Letter from Ken Macdonald QC, Director of Public Prosecutions to the Murden Family - 3rd October 2006
(This we were asked not to disclose then as the case was still sub judice and there was also a threat of an injunction by the Police on publishing anything further about the case)
NOTE: Italicised sentences and bracketed numbers refer to points in the following document to this, the Murden family response to this letter.
Dear Mr and Mrs Murden,
We have not previously corresponded and therefore I would like first to take this opportunity to express to you my deepest sympathy for your bereavement and for the great distress you must have suffered since your son Simon's death on 22 March 2005.
I know that you have spoken to Sheelaugh Judge on a number of occasions and that she has kept you informed of the review of the evidence. As the Director of Public Prosecutions I take a close interest in the most sensitive cases that come to the CPS and when I heard about the circumstances of Simon's death, I asked Ms Judge to keep me informed about the evidence and her views on the prospects of conviction.
Having reviewed all the available evidence and with the benefit of counsel's advice, Ms Judge reached the conclusion that the evidence was sufficient to justify the institution of proceedings against both firearms officers.(1). This conclusion was recorded in her Decision Document, dated 3 May 2006.
In accordance with internal CPS procedures, the papers were drawn to my attention. I had reservations about the sufficiency of the evidence against either of the firearms officers. In subsequent consultation with counsel, Robert Smith QC and Adrian Waterman QC, and Ms Judge I remained doubtful of the sufficiency of the evidence. Counsel and Ms Judge remained for their part satisfied that the evidence did meet the test set out in the Code for Crown Prosecutors. This is the test that requires a Crown prosecutor to be satisfied that there is a realistic prospect of convicting a defendant of the charge alleged. A realistic prospect of conviction is the prospect that a jury (in a case such as this), properly directed in accordance with the law, is more likely than not to convict the defendant of the charges alleged. In view of this continuing difference of opinion(2), I decided that I should assume responsibility for reviewing the case and taking the final decision on whether either or both of the firearms officers who fired the fatal shots should be prosecuted for any offence. I will not repeat an account of the events leading to Simon's tragic death as they are already well known to you and I will only refer to those aspects that are relevant to explain my decision.
Like Counsel and Ms Judge, the principal offence I considered was that of murder. As the other elements of the offence were satisfied, the only issue was whether the officers were acting unlawfully when they shot Simon. That issue depends on the application of the common law of 'self-defence' and the provision of section 3 Criminal Law Act 1967.(3).Self-defence is an absolute defence to murder, manslaughter or any other assault-based offence. Once self-defence is an issue, the burden is then on the prosecution to prove that the defendant was not acting in self-defence. If the prosecution cannot discharge that burden, the defendant will be deemed to have acted lawfully and will be acquitted. It is clear that the circumstances of Simon's death raise that issue and the officers have already done so in their prepared statements and during interview.
In order to be able to prosecute, we have have to prove beyond reasonable doubt that the officers did not genuinely and honestly believe that force was necessary to protect either themselves or another(4).; or alternatively, that even if they (or either of them) did genuinely and honestly hold that belief, they/he used a degree of force that was not reasonable in the circumstances(5) that they/he believed to exist. This is the two-stage nature of the legal principle of self-defence.
We would have to accept the following facts:
- The officers were faced with a man who was, and was known to be, in an unpredictable mental state(6);
- He was carrying some form of weaponry(7);
- He was approaching an area were unprotected members of the public were present;
- He ignored repeated commands to stop;
- Even when struck by baton rounds he demonstarted a determination to proceed towards the populated area(8).
In order to overcome the first stage of the self-defence principle, the prosecution would have to satisfy the jury beyond reasonable doubt that, even though the officers shot Simon, they nevertheless did not honestly and genuinely believe that he posed a threat to them and/or others(9). I do not believe that the evidence is sufficient to disprove the officers' assertions that they honsetly and genuinely believed that Simon posed a threat to themselves and/or others.
That is not the end of the matter, however. If the defendant personally holds that belief he must nevertheless respond to the threat in a way which objectively would be considered to be reasonable. This, I believe, is the narrow but critical point on which the decision in this case balances. Accepting that the officers did honestly and genuinely believe that Simon posed a threat to themselves and/or others, was their response reasonable?(10)
The law recognises that if self-defence is necessary, a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action(11) and that if in a moment of anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be strong evidence that only reasonable defensive action had been taken.
I do not believe that the prosecution could satisfy a jury to the criminal standard of proof that it was not reasonable for the officers to attempt to stop Simon by the use of baton rounds.
Clearly, the use of baton rounds did not have the desired effect. The threat remained the same and I am unable to conclude that, in those circumstances, their resort to the use of their firearms was unreasonable. I do not believe that the prosecution could satisfy a jury beyond reasonable doubt that the officers were not lawfully acting in defence of themselves and/or others.
This conclusion leads me to the inevitable conclusion that there is not a realistic prospect of convicting either of the officers for murder.
In the course of reaching this conclusion I have considered whether it would be realistic to distinguish between the shots fired by each of the firearms officers. I do not believe that a prosecution case that sought to draw a distinction between the number or timing of those shots would hold any greater prospect of a conviction. In my opinion, a jury would be unlikely to conclude that a response that was legitimately in self-defence at one moment became a murder a few seconds later (leaving to one side any difficulties over causation). I stress that the final, tragic outcome of this sequence took place in a matter of seconds(12), not minutes. In my opinion, a jury would be likely to conclude that this was, in effect, a single incident, involving both officers to the same degree. I do not believe a jury would seek to distinguish between the respective roles of the officers, or between different stages of the single incident.
Finally, I should add that I have considered whether there is a realistic prospect of convicting either officer of gross negligence manslaughter(13), on the basis that they were grossly negligent in resorting to lethal weapons once the use of baton rounds had not stopped Simon. But I see no realistic prospect of a jury reaching this conclusion, for the same reasons that would compel them towards accepting that the officers were acting in self-defence.
I recognise that the contents of this letter may come as a great disappointment to you, but I have given this tragic case the most careful consideration. It is now eighteen months since Simon died and I accept that I cannot know the pain you must still feel at losing him in such a way. I can only offer you my condolences at his tragic and untimely death and wish that, with the support of your family and friends, you can hope to rebuild your lives(15).
If you wish me to explain my decision(14) to you in person then please let me know and I will ensure that arrangements for this are made.
Ken Macdonald QC
Director of Public Prosecutions
The Murden Family reply to the letter from the DPP (above)
How is it that Ms Sheelagh Judge, Mr Smith and Mr Waterman were unanimous in their decision on their first meeting on May 3rd 2006? A result that Sheelagh explained to us was highly unusual for three barristers to agree totally about all aspects of a case.
‘Continuing difference of opinion’ i.e. your view against that of 3 highly experienced and qualified barristers.
What constitutes ‘self defence’ in the Criminal Law Act 1967?
How is it proved ‘beyond reasonable doubt’ – officers did ‘genuinely and honestly believe, etc’ – is it merely their collaborative words against a dead man and simply their subjective opinion which is hard to gainsay. They had three months to prepare their story.
What constitutes a ‘reasonable degree of force’ in these circumstances?
‘Unpredictable mental state’ – all officers trained to manage special populations – knew he wasn’t well – needed to be calmly handled – shouting was no good. Use of his spoken name.
’Carrying some form of weaponry’ – they knew it wasn’t a fire arm, cross bow or any other projectile weapon!
‘Baton rounds’ – only 2 – one didn’t hit him – 1 officer reloading his baton gun. How did Simon, they say, ‘demonstrate’ a ‘determination’ to move 150 yards to a ‘populated area’?
What degree of threat did they believe he posed? Someone ’armed’ with three ornamental swords who could have easily been overpowered – how is that a threat?.
‘Objectivity would be considered reasonable’ ‘Narrow but critical point on which the decision in this case balances’ Was their response reasonable? I.P.P.C at the beginning said part of investigation would be around whether this was a proportionate response to Simon’s behaviour given all the facts. He was not demonstrating any form of aggression before or after he was shot with the baton round.
‘a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action’ An armed officer who repeatedly has to cock his gun in order to fire is definitely weighing to a nicety the exact measure of his defensive action. An armed officer who changes from his baton gun to use a powerful handgun to join in with one shot is also definitely weighing to a nicety the exact measure of his defensive action!
‘a matter of seconds’ has that been tested out and is it in the forensic reports? – the word ‘seconds’ again acts as an exoneration.