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Publication:A 324
Title:McCann and others v. The United Kingdom
Application No:18984/91
Respondent:The United Kingdom
Referred by:Commission
Date of reference by Commission:24-05-1994
Date of reference by State:
Date of Judgment:27-09-1995
Articles:2
50
Conclusion:Violation of article 2
Compensation awarded for costs and expenses
Keywords:LIFE

Summary:
The applicants are parents of McCann, Farrell and Savage, who were shot dead on 6 March 1988 in Gibraltar by members of the Special Air Service (the 'SAS'), which is a regiment of the British Army. Prior to 4 March 1988, the United Kingdom, Spanish and Gibraltar authorities were aware that the Provisional IRA was planning a terrorist attack on Gibraltar. On that date it was reported that an IRA 'active service unit' had been sighted in Malaga in Spain. By 5 March the intelligence assessment of the British and Gibraltar authorities was that the IRA unit (which had been identified) would carry out an attack by means of a car bomb which would probably be detonated by a remote control device. It was planned to arrest the members of the unit after they had brought the car into Gibraltar, which would provide evidence to be secured for use at a subsequent trial. However, the members of the unit were considered by the authorities to be dangerous terrorists who would almost certainly be armed and who would be likely, if confronted by security forces, to use their weapons or detonate the bomb. Savage was seen in the afternoon of 6 March 1988 parking a car in Gibraltar. He was later seen, together with McCann and Farrell, staring towards the spot where the car was parked. After all three had moved away from the car, a bomb disposal expert reported after cursory visual examination that he regarded it as a possible car bomb. It was decided at this point that the three should be arrested. Soldiers of the SAS in plain clothes were standing by for that purpose. Control of the operation was handed over by the Gibraltar Police Commissioner to their commanding officer. Allegedly thinking that the three suspects were trying to detonate remote control divices, the soldiers shot them at close range. No weapons or detonator devices were found on the bodies of the three suspects. The car which had been parked by Savage was revealed on inspection not to contain any explosive device or bomb. However, another car was found to contain an explosive device. An inquest by the Gibraltar Coroner into the killings was opened on 6 September 1988. It was presided over by the Coroner who sat with a jury chosen from the local population. Evidence was heard from 79 witnesses, including the soldiers, police officers and surveillance personnel involved in the operation as well as pathologists, forensic scientists and experts on explosive devices. Pursuant to certificates issued by the Government, certain information, such as the identities, training, equipment and activities of the military and security-service witnesses, was not disclosed. On 30 September 1988, the jury returned verdicts of lawful killing. Dissatisfied with these verdicts, the applicants commenced actions against the Ministry of Defence in the High Court of Justice in Northern Ireland on 1 March 1990. The Secretary of State for Foreign Affairs, however, issued certificates excluding proceedings against the Crown. The applicants unsuccessfully sought leave to apply for judicial review to challenge the legality of the certificates. The actions were finally struck off the list on 4 October 1991.

The European Court of Human Rights first observed that Article 2 ranks as one of the most fundamental provisions in the Convention. It considered that the exceptions delineated in paragraph 2 indicate that this provision extends to cover, but is not concerned exclusively with, intentional killing. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to 'use force' which may result, as an unintended outcome, in the deprivation of life. The use of force must be no more than 'absolutely necessary' for the achievement of one of the purposes set out in subparagraphs (a), (b) or (c). The Court stated that it must subject deprivations of life to the most careful scrutiny, if deliberate lethal force is used, taking into consideration not only the actions of the agents of the State, but also the surrounding circumstances including the planning and control of the actions under examination. In connection with the compatibility of national law and practice with Article 2 standards the Court noted that Article 2 of the Gibraltar Constitution is similar to Article 2 of the Convention with the exception that the standard of justification for the use of force which results in the deprivation of life is that of 'reasonably justifiable' and opposed to 'absolutely necessary'. While the Convention standard appeared on its face to be stricter than the relevant national standard, it had been submitted by the Government that, having regard to the manner in which the standard was interpreted and applied by the national courts, there was no significant difference in substance between the two concepts. In the Court's view, the difference between the two standards is not so great that a violation of Article 2-1 could be found on this ground alone. With respect to the adequacy of the Inquest proceedings as an investigative mechanism, the Court observed that 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 required that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by agents of the State. However, it was not necessary for the Court to decide what form such an investigation should take and under what conditions it should be conducted, since public inquest proceedings in which the applicants were legally represented, and which involved the hearing of seventy-nine witnesses, had in fact taken place. Moreover, the lawyers acting on behalf of the applicants were able to examine and cross-examine key witnesses, including the military and police personnel involved in the planning and conduct of the anti-terrorist operation, and to make the submissions they wished to make in the course of the proceedings. Against this background, the Court did not consider that the alleged various shortcomings in the inquest proceedings substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings. On this ground there had thus been no breach of Article 2-1.

The Court then applied Article 2 to the facts. The Court noted that neither the Government nor the applicants had sought to contest the facts as they had been found by the Commission, though they differed fundamentally as to the conclusions to be drawn from them under Article 2. It took the Commission's establishment of the facts and various findings to be an accurate and reliable account of the facts underlying the present case. With respect to the question whether the applicants' allegation that the killings were premeditated, the Court observed that it would need to have convincing evidence before it could conclude that there was a premeditated plan to kill the suspects. It did not find established that there was an execution plot at the highest level of command in the Ministry of Defence or in the Government, or that soldiers A, B, C and D had been so encouraged or instructed by superior officers or indeed that they had decided on their own initiative to kill the suspects. Nor was there evidence that there was an implicit encouragement by the authorities or hints and innuendoes to execute the three suspects. As far as the conduct and planning of the operation was concerned, the Court observed that in carrying out its examination under Article 2 it must bear in mind that the information that the United Kingdom authorities received presented them with a fundamental dilemma. On the one hand, they were required to have regard to their duty to protect the lives of the people of Gibraltar, including their own military personnel and, on the other, to have minimum resort to the use of lethal force against the suspects in the light of the obligations flowing from both domestic and international law.

Several other factors had also to be taken into consideration. In the first place, the authorities were confronted by an active service unit of the IRA composed of persons who had been convicted of bombing offences, and a known explosives expert. The IRA, judged by its actions in the past, had demonstrated a disregard for human life, including that of its own members. Secondly, the authorities had had prior warning of the impending terrorist action and thus had ample opportunity to plan their reaction and, in coordination with the local Gibraltar authorities, to take measures to foil the attack and arrest the suspects. Inevitably, however, the security authorities could not have been in possession of the full facts and were obliged to formulate their policies on the basis of incomplete hypotheses. The soldiers who carried out the shooting (A, B, C and D) were informed by their superiors that there was a car bomb in place which could be detonated by any of the three suspects by means of a radio-controlled device which might have been concealed on their persons; that the device could be activated by pressing a button; that they would be likely to detonate the bomb if challenged, thereby causing heavy loss of life and serious injuries, and were also likely to be armed and to resist arrest. However, it was subsequently discovered that the suspects were unarmed, that they did not have a detonating device on their persons and that there was no bomb in the car. The Court accepted that the soldiers believed that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life. The actions which they took, in obedience to superior orders, were thus perceived as absolutely necessary in order to safeguard innocent lives. It considered that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 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. Having regard to the dilemma confronting the authorities in the circumstances of the case, the reactions of the soldiers did not, in themselves, give rise to a violation of Article 2.

In connection with the control and organisation of the operation the Court first observed that it had been the intention of the authorities to arrest the suspects at an appropriate stage and that evidence had been given at the Inquest that arrest procedures had been practised by the soldiers before 6 March and that efforts had been made to find a suitable place to detain the suspects after their arrest. It questioned why the three suspects had not been arrested at the border immediately on their arrival in Gibraltar and why the decision was taken not to prevent them from entering Gibraltar if they were believed to be on a bombing mission. Having had advance warning of the terrorists' intentions, it would certainly have been possible for the authorities to have mounted an arrest operation. The security services and the Spanish authorities had photographs of the three suspects, knew their names, as well as their aliases, and would have known what passports to look for.

The Court further noted that the authorities had made a number of key assessments, in particular, that the terrorists would not use a blocking car; that the bomb would be detonated by a radio-controlled device; that the detonation could be effected by the pressing of a button; that it was likely that the suspects would detonate the bomb if challenged; that they would be armed and would be likely to use their arms if confronted. In the event, all of these crucial assumptions, apart from the terrorists' intention to carry out an attack, turned out to be erroneous. In the Court's view, insufficient allowances appear to have been made for other assumptions. For example, since the bombing was not expected until 8 March, when the changing of the guard ceremony was to take place, there was an equal possibility that the three terrorists were on a reconnaissance mission. In addition, it might have been thought unlikely that the suspects would have been prepared to explode the bomb, thereby killing many civilians, as two of the suspects strolled towards the border area since this would have increased the risk of detention and capture. It might also have been thought improbable at that point that they would have set up the transmitter to enable them to detonate the supposed bomb immediately if confronted. Moreover, even if allowances are made for the technological skills of the IRA, the description of the detonation device as a 'button job' without the qualifications subsequently described by the experts at the Inquest, oversimplifies the true nature of these devices. It was further disquieting that the assessment made that there was a 'suspect car bomb' was conveyed to the soldiers as a definite identification that there was such a bomb. It considered that in the absence of sufficient allowances being made for alternative possibilities, the definite reporting of the existence of a car bomb which could be detonated by pressing a button, a series of working hypotheses were conveyed to soldiers A, B, C and D as certainties, thereby making the use of force almost unavoidable. In the Court's view, the above failure to make provision for a margin of error had to be considered in combination with the training of the soldiers to continue shooting once they opened fire until the suspect was dead. As noted by the coroner in the inquest proceedings, all four soldiers shot to kill the suspects. Against this background, the authorities were bound by their obligation to respect the right to life of the suspects to exercise the greatest of care in evaluating the information at their disposal before transmitting it to soldiers whose use of firearms automatically involved shooting to kill. The reflex action of the soldiers in this vital respect lacked the degree of caution in the use of firearms to be expected from law-enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects. This failure by the authorities suggested a lack of appropriate care in the control and organisation of the arrest operation. In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court was not persuaded that the killing of the three terrorists constituted a use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2-2-a ECHR. There thus had been a breach of Article 2 ECHR.

With respect to the application of Article 50 ECHR regarding the award of just satisfaction the Court did not consider it appropriate to make an award under this head having regard to fact that the three terrorist suspects who were killed had intended to plant a bomb in Gibraltar. It therefore dismissed the applicants' claim for damages. The Court finally awarded a specified amount in respect of costs and expenses relating to the Strasbourg proceedings.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)