’ s argument. A. Admissibility 189. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant ’ s submissions 190. The applicant did not complain that her cousin was killed by State agents in circumstances which breached Article 2 in its substantive aspect; consequently, she did not aver that his shooting was unlawful or that the conduct and planning of Operation THESEUS 2 was in breach of Article 2. Rather, her complaints fell solely under the procedural limb of Article 2 of the Convention and related solely to the fact that no individual police officer was prosecuted following the fatal shooting of Jean Charles de Menezes. 191. More specifically, she argued that: (a) the investigation into her cousin ’ s death fell short of the standard required by Article 2 of the Convention because the authorities were precluded from considering the reasonableness of the belief of Charlie 2 and Charlie 12 that the use of force was necessary; and (b) the prosecutorial system in England and Wales prevented those responsible for the shooting from being held accountable and, as a consequence, the procedural requirement under Article 2 of the Convention had not been satisfied. (i) The investigation 192. In the applicant ’ s submission, the test for self-defence under domestic law was lower than the standard required by Article 2 of the Convention. Under the law of England and Wales, an officer who used lethal force in self-defence would have a defence if he honestly but mistakenly believed he was under imminent threat, even, so she argued, if that belief was wholly unreasonable. However, the test applied by the Court required an honest belief to be supported by “good reasons”. Therefore, if the honest belief was mistaken, the use of force could only be justified if the person had good reasons for believing it was necessary based on what was seen and known by him or her at the time. 193. The applicant contended that, as the investigating authorities were applying a lower standard than that required by the Court, they were prevented from considering whether the use of force by Charlie 2 and Charlie 12 was or was not justified in the circumstances within the meaning of Article 2 of the Convention. In other words, the extent to which the domestic authorities were able to submit the actions of State agents to careful scrutiny was undermined, with the consequence that the State ’ s investigation was unable to secure accountability through a prosecution for a violation of Article 2 (see, for example, Vasil Sashov Petrov v. Bulgaria, no. 63106/00, § 52, 10 June 2010). 194. In the particular circumstances of the present case, the applicant contended that the authorities could not consider the reasonableness of the mistaken belief of Charlie 2 and Charlie 12 that Mr de Menezes posed a threat; nor were they required to analyse whether those officers had conducted both a careful assessment of the surrounding circumstances and an evaluation of the threat Mr de Menezes posed by his presence on the train. (ii ) The prosecutorial decisions 195. Although the applicant did not contend that there must always be a prosecution when there has been a death at the hands of a State agent, she submitted that there should be a prosecution where there was sufficient evidence to justify it. She argued that there had been sufficient evidence to justify the prosecution of a number of police officers involved in Operation THESEUS 2, but that flaws in the prosecutorial system in England and Wales had prevented the persons responsible for the death of her cousin from being held to account. 196. The applicant did not submit that prosecutors in England and Wales were not adequately independent for the purposes of Article 2 of the Convention. However, relying on Maksimov v. Russia (no. 43233/02, 18 March 2010), she criticised the fact that the prosecutor normally makes decisions without the benefit of oral testimony. She submitted that in cases like the present, where honesty and credibility were decisive, it was vital that the prosecutor should be in a position to assess the demeanour of witnesses giving oral evidence. 197. The applicant accepted that States were entitled to apply a threshold evidential test for permitting prosecutions to proceed, but contended that the threshold in England and Wales was too high. She accepted that “a realistic prospect of conviction” was used in some other States, particularly those with common-law legal systems, but she argued that in England and Wales this test had been interpreted to mean that a conviction should be more likely than not, that is, the chances of conviction were over fifty percent. She contended that the appropriate threshold should be the same as that used by the trial judge in deciding whether to allow a matter to be tried by a jury (the Galbraith test), namely, that there was “some evidence”, even if it was “of a tenuous character”, on which the jury could properly come to the conclusion that the defendant was guilty. 198. Although the applicant accepted that this was the same test applied by the coroner in deciding what short-form verdicts to leave to the jury, she argued that the CPS was wholly independent of the coroner and had not been bound by his decision. It could not, therefore, be said that a prosecutor applying the same test would have come to the same conclusion. In any case, the applicant had sought permission to judicially review the coroner ’ s decision but, by the time the Administrative Court considered her claim, the jury had already been directed. 199. In light of the absolute nature of Article 2, the applicant rejected any suggestion that there was a margin of appreciation in setting the threshold evidential test. However, even if there were, she submitted that the current threshold, which was substantially higher than the Galbraith test, was too high and therefore incompatible with Article 2 of the Convention. In particular she claimed that the threshold was set too high to maintain public confidence, to ensure adherence to the rule of law and to prevent any appearance of tolerance of or collusion in unlawful acts. Moreover, as the prosecutor could prevent a case from going to trial where there was sufficient evidence in the case for a jury properly to have convicted, there was a chance that life-endangering offences could go unpunished. 200. More particularly, the applicant argued that there was a substantial chance that life-endangering offences in fact had gone unpunished in the present case because, had the threshold evidential test been lower, there would have been sufficient evidence to have led to a prosecution of a number of officers, including Charlie 2 and Charlie 12 for murder, and Commander McDowall, Commander Dick, Trojan 84, Trojan 80, DCI C and “James” for gross negligence manslaughter. The fact that the inquest jury, having heard oral testimony, returned an open verdict indicated that they were not satisfied that, at the time they fired, Charlie 2 and Charlie 12 honestly believed that Mr de Menezes represented an imminent, mortal danger. 201. Relying on Enukidze and Girgvliani v. Georgia (no. 25091/07, § 274, 26 April 2011), the applicant submitted that the need to secure public confidence by ensuring accountability was particularly fundamental where a fatal shooting by a police officer was concerned and that confidence would be undermined by a perceived failure to prosecute public officials who were alleged to have violated Article 2 of the Convention. Consequently, it would be permissible to have a lower threshold for prosecutions for serious breaches of Convention rights by State agents than for other offences. 202. The applicant further alleged that the level of scrutiny that the domestic courts applied to a decision not to prosecute was incompatible with Article 2 of the Convention. This was because, pursuant to the dicta in Manning, even if a court considering a claim for judicial review concluded that a prosecution was likely to succeed, it would only have to order such prosecution if there had been an error of law. Such approach was inconsistent with Article 2 of the Convention. 203. In the alternative, the applicant argued that even if individual prosecutions were not required in the present case, the prosecution of the OCPM had not amounted to an adequate acknowledgment of responsibility on the part of the State, as the offence under the Health and Safety at Work etc. Act 1974 was established if there was a possibility of danger instead of actual danger, that is, since proof of actual harm was unnecessary to establish the offence, it was not necessary for the domestic court to determine whether any breach of duty in fact caused the death of Mr de Menezes. Consequently, despite the serious criticisms made in the IPCC report, and the verdict of the inquest jury, no individual or organisation had been held to account for Mr de Menezes ’ death. 204. Although the applicant accepted that she could have brought a private prosecution, she argued that this would not have addressed her complaints because it was clear from the Court ’ s case-law that it was the State that had the responsibility for complying with Article 2. 205. The applicant further submitted that disciplinary proceedings could not, by themselves, have complied with Article 2 of the Convention as they were essentially administrative proceedings intended to govern future employment. Where serious breaches of the Convention were concerned, effective protection had to be provided by the criminal law because the sanctions available were more punitive and had better deterrents than disciplinary proceedings. In a case such as the present, disciplinary proceedings could not have satisfied the procedural obligation under Article 2 of the Convention because there would have been a manifest disproportion between the gravity of the act and the punishment available. 206. More particularly, the applicant contended that police disciplinary proceedings in the United Kingdom were often not sufficiently independent to satisfy the procedural limb of Article 2, as it was usually the Chief Officer of the officer ’ s own force who took all the key steps in the investigation, and the members of the panel which conducted the proceedings could also be from the same force. The proceedings were not conducted in public and at the time of Mr de Menezes ’ death police officers could avoid the disciplinary process by resigning. (b) The Government ’ s submissions (i ) The investigation 207. The Government argued that the formulation of the law of self-defence in England and Wales struck an appropriate balance between permitting the use of force to prevent lethal attacks on the public and ensuring that any individuals who may be exposed to a real and immediate risk to life by any operational measures were protected. In doing so, it recognised that it was not for the courts, with the benefit of detached reflection, to substitute their own opinion for that of a police officer required to act in the heat of the moment. 208. More particularly, the Government contended that the test of “absolute necessity” in Article 2 § 2 of the Convention ought to be assessed from the standpoint of the person wielding lethal force in self-defence without any requirement of reasonableness by reference to objectively established facts, that is, a person ought to be criminally liable for causing death only where he was aware that in the circumstances his conduct was not absolutely necessary. This was supported by the Court ’ s case-law, which provided that the use of force might be justified where it was based on an honest belief, perceived for good reasons, to be valid at the time ( McCann and Others v. the United Kingdom, 27 September 1995, § 200, Series A no. 324; Andronicou and Constantinou v. Cyprus, 9 October 1997, § 192, Reports of Judgments and Decisions 1997 ‑ VI; and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 178, ECHR 2011). The honest belief did not have to be shown to be reasonable by reference to objectively established facts, although the objective reasonableness of the belief would nevertheless be relevant in determining whether or not it was genuinely held. An honest belief could be held for good reasons even if, objectively, another person might consider the belief to be irrational or based on either a flawed premise or faulty perceptions. 209. Finally, the Government argued that the applicant ’ s proposed change to the law could have far-reaching and counter-productive effects. In particular, if officers were liable to prosecution even when their use of force was legitimate based on their honest beliefs at the time, there could be a chilling effect on the willingness of officers to carry out essential duties where they might be required to act in the heat of the moment to avert a danger to life. Consequently, it could have a profoundly detrimental effect on their ability to act in defence of their own lives and the lives of others. (ii ) The prosecutorial decisions 210. The Government argued that as the investigative obligation was one of means and not result, Article 2 only required a prosecution where it was justified by the findings of the investigation. The effectiveness of the investigation could not therefore be assessed only by reference to whether it resulted in criminal or disciplinary proceedings against individuals. An effective investigation, carried out against an appropriate framework of criminal law, could lead to the conclusion that such proceedings would not be justified. 211. Thus, the fact that no individual officer was prosecuted was not, properly viewed, a specific ground of complaint; the crucial question was why there were no individual prosecutions. In the present case, the reason was that none of the independent authorities who reviewed the case concluded that there was sufficient evidence to justify a prosecution for murder or manslaughter. All necessary measures had been taken to discharge the Article 2 duty and in such a case it was not for the Court to substitute its own assessment of the facts for those of the domestic authorities and courts ( Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). 212. With regard to prosecutorial decisions in England and Wales, the Government submitted that the CPS was an independent prosecution service. Although in certain other legal systems this function was carried out by judicial officers, such a system was not mandated by the Convention. On the contrary, Article 2 merely required that such decisions were taken independently on the basis of a thorough review of the evidence. Furthermore, the applicant was wrong to say that a decision was taken by the CPS without the benefit of hearing witnesses. In taking its decision, the CPS had the benefit of all the materials generated by the IPCC during its investigation, including witness statements, and it carried out a review of its decision following the inquest, during which all the key witnesses had given oral evidence. 213. The Government further argued that the current threshold evidential test did not require prosecutors to be satisfied that there was a fifty percent or more prospect of conviction. The Explanatory Memorandum issued to prosecutors in 1994 made it clear that although it was not unreasonable to talk about a conviction being “more likely than not”, they should “resist the temptation to define the evidential test as ‘ a 51% rule ’ ” (see paragraph 164 above). This was because it was impossible to measure with arithmetical precision the probability or likelihood of a particular outcome in a criminal case as there were many variable factors and elements of complexity and uncertainty that defied accurate calculation. 214. The correct test was whether or not there was a “realistic prospect of conviction” against each suspect on each charge; in other words, whether a reasonable and impartial court, properly directed and acting in accordance with the law, was more likely than not to convict the defendant of the charge(s) alleged. A “merits based” approach was therefore applied, in which the prosecutor essentially asked himself whether, on balance, the evidence was sufficient to merit a conviction taking into account what he or she knew about the defence case. In reaching a decision the prosecutor was required to undertake a thorough and conscientious review of the case and it was only when he or she considered on balance that the evidence was not sufficient to merit conviction that the case would not be prosecuted. 215. The Galbraith test, on the other hand, was a very low threshold which would be met where there was “some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence”. In the Government ’ s view, if the Galbraith test were the threshold evidential test, prosecutions would have to be brought in cases where there was no realistic prospect of conviction and where the prosecutor considered that the case was unfounded. 216. In any case, the Government noted that even if the threshold evidential test had been the Galbraith test, it would not necessarily have led to the prosecution of any individual officer. The Galbraith test was also the test used by coroners in deciding whether to leave a verdict to a jury at an inquest. Furthermore, the elements of the inquest verdict of unlawful killing were precisely the same as the elements of the crimes which the CPS had to consider in taking the decision on criminal charges. However, in the present case, after hearing all the relevant witnesses cross-examined at length, the coroner weighed the evidence against the Galbraith threshold and decided that it was not met. 217. Moreover, the Government submitted that in England and Wales the threshold evidential test had been the subject of frequent and anxious consideration through public consultation and political scrutiny. Detailed reviews of the Code for Crown Prosecutors were carried out in 2003, 2010 and 2012 and during those reviews the threshold evidential test had not been subject to substantive criticism by the Equality and Human Rights Commission (EHRC) or any of the human rights organisations with an interest in criminal law. In the 2003 review the then Attorney General specifically considered whether a lower threshold should apply to deaths in custody but found little, if any, support for such an approach as it would be unfair – and inconsistent – to subject potential defendants in such cases to the burden of prosecution in the absence of a realistic prospect of conviction. Public confidence was maintained by prosecuting where the evidence justified it, and not prosecuting where it did not. 218. In light of the fact that the threshold evidential test had been given careful and anxious scrutiny, the Government argued that it should be accorded a significant margin of appreciation in assessing the appropriate evidential thresholds for the initiation and continuation of criminal proceedings in all cases. 219. This was particularly important in light of the primacy of the jury in the United Kingdom criminal justice system. Once a case was prosecuted, the trial judge could not remove it from the jury if the Galbraith test was satisfied, that is, if there was some evidence, however tenuous, on which the jury could properly come to the conclusion that the defendant was guilty. The trial judge could not, therefore, act as a filter for unmeritorious cases, and a higher threshold evidential test for bringing prosecutions was necessary to ensure that the emotional and financial costs of trial were not incurred simply because there was a bare possibility of conviction. In other words, it was particularly important to weed out weak cases at an early stage because cases which did go to trial were usually pursued right to the end. 220. The Government also noted that significant procedural protections had been built into CPS practices in cases of police shootings or deaths in custody: the prosecutor had to write to the family of the victim to explain any decision; the family had to be offered a meeting with the prosecutor to explain the decision; all charging decisions had to be reviewed personally by the DPP and, if there was a decision not to proceed, if it was not plain beyond all doubt that there was no case to answer, advice had to be sought from senior independent counsel. In addition, since June 2013 the victim has had the right to request a review of the CPS decision, first by the local CPS office that made the decision, and then by means of an independent review by either the CPS Appeals and Review Unit or by the relevant CPS Chief Crown Prosecutor. 221. Although the Government accepted that in practice prosecution of State agents for causing death were rare, they did not consider this to be a cause for concern. Fatalities caused by armed police officers did not normally require the prosecution of the officer. In England and Wales a rigorous approach to the use of firearms was adopted; in particular, firearms officers were subjected to a high level of screening, training, guidance and monitoring to ensure that they only discharged firearms when it was absolutely necessary to do so. This is evidenced by the statistics: from 2003/04 to 2012/13, the annual number of police operations in which the use of firearms was authorised ranged from 10,996 (in 2012/13) to 19,595 (in 2007/08). However, during the same period the annual number of incidents in which conventional firearms were discharged ranged from three (in 2006/07 and 2012/13) to nine (in 2005/06). 222. The Government further argued that the remedy of judicial review was not intended to provide an appeal system on the merits of the prosecutorial decision. In this regard, the primary protection lay not with the judiciary but in the requirement that the initial decision be taken by an independent and qualified prosecutor exercising an impartial judgment based on a public and accessible policy, subject to scrutiny by the DPP. On an application for judicial review, the Administrative Court retained the power to intervene where a decision not to prosecute was based on an error of law or was otherwise irrational or procedurally flawed. 223. Finally, the Government submitted that a real tension existed between the paradigm of criminal culpability based on individual responsibility and the increasing recognition of the potential for harm inherent in large-scale or complex activity where no one person was wholly to blame for what went wrong. Cases such as McCann and Others, cited above, indicated that it might be simplistic to attribute an Article 2 breach to the individuals who directly caused the death, especially in a case such as the present where the death resulted from failures in the overall system. In such cases, it would be inaccurate and unfair to ascribe blame to the individuals who happened to form the last link in the chain. It could also be dangerous, diverting attention away from the real problems in the system which could then go unremedied and create risks to life in future. The prosecution of the OCPM, on the other hand, enabled the issues of planning and execution to be directly addressed in the context of a criminal trial. (c) The third-party intervener ’ s submissions (i) The investigation 224. The EHRC argued that the criminal-law provisions of England and Wales failed to ensure accountability for deaths occurring under the State ’ s responsibility. In particular, they submitted that the definition of self-defence in English law was drawn very widely, was partially subjective and was inconsistent with Article 2 of the Convention. The clear and constant case-law of the Court is that an “honest belief” must be founded on “good reason”; to permit State officials to escape punishment in criminal proceedings based on an honest but objectively unjustifiable belief was incompatible with the strict requirements of Article 2 of the Convention. The use of force should therefore be objectively justifiable, that is, law-enforcement officers should be required to make reasonable attempts to ascertain the true facts before using lethal force. (ii ) The prosecutorial decisions 225. The EHRC further submitted that the criminal-law provisions in England and Wales were inadequate because the threshold evidential test for bringing prosecutions was too high. Although the State should not be obliged to prosecute hopeless cases, it was arbitrary to set the test as high as it currently was and there could be no objection in principle if it were lower. Like the applicant, the EHRC also considered the Galbraith test to be a more appropriate threshold evidential test for bringing a prosecution. 226. The EHRC argued that aligning the threshold evidential test for bringing a prosecution with that for leaving a case to the jury would not require the prosecution of every case of a potential violation of Article 2, no matter how weak the evidence. Hopeless or legally unmeritorious cases would not cross this threshold. However, a case which had an assessed forty-nine percent chance of conviction could not sensibly be described as one with little prospect of conviction. A criminal justice system which operated so as to preclude trial in circumstances where evidence existed upon which a properly directed jury could lawfully convict was not one which secured the full accountability required by Article 2. 227. Moreover, the lowering of the threshold evidential test in Article 2 cases involving killing by State agents would not involve any irreversible prejudice. Every trial was thoroughly reviewed at the close of the prosecution case and the judge was duty bound to withdraw the case upon a successful submission of no case to answer, that is, if a properly directed jury on one view of the facts could not lawfully convict. If the threshold evidential test for bringing a prosecution were lowered, at worst some cases which would not be prosecuted under the existing test would be withdrawn by the judge at the close of the prosecution case. At best, some which would not have been brought to trial at all under the existing test might result in convictions of State agents for culpable homicide. 228. In support of their submissions, the EHRC noted that between 1990 and 2014 there were fifty-five deaths caused by police shootings in England and Wales. However, since 1990 there has been no criminal conviction of an armed officer, even in those cases where an inquest jury recorded a verdict of unlawful killing. Indeed, between 1993 and 2005 there were thirty fatalities and only two prosecutions. 2. The Court ’ s assessment (a) The procedural requirement in cases concerning the use of lethal force by State agents 229. Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation – as described below – to carry out an effective investigation into alleged breaches of its substantive limb (see Ergi v. Turkey, 28 July 1998, § 82, Reports 1998 ‑ IV; Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII; Giuliani and Gaggio, cited above, § 298; and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 69, 14 April 2015 ). 230. A general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, taken in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State (see McCann and Others, cited above, § 161). The State must therefore ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Zavoloka v. Latvia, no. 58447/00, § 34, 7 July 2009, and Giuliani and Gaggio, cited above, § 298). 231. The State ’ s obligation to carry out an effective investigation has in the Court ’ s case-law been considered as an obligation inherent in Article 2, which requires, inter alia, that the right to life be “protected by law”. Although the failure to comply with such obligation may have consequences for the right protected under Article 13, the procedural obligation of Article 2 is seen as a distinct obligation (see İlhan v. Turkey [GC], no. 22277/93, §§ 91-92, ECHR 2000-VII; Öneryıldız v. Turkey [GC], no. 48939/99, § 148, ECHR 2004-XII; and Šilih v. Slovenia [GC], no. 71463/01, §§ 153-54, 9 April 2009). It can give rise to a finding of a separate and independent “interference”. This conclusion derives from the fact that the Court has consistently examined the question of procedural obligations separately from the question of compliance with the substantive obligation (and, where appropriate, has found a separate violation of Article 2 on that account) and the fact that on several occasions a breach of a procedural obligation under Article 2 has been alleged in the absence of any complaint as to its substantive aspect (see Šilih, cited above, §§ 158 ‑ 59). 232. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999 ‑ III; Giuliani and Gaggio, cited above, § 300; and Mustafa Tunç and Fecire Tunç, cited above, § 177 ). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports 1998 ‑ IV; Giuliani and Gaggio, cited above, § 300; and Mustafa Tunç and Fecire Tunç, cited above, § 177 ). What is at stake here is nothing less than public confidence in the State ’ s monopoly on the use of force (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 106, 4 May 2001; Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007 ‑ II; and Giuliani and Gaggio, loc. cit.). 233. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others, cited above, § 324, and Mustafa Tunç and Fecire Tunç, cited above, § 172 ). This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible (see Giuliani and Gaggio, cited above, § 301, and Mustafa Tunç and Fecire Tunç, cited above, § 172 ). This is not an obligation of result, but of means (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII; Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014; and Mustafa Tunç and Fecire Tunç, cited above, § 173). The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death (as regards autopsies, see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; on the subject of witnesses, see, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; and, as regards forensic examinations, see, for example, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Moreover, where there has been a use of force by State agents, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances (see, for example, Kaya v. Turkey, 19 February 1998, § 87, Reports 1998-I). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Avşar v. Turkey, no. 25657/94, §§ 393-95, ECHR 2001 ‑ VII); Giuliani and Gaggio, cited above, § 301; and Mustafa Tunç and Fecire Tunç, cited above, § 174 ). 234. In particular, the investigation ’ s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation ’ s ability to establish the circumstances of the case and the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009, and Mustafa Tunç and Fecire Tunç, cited above, § 175 ). Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation ’ s effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velcea and Mazăre v. Romania, no. 64301/01, § 105, 1 December 2009, and Mustafa Tunç and Fecire Tunç, cited above, § 175 ). Where a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation (see Enukidze and Girgvliani, cited above, § 277). 235. In addition, the investigation must be accessible to the victim ’ s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan, cited above, § 109; Giuliani and Gaggio, cited above, § 303; and Mustafa Tunç and Fecire Tunç, cited above, § 179; see also Güleç, cited above, § 82, where the victim ’ s father was not informed of the decision not to prosecute, and Oğur, cited above, § 92, where the family of the victim had no access to the investigation or the court documents). 236. However, disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects on private individuals or other investigations and therefore cannot be regarded as an automatic requirement under Article 2. The requisite access of the public or the victim ’ s relatives may therefore be provided for in other stages of the procedure (see, among other authorities, McKerr v. the United Kingdom, no. 28883/95, § 129, ECHR 2001-III, and Giuliani and Gaggio, cited above, § 304). Moreover, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see Velcea and Mazăre, cited above, § 113, and Ramsahai and Others, cited above, § 348). 237. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports 1998-VI, and Kaya, cited above, §§ 106-07). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr, cited above, §§ 111 and 114, and Opuz v. Turkey, no. 33401/02, § 150, ECHR 2009). 238. It cannot be inferred from the foregoing that Article 2 may entail the right to have third parties prosecuted or sentenced for a criminal offence (see Mastromatteo, cited above, § 90; Šilih, cited above, § 194; and Giuliani and Gaggio, cited above, § 306) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Zavoloka, cited above, § 34 (c)). Indeed, the Court will grant substantial deference to the national courts in the choice of appropriate sanctions for homicide by State agents. Nevertheless, it must still exercise a certain power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (see Kasap and Others v. Turkey, no. 8656/10, § 59, 14 January 2014; A. v. Croatia, no. 55164/08, § 66, 14 October 2010; and Ali and Ayşe Duran v. Turkey, no. 42942/02, § 66, 8 April 2008 ). 239. Where the official investigation leads to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect the right to life through the law. In this regard, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished (see, for example, Öneryıldız, cited above, § 95, and Giuliani and Gaggio, cited above, § 306 ). The Court ’ s task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined (see Mileusnić and Mileusnić-Espenheim v. Croatia, no. 66953/09, § 66, 19 February 2015, and Öneryıldız, cited above, § 96). (b) Application to the present case 240. As can be seen from the general principles set out above, the Court has, in its case-law, established a number of requirements for an investigation into the use of lethal force by State agents to be “effective”. In summary, those responsible for carrying out the investigation must be independent from those implicated in the events; the investigation must be “adequate”; its conclusions must be based on thorough, objective and impartial analysis of all relevant elements; it must be sufficiently accessible to the victim ’ s family and open to public scrutiny; and it must be carried out promptly and with reasonable expedition. 241. In the present case the applicant has not complained generally about the investigation, which was conducted by an independent body (the IPCC). In the course of the investigation, the IPCC secured the relevant physical and forensic evidence (more than 800 exhibits were retained), sought out the relevant witnesses (nearly 890 witness statements were taken), followed all obvious lines of enquiry and objectively analysed all the relevant evidence (see paragraph 49 above). Moreover, the deceased ’ s family were given regular detailed verbal briefings on the progress of the investigation and, together with their legal representatives, they were briefed on the IPCC ’ s conclusions (see paragraph 49 above). They were also fully briefed on the CPS ’ s conclusions (notably by means of a fifty-page Review Note and a follow-up final Review Note (see paragraphs 77, 79 and 133 above)), they were able to judicially review the decision not to prosecute, and they were represented at the inquest at the State ’ s expense, where they were able to cross-examine the seventy-one witnesses called and make representations. 242. Although there was some delay in handing the scene of the incident to the IPCC – a delay the IPCC criticised (see paragraph 56 above) – the applicant has not complained about it and there is nothing to suggest that the delay compromised the integrity of the investigation in any way, which on the whole was carried out promptly and with reasonable expedition. The DPS, an independent section of the MPS, was notified of the shooting within an hour of its occurrence and its officers were able to ensure the integrity of the scene in the early stages of the investigation (see paragraph 40 above). Furthermore, while the IPCC identified issues which could have been addressed earlier had it been notified immediately (for example, the concern over the CCTV tapes at Stockwell underground station, the missing hard drives on the train, and the possible alteration of the surveillance log – see paragraph 56 above), none of these issues proved to be central to the investigation which followed. 243. In the Court ’ s view, the above considerations are important to bear in mind when considering the proceedings as a whole, in view of the applicant ’ s specific complaints which solely concern certain aspects of the adequacy of the investigation. As set out in the general principles above, in order to be “adequate” the investigation must be capable of leading to a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible. Having regard to the facts of the present case, the applicant contends (a) that the investigating authorities were unable to assess whether the use of force was justified because they were precluded from considering whether the apparently honest belief of Charlie 2 and Charlie 12 that the use of force was necessary was also a reasonable one; and (b) that deficiencies in the criminal justice system in England and Wales undermined the investigation ’ s ability to lead to the punishment of those responsible. (i) Adequacy of the investigation: were the authorities able properly to consider whether the use of force was justified? ( α ) The test applied by the Court 244. The test consistently applied by the Court in determining whether the use of lethal force was justified is set out in McCann and Others (cited above, § 200). “[T]he use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.” 245. The Government have argued that the reasonableness of a belief in the necessity of lethal force should be determined subjectively. Although the applicant has accepted this, the third-party intervener has submitted that an honest belief should be assessed against an objective standard of reasonableness. It is, however, apparent both from the application of the stated test to the particular facts in McCann and Others itself and from the Court ’ s post McCann and Others case-law that the existence of “good reasons” should be determined subjectively. In a number of cases the Court has expressly stated that, as it is detached from the events in issue, it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life or the lives of others; rather, it must consider the events from the viewpoint of the person(s) acting in self-defence at the time of those events (see, for example, Bubbins v. the United Kingdom, no. 20196/99, § 139, ECHR 2005-II, and Giuliani and Gaggio, cited above, §§ 179 and 188). Consequently, in those Article 2 cases in which the Court specifically addressed the question of whether a belief was perceived, for good reasons, to be valid at the time, it did not adopt the standpoint of a detached observer; instead, it attempted to put itself into the position of the person who used lethal force, both in determining whether that person had the requisite belief and in assessing the necessity of the degree of force used (see, for example, Makaratzis v. Greece [GC], no. 50385/99, §§ 65-66, ECHR 2004 ‑ XI; Oláh v. Hungary (dec.), no. 56558/00, 14 September 2004; and Giuliani and Gaggio, cited above, § 189). 246. Moreover, in applying this test the Court has not treated reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held. In McCann and Others the Court identified the danger of imposing an unrealistic burden on law ‑ enforcement personnel in the execution of their duty. It therefore found no violation of Article 2 because the soldiers “honestly believed, in the light of the information that they had been given ... that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life” (see McCann and Others, cited above, § 200). A similar approach – that is, one focusing primarily on the honesty of the belief – can be seen in many other cases, including Andronicou and Constantinou (cited above, § 192), Bubbins (cited above, § 140), Golubeva v. Russia (no. 1062/03, § 102, 17 December 2009), Wasilewska and Kałucka v. Poland (nos. 28975/04 and 33406/04, § 52, 23 February 2010) and Giuliani and Gaggio (cited above, § 189). 247. In this regard, it is particularly significant that the Court has never found that a person purporting to act in self-defence honestly believed that the use of force was necessary but proceeded to find a violation of Article 2 on the ground that the belief was not perceived, for good reasons, to be valid at the time. Rather, in cases of alleged self-defence it has only found a violation of Article 2 where it refused to accept that a belief was honest (see, for example, Akhmadov and Others v. Russia, no. 21586/02, § 101, 14 November 2008, and Suleymanova v. Russia, no. 9191/06, § 85, 12 May 2010) or where the degree of force used was wholly disproportionate (see, for example, Gül, cited above, §§ 82-83). 248. It can therefore be elicited from the Court ’ s case-law that in applying the McCann and Others test the principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary. In addressing this question, the Court will have to consider whether the belief was subjectively reasonable, having full regard to the circumstances that pertained at the relevant time. If the belief was not subjectively reasonable (that is, it was not based on subjective good reasons), it is likely that the Court would have difficulty accepting that it was honestly and genuinely held. ( β ) Compatibility of the test applied in England and Wales 249. In the present case the coroner described the test to be applied as follows (see paragraph 106 above). “Did the officer honestly and genuinely believe that it was necessary for him to use force in defence of himself and/or others? This is a question of subjective belief. Even if the belief was mistaken, and even if the mistake was unreasonable, the defence can still run. The reasonableness of the belief is only relevant in helping the jury to decide whether the belief was honestly held.” 250. Although the Court has previously considered the compatibility of this test with Article 2 of the Convention, those cases do not assist the Court in its consideration of the one at hand. It is true that in Bennett v. the United Kingdom ((dec.), no. 5527/08, 7 December 2010) the Court expressly found that there was “no sufficiently great difference between the English definition of self-defence and the ‘ absolute necessity ’ test for which Article 2 provides”. However, the issue in Bennett was whether the test applied by the coroner, namely that the use of lethal force should be “reasonably justified”, was compatible with the “absolute necessity” requirement in Article 2 of the Convention. The Court was not, therefore, called upon to consider the compatibility of domestic law with the requirement that an honest belief be perceived, for good reasons, to be valid at the time. The issue did arise in Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000 ‑ I), in which the Court found that the approach taken by the domestic judge was compatible with the principles established in McCann and Others. However, the approach of the domestic judge in Caraher differs somewhat from the one adopted in the present case, and the Government have accepted the latter to be an accurate reflection of domestic law. 251. It is clear both from the parties ’ submissions and the domestic decisions in the present case that the focus of the test for self-defence in England and Wales is on whether there existed an honest and genuine belief that the use of force was necessary. The subjective reasonableness of that belief (or the existence of subjective good reasons for it) is principally relevant to the question of whether it was in fact honestly and genuinely held. Once that question has been addressed, the domestic authorities have to ask whether the force used was “absolutely necessary”. This question is essentially one of proportionality, which requires the authorities to again address the question of reasonableness, that is, whether the degree of force used was reasonable, having regard to what the person honestly and genuinely believed (see paragraphs 148 - 55 above). 252. So formulated, it cannot be said that the test applied in England and Wales is significantly different from the standard applied by the Court in McCann and Others and in its post McCann and Others case-law (see paragraphs 244 ‑ 48 above). Bearing in mind that the Court has previously declined to find fault with a domestic legal framework purely on account of a difference in wording which can be overcome by the interpretation of the domestic courts (see Perk and Others v. Turkey, no. 50739/99, § 60, 28 March 2006, and Giuliani and Gaggio, cited above, §§ 214-15), it cannot be said that the definition of self-defence in England and Wales falls short of the standard required by Article 2 of the Convention. 253. It is also clear that in the present case all the independent authorities considering the actions of Charlie 2 and Charlie 12 carefully examined the subjective reasonableness of their belief that Jean Charles de Menezes was a suicide bomber who might detonate a bomb at any second. In the Stockwell One Report the IPCC noted that the actions of Charlie 2 and Charlie 12 should be considered in light of the day ’ s events and those of the previous two weeks. In particular, it had regard to the SFO ’ s briefing, the positive identification of Mr de Menezes by the surveillance teams, the decision to go to State Red when the SFOs arrived at Stockwell, and the DSO ’ s order to “stop” Mr de Menezes (see paragraph 60 above). 254. The CPS also had regard to the fact that the events at Stockwell “ happened in a matter of seconds” and there was “some independent evidence that supports the officers ’ accounts that they feared Jean Charles might detonate a bomb” (see paragraph 78 above). The CPS further noted that if Charlie 2 and Charlie 12 did genuinely believe that they were acting in self-defence, then the actions that they took in shooting Mr de Menezes dead would be reasonable and not unlawful (see paragraph 83 above). 255. Similarly, the coroner made it clear that he had to consider the reasonableness of the belief of Charlie 2 and Charlie 12 that the use of force was necessary in order to decide whether or not it was honestly and genuinely held (see paragraph 106 above). 256. Consequently, it cannot be said that the domestic authorities failed to consider, in a manner compatible with the requirements of Article 2 of the Convention, whether the use of force by Charlie 2 and Charlie 12 was justified in the circumstances. (ii) Adequacy of the investigation: was it capable of identifying and – if appropriate – punishing those responsible? 257. Although the authorities should not, under any circumstances, be prepared to allow life-endangering offences to go unpunished, the Court has repeatedly stated that the investigative obligation under Article 2 of the Convention is one of means and not result (see paragraph 233 above). In older cases, the Court stated that “the investigation should be capable of leading to the identification and punishment of those responsible” (see Oğur, cited above, § 88). However, in more recent case-law this requirement has been further refined so as to require that the investigation be “capable of leading to a determination of whether the force used was or was not justified in the circumstances ... and of identifying and – if appropriate – punishing those responsible” (see Giuliani and Gaggio, cited above, § 301; see also Mustafa Tunç and Fecire Tunç, cited above, § 172 ). It therefore follows that Article 2 does not entail the right to have third parties prosecuted – or convicted – for a criminal offence (see Mastromatteo, cited above, § 90, and Šilih, cited above, § 194). Rather, the Court ’ s task, having regard to the proceedings as a whole, is to review whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by Article 2 of the Convention (see Öneryıldız, cited above, § 95). 258. As noted at paragraph 241 above, there is nothing before the Court to suggest that in the present case the domestic authorities failed to secure the relevant physical or forensic evidence, or to seek out relevant witnesses or relevant information. Furthermore, the secured evidence was thoroughly analysed and assessed by the IPCC, an independent investigatory body which took witness statements from nearly 890 people and collected more than 800 exhibits; by the CPS; by a judge and jury during the criminal trial of the OCPM, at which forty-seven witnesses were called to give evidence; and by a coroner and jury during the inquest at which seventy-one witnesses were called (see paragraphs 45 - 71, 77-101 and 103 - 27 ). The applicant has not sought to argue the contrary. Therefore, the sole issue before the Court is whether the decision not to prosecute individual officers, and to prosecute only the OCPM in its capacity as an employer of police officers, could itself constitute a procedural breach of Article 2 of the Convention. 259. To date, the Court has not faulted a prosecutorial decision which flowed from an investigation which was in all other respects Article 2 compliant. In fact, it has shown deference to Contracting States both in organising their prosecutorial systems and in taking individual prosecutorial decisions. In Kolevi (cited above) the Court made it clear that “[it] is not oblivious to the fact that a variety of State prosecution systems and divergent procedural rules for conducting criminal investigations may be compatible with the Convention, which does not contemplate any particular model in this respect ... Independence and impartiality in cases involving high-ranking prosecutors or other officials may be secured by different means, such as investigation and prosecution by a separate body outside the prosecution system, special guarantees for independent decision-making despite hierarchical dependence, public scrutiny, judicial control or other measures. It is not the Court ’ s task to determine which system best meets the requirements of the Convention. The system chosen by the member State concerned must however guarantee, in law and in practice, the investigation ’ s independence and objectivity in all circumstances and regardless of whether those involved are public figures.” ( § 208) 260. Likewise, in Brecknell v. the United Kingdom (no. 32457/04, § 81, 27 November 2007), although the Court held that the initial investigative response lacked the requisite independence (and was therefore in breach of the procedural limb of Article 2), it found no grounds on which to criticise a decision not to prosecute where it was not “apparent that any prosecution would have any prospect of success” and where it could not “impugn the authorities for any culpable disregard, discernible bad faith or lack of will”. In Brecknell the application was lodged nearly three decades after the death in issue; nevertheless, it clearly demonstrates the Court ’ s reluctance to interfere with a prosecutorial decision taken in good faith following an otherwise effective investigation. 261. That being said, the Court has, on occasion, accepted that “institutional deficiencies” in the criminal justice or prosecutorial system may breach Article 2 of the Convention. In Kolevi (cited above, § 209) the Court found that such deficiencies in the prosecutorial system resulted in the absence of sufficient guarantees for an independent investigation into offences potentially committed by the Chief Public Prosecutor. In particular it found that the centralised structure of the prosecutorial system made it “practically impossible to conduct an independent investigation into circumstances implicating [the Chief Public Prosecutor]”. Although there was no such obstacle to an effective investigation in the present case, the applicant has argued that there were other obstacles preventing any meaningful prosecutions. If such obstacles existed, they could enable life-endangering offences to go unpunished and, as such, give rise to the appearance of State tolerance of – or collusion in – unlawful acts. Consequently, it will be necessary for the Court to consider each of the applicant ’ s submissions in turn in order to determine whether there were any “institutional deficiencies” giving rise to a procedural breach of Article 2 of the Convention. ( α ) The CPS 262. In England and Wales the decision whether to prosecute is taken by a prosecutor in the CPS. The Government have asserted – and the applicant has not contested – that the CPS was independent for the purposes of Article 2 of the Convention. In serious cases such as the one at hand, the decision is taken by a senior prosecutor having first taken independent legal advice. The Court has never stated that the prosecutorial decision must be taken by a court (see, for example, Hugh Jordan, cited above, §§ 122-24, in which the Court did not take issue with the fact that the prosecutorial decision was taken by a public official). Indeed, in at least twenty-five Contracting States the decision to prosecute is taken by a public prosecutor (see paragraph 175 above). Consequently, the fact that the decision is taken by a public official is not problematic in and of itself, provided that there are sufficient guarantees of independence and objectivity. 263. Furthermore, the Court does not consider that Maksimov (cited above) can be interpreted as authority for the proposition that prosecutors should hear oral testimony from witnesses before taking decisions. In that case, the prosecutorial decision had been taken without any independent investigatory body hearing oral testimony from important witnesses. The situation in the case at hand is quite different, as the IPCC, an independent investigatory body, had conducted a thorough investigation which included interviewing all relevant witnesses and the CPS had access to its findings in taking its prosecutorial decisions (see paragraph 80 above). Moreover, an examination and cross-examination of witnesses was conducted before the coroner at the inquest and he concluded that there was no evidence capable of being left to a jury that could establish unlawful killing in relation to any individual police officer (see paragraphs 103-27 above). Following the inquest, the CPS reviewed its original decision but concluded that there was still insufficient evidence to prosecute any individual (see paragraph 133 above). In such a case, there is nothing in the Court ’ s case-law to suggest that an independent prosecutor must also hear oral testimony before deciding whether or not to prosecute. 264. Consequently, the Court does not consider that the applicant ’ s complaints concerning the role and organisation of the CPS disclose any “institutional deficiencies” which prevented the authorities from adequately securing the accountability of those responsible for the death of Mr de Menezes. ( β ) The threshold evidential test 265. As the Government have explained, in deciding whether proceedings for an offence should be instituted, prosecutors in England and Wales have to apply a two-stage test: firstly, they must ask whether there is enough evidence to provide a “realistic prospect of conviction” against each defendant on each charge (the threshold evidential test); and, secondly, they must decide if a prosecution is needed in the public interest (see paragraph 163 above). In deciding whether there is a realistic prospect of conviction, they should not apply an arithmetical “51% rule”; rather, they should ask whether a conviction is “more likely than not” (see paragraph 164 above). 266. It is not in dispute that States should be permitted to have a threshold evidential test to prevent the financial and emotional costs of a trial being incurred where there are weak prospects of success. In Gürtekin and Others v. Cyprus ((dec.), nos. 60441/13 and 2 others, 11 March 2014) the Court implicitly recognised this: “A prosecution, particularly on such a serious charge as involvement in mass unlawful killings, should never be embarked upon lightly as the impact on a defendant who comes under the weight of the criminal justice system is considerable, being held up to public obloquy, with all the attendant repercussions on reputation, private, family and professional life. Given the presumption of innocence enshrined in Article 6 § 2 of the Convention, it can never be assumed that a particular person is so tainted with suspicion that the standard of evidence to be applied is an irrelevance. Rumour and gossip are a dangerous basis on which to base any steps that can potentially devastate a person ’ s life.” (§ 27) 267. Moreover, for the following reasons the Court considers that Contracting States should be accorded a certain margin of appreciation in setting that threshold. 268. Firstly, in setting the threshold evidential test the domestic authorities are required to balance a number of competing interests, including those of the victims, the potential defendants and the public at large and those authorities are evidently better placed than the Court to make such an assessment. In this regard, it is clear that the threshold applied by prosecutors in England and Wales is not an arbitrary one. On the contrary, it has been the subject of frequent reviews, public consultations and political scrutiny. In particular, detailed reviews of the Code were carried out in 2003, 2010 and 2012. It is also a threshold that applies across the board, that is, in respect of all offences and by whomsoever they were potentially committed. 269. Secondly, there is no uniform approach among Contracting States with regard to the threshold evidential test employed in their legal systems. A written threshold evidential test exists in at least twenty-four Contracting States (see paragraph 176 above). In principle, in twenty of those States the threshold test focuses on the sufficiency of evidence against the suspect; however, in practice it is impossible to state with any certainty that the prosecutorial decision-makers in those States do not also take into consideration the prospect of securing a conviction. In the four countries where the test expressly focuses on the prospect of conviction, the tests differ. In Austria, the test is “the likelihood of conviction”; in Iceland, the question is whether the evidence is “sufficient or probable for conviction”; in the former Yugoslav Republic of Macedonia, it is whether there exists “enough evidence from which the prosecutor can expect a conviction”; and in Portugal, “a reasonable possibility of imposing a penalty at trial” (see paragraph 178 above). 270. In any event, the threshold evidential test has to be viewed in the context of the criminal justice system taken as a whole. While the threshold adopted in England and Wales may be higher than that adopted in certain other countries, this reflects the jury system that operates there. Once a prosecution has been brought, the judge must leave the case to the jury as long as there is “some evidence” on which a jury properly directed could convict, even if that evidence is “of a tenuous nature” (this being the so ‑ called Galbraith test – see paragraph 166 above). As weak or unmeritorious cases cannot be filtered out by the trial judge, the threshold evidential test for bringing a prosecution may have to be a more stringent one. In this regard, it is significant that other common-law countries appear to have adopted a similar threshold to the one applied by prosecutors in England and Wales (see paragraphs 182 - 85 above). 271. In the circumstances, it cannot be said that the threshold evidential test in England and Wales was so high as to fall outside the State ’ s margin of appreciation. In Brecknell, a case concerning Northern Ireland, the Court indicated that Article 2 did not require States to prosecute cases where it was not apparent that prosecution would have any prospect of success (see paragraph 260 above). This is very similar to the test of “realistic prospect of conviction” applied in England and Wales and the fact that it has subsequently been interpreted by the domestic courts and authorities to mean that a conviction should be “more likely than not” does not, in the Court ’ s opinion, suffice to bring it outside the State ’ s margin of appreciation. In any case, it is impossible to state with any certainty that the test in England and Wales is higher than those employed in the four member States which also have a threshold focusing on the prospect of conviction (see paragraph 178 above). 272. The applicant has suggested that the threshold should be lower in cases involving the use of lethal force by State agents. However, there is nothing in the Court ’ s case-law to support this proposition. Although Gürtekin did not concern unlawful killing by State agents, in that case the Court made it clear that the fact that a crime engaging Article 2 of the Convention was particularly “serious” (in that case, mass killings) was not a sufficient reason to prosecute individuals regardless of the strength of the evidence. On the contrary, it found that since the consequences of a prosecution on such serious charges would be particularly severe for any defendant, it should not be lightly embarked upon (see paragraph 266 above). 273. The same considerations apply in cases concerning the use of lethal force by State agents. It is true that public confidence in both the law-enforcement agencies and the prosecution service could be undermined if State agents were not seen to be held accountable for the unjustifiable use of lethal force. However, such confidence would also be undermined if States were required to incur the financial and emotional costs of trial in the absence of any realistic prospect of conviction. The authorities of the respondent State are therefore entitled to take the view that public confidence in the prosecutorial system is best maintained by prosecuting where the evidence justifies it and not prosecuting where it does not (see paragraph 217 above). 274. In any case, it is clear that the domestic authorities have given thorough consideration to lowering the threshold in cases engaging the responsibility of the State, but decided that it would be both unfair and inconsistent to place an increased burden on potential defendants in these cases. Nevertheless, they did ensure that a number of safeguards were built into the system in cases of police shootings and deaths in custody: the DPP personally reviews all charging decisions; in all cases other than the most straightforward a decision not to prosecute has to be reviewed by independent counsel; the prosecutor has to write to the family of the victim to explain his or her decision; and the family has to be offered a meeting with the prosecutor to explain the decision (see paragraph 220 above). While it is true that there are not frequent prosecutions for police killings in the United Kingdom (as submitted by the third-party intervener at paragraph 228 above), this can be explained by the extremely restrictive policy on the use of firearms by State agents (see paragraph 221 above). As the Government have pointed out, between 2003/04 and 2012/13, the annual number of police operations resulting in the discharge of weapons has always been in single figures, even though the annual number of operations in which the use of weapons has been authorised has ranged from ten thousand to twenty thousand (see paragraph 221 above). 275. Furthermore, in the present case it is by no means certain or even likely that individual police officers could have been prosecuted had the Galbraith test been the threshold evidential test for bringing a prosecution against them (that is, if there only had to be some evidence, even if it was of a tenuous character). Indeed, on the facts of the present case the contrary is so, given that the self-same test was used by the coroner, an independent judicial officer, in deciding whether to leave a verdict of unlawful killing to the jury and, after hearing seventy-one witnesses, he concluded that the test was not satisfied in relation to any of the individual police officers concerned (see paragraphs 103 - 27 above). That being said, even if individual prosecutions had been possible had the threshold evidential test been the Galbraith test, it would not follow that the threshold in England and Wales was so high as to be in breach of Article 2. 276. In light of the above, the Court does not consider that the threshold evidential test applied in England and Wales constituted an “institutional deficiency” or failing in the prosecutorial system which precluded those responsible for the death of Mr de Menezes from being held accountable. ( γ ) Review of prosecutorial decisions 277. As already noted, a decision not to prosecute is susceptible to judicial review in England and Wales but the power of review is to be sparingly exercised; the courts can only interfere if a prosecutorial decision is wrong in law (see paragraph 165 above). 278. Nevertheless, the Court is not persuaded by the applicant ’ s argument that the scope of review is too narrow. In Gürtekin (cited above, § 28) the Court noted that the procedural obligation in Article 2 did not necessarily require that there should be judicial review of investigative decisions, although such reviews were doubtless a reassuring safeguard of accountability and transparency. The Court further noted that it was not its role to micro-manage the functioning of, and procedures applied in, criminal investigative and justice systems in Contracting States which may well vary in their approach and policies. Likewise, in Mustafa Tunç and Fecire Tunç (cited above, § 233), the Court held that while the intervention of a court or a judge enjoying sufficient statutory safeguards of independence was a supplementary element enabling the independence of the investigation as a whole to be guaranteed, it was not in itself an absolute requirement. 279. According to the information available to the Court, the decision not to prosecute is susceptible to some form of judicial review or appeal to a court of law in at least twenty-five Contracting States and in these countries the standard of review varies considerably. In seven of these countries the decision must first be contested before a hierarchical superior in the prosecution service. In twelve countries, the decision of the prosecutor may only be contested before such a hierarchical superior (see paragraph 181 above). Consequently, it cannot be said that there is any uniform approach among member States with regard either to the availability of review or, if available, the scope of that review. 280. In England and Wales there was, at the relevant time, a right to have prosecutorial decisions judicially reviewed by an independent court. In view of the fact that the prosecutorial decision in the case at hand was made by a senior independent prosecutor, having first taken independent legal advice, and the reasons for that decision were fully explained to the family of the deceased, the Court finds nothing in its case-law which would support the applicant ’ s assertion that Article 2 required the Administrative Court to have greater powers of review. In any event, the Court notes that in the present case the Administrative Court had regard to this Court ’ s case-law, in particular the requirement of “careful scrutiny” enunciated in Öneryıldız. Moreover, it did not simply find that the prosecutor ’ s decision had not been irrational; although not required to go so far, it expressly indicated that it agreed with the prosecutor ’ s conclusions (see paragraph 98 above). 281. In light of the above, the Court does not consider that the scope of judicial review of prosecutorial decisions in England and Wales could be described as an “institutional deficiency” which impacted upon the ability of the domestic authorities to ensure that those responsible for the death of Mr de Menezes were held to account. (δ) Partial conclusion 282. Accordingly, having regard to the criminal proceedings as a whole, the applicant has not demonstrated that there existed any “institutional deficiencies” in the criminal justice or prosecutorial system which gave rise – or were capable of giving rise – to a procedural breach of Article 2 of the Convention on the facts of the instant case. (iii) Overall conclusion on the applicant ’ s Article 2 complaint 283. The facts of the present case are undoubtedly tragic and the frustration of Mr de Menezes ’ family at the absence of any individual prosecutions is understandable. However, it cannot be said that “any question of the authorities ’ responsibility for the death ... was left in abeyance” (compare, for example, Öneryıldız, cited above, § 116, in which there had been no recognition of the responsibility of the public officials for the death of the applicant ’ s relatives ). As soon as it was confirmed that Mr de Menezes had not been involved in the attempted attack on 21 July 2005, the MPS publicly accepted that he had been killed in error by SFOs. A representative of the MPS flew to Brazil to apologise to his family face-to-face and to make an ex gratia payment to cover their financial needs. They were further advised to seek independent legal advice and assured that any legal costs would be met by the MPS. The individual responsibility of the police officers involved and the institutional responsibility of the OCPM were subsequently considered in depth by the IPCC, the CPS, the criminal court and the coroner and jury during the inquest. Later, when his family brought a civil claim for damages, the MPS agreed to a settlement with an undisclosed sum being paid in compensation. 284. As the Government have pointed out, sometimes lives are lost as a result of failures in the overall system rather than individual error entailing criminal or disciplinary liability. Indeed, in McCann and Others the Court implicitly recognised that in complex police operations failings could be institutional, individual or both. In the present case, both the institutional responsibility of the police and the individual responsibility of all the relevant officers were considered in depth by the IPCC, the CPS, the criminal court, the coroner and the inquest jury. The decision to prosecute the OCPM as an employer of police officers did not have the consequence, either in law or in practice, of excluding the prosecution of individual police officers as well. Neither was the decision not to prosecute any individual officer due to any failings in the investigation or the State ’ s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to meet the threshold evidential test in respect of any criminal offence. Nevertheless, institutional and operational failings were identified and detailed recommendations were made to ensure that the mistakes leading to the death of Mr de Menezes were not repeated. In its Review Note the CPS clearly stated that Operation THESEUS 2 had been badly handled from the moment it passed from Commander McDowall to Commander Dick; that a lack of planning had led to the death of Jean Charles de Menezes; and that the institutional and operational failures were “serious, avoidable, and led to the death of an innocent man”. 285. These institutional failures resulted in the conviction of the OCPM for offences under the 1974 Act, which the applicant did not consider to be a sufficiently weighty offence to satisfy the procedural requirements of Article 2 of the Convention. However, this is not a case of “manifest disproportion” between the offence committed and the sanction imposed (see, for example, Kasap and Others, cited above, § 59; A. v. Croatia, cited above, § 66; and Ali and Ayşe Duran, cited above, § 66 ). The cases in which the Court found such “manifest disproportion” are cases in which individuals were found guilty of serious offences but given excessively light punishments. In the present case an independent prosecutor weighed all the evidence in the balance and decided that there was only sufficient evidence to prosecute the OCPM for offences under the 1974 Act. Moreover, having found the OCPM to be guilty as charged, there is no evidence before the Court to indicate that the “punishment” (a fine of 175,000 pounds sterling (GBP) and costs of GBP 385,000) was excessively light for offences of that nature. 286. Consequently, having regard to the proceedings as a whole, it cannot be said that the domestic authorities have failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which was capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible. 287. In light of this conclusion, it is not necessary for the Court to consider the role of private prosecutions or disciplinary proceedings in fulfilling the State ’ s procedural obligations under Article 2 of the Convention. 288. Accordingly, the Court finds that in the present case no violation of the procedural aspect of Article 2 of the Convention has been established. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 289. The applicant complained that the decision not to prosecute any individual for the death of her cousin also constituted a procedural violation of Article 3 of the Convention. 290. In the absence of any evidence to suggest that Mr de Menezes was subjected to ill-treatment within the meaning of Article 3, the Court considers this complaint to be manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION READ TOGETHER WITH ARTICLES 2 AND/OR 3 291. The applicant further complained that as the investigation into Mr de Menezes ’ death was incapable of leading to the prosecution of any individual, she had been denied an effective remedy in respect of her Article 2 and Article 3 complaints. 292. As the essence of the applicant ’ s complaint is that no individual was prosecuted for her cousin ’ s death, the Court considers that it more properly falls to be considered under the procedural aspect of Article 2 of the Convention. 293. Accordingly, the Court also considers this complaint to be manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
The Court held that there had been no violation of Article 2 (right to life – investigation) of the Convention. Having regard to the proceedings as a whole, it found that the UK authorities had not failed in their obligations under Article 2 of the Convention to conduct an effective investigation into the shooting of the applicant’s cousin which was capable of identifying and – if appropriate – punishing those responsible. In particular, the Court considered that all aspects of the authorities’ responsibility for the fatal shooting had been thoroughly investigated. Both the individual responsibility of the police officers involved and the institutional responsibility of the police authority had been considered in depth by the Independent Police Complaints Commission, the Crown Prosecution Service, the criminal court and the Coroner and jury during the Inquest. The decision not to prosecute any individual officer was not due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to prosecute.