CASE OF McCANN AND OTHERS v. THE UNITED KINGDOM

N° 18984/91

27/09/1995

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 (art. 2) OF THE CONVENTION

145. The applicants alleged that the killing of Mr McCann,

Ms Farrell and Mr Savage by members of the security forces

constituted a violation of Article 2 (art. 2) of the Convention

which reads:

"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 (art. 2) 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."

A. Interpretation of Article 2 (art. 2)

1. General approach

146. The Court's approach to the interpretation of Article 2

(art. 2) must be guided by the fact that the object and purpose

of the Convention as an instrument for the protection of

individual human beings requires that its provisions be

interpreted and applied so as to make its safeguards practical

and effective (see, inter alia, the Soering v. the United Kingdom

judgment of 7 July 1989, Series A no. 161, p. 34, para. 87, and

the Loizidou v. Turkey (Preliminary Objections) judgment of

23 March 1995, Series A no. 310, p. 27, para. 72).

147. It must also be borne in mind that, as a provision (art. 2)

which not only safeguards the right to life but sets out the

circumstances when the deprivation of life may be justified,

Article 2 (art. 2) ranks as one of the most fundamental

provisions in the Convention - indeed one which, in peacetime,

admits of no derogation under Article 15 (art. 15). Together

with Article 3 (art. 15+3) of the Convention, it also enshrines

one of the basic values of the democratic societies making up the

Council of Europe (see the above-mentioned Soering judgment,

p. 34, para. 88). As such, its provisions must be strictly

construed.

148. The Court considers that the exceptions delineated in

paragraph 2 (art. 2-2) indicate that this provision (art. 2-2)

extends to, but is not concerned exclusively with, intentional

killing. As the Commission has pointed out, the text of

Article 2 (art. 2), read as a whole, demonstrates that

paragraph 2 (art. 2-2) 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, however, must be no more than

"absolutely necessary" for the achievement of one of the purposes

set out in sub-paragraphs (a), (b) or (c) (art. 2-2-a,

art. 2-2-b, art. 2-2-c) (see application no. 10044/82, Stewart

v. the United Kingdom, 10 July 1984, Decisions and Reports 39,

pp. 169-71).

149. In this respect the use of the term "absolutely necessary"

in Article 2 para. 2 (art. 2-2) indicates that a stricter and

more compelling test of necessity must be employed from that

normally applicable when determining whether State action is

"necessary in a democratic society" under paragraph 2 of

Articles 8 to 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2) of

the Convention. In particular, the force used must be strictly

proportionate to the achievement of the aims set out in

sub-paragraphs 2 (a), (b) and (c) of Article 2 (art. 2-2-a-b-c).

150. In keeping with the importance of this provision (art. 2)

in a democratic society, the Court must, in making its

assessment, subject deprivations of life to the most careful

scrutiny, particularly where deliberate lethal force is used,

taking into consideration not only the actions of the agents of

the State who actually administer the force but also all the

surrounding circumstances including such matters as the planning

and control of the actions under examination.

The obligation to protect life in Article 2 para. 1

Compatibility of national law and practice with

Article 2 (art. 2) standards

151. The applicants submitted under this head that Article 2

para. 1 (art. 2-1) of the Convention imposed a positive duty on

States to "protect" life. In particular, the national law must

strictly control and limit the circumstances in which a person

may be deprived of his life by agents of the State. The State

must also give appropriate training, instructions and briefing

to its soldiers and other agents who may use force and exercise

strict control over any operations which may involve the use of

lethal force.

In their view, the relevant domestic law was vague and

general and did not encompass the Article 2 (art. 2) standard of

absolute necessity. This in itself constituted a violation of

Article 2 para. 1 (art. 2-1). There was also a violation of this

provision (art. 2-1) in that the law did not require that the

agents of the State be trained in accordance with the strict

standards of Article 2 para. 1 (art. 2-1).

152. For the Commission, with whom the Government agreed,

Article 2 (art. 2) was not to be interpreted as requiring an

identical formulation in domestic law. Its requirements were

satisfied if the substance of the Convention right was protected

by domestic law.

153. The Court recalls that the Convention does not oblige

Contracting Parties to incorporate its provisions into national

law (see, inter alia, the James and Others v. the United Kingdom

judgment of 21 February 1986, Series A no. 98, p. 47, para. 84,

and The Holy Monasteries v. Greece judgment of 9 December 1994,

Series A no. 301-A, p. 39, para. 90). Furthermore, it is not the

role of the Convention institutions to examine in abstracto the

compatibility of national legislative or constitutional

provisions with the requirements of the Convention (see, for

example, the Klass and Others v. Germany judgment of

6 September 1978, Series A no. 28, p. 18, para. 33).

154. Bearing the above in mind, it is noted that Article 2 of the

Gibraltar Constitution (see paragraph 133 above) is similar to

Article 2 (art. 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" as

opposed to "absolutely necessary" in paragraph 2 of Article 2

(art. 2-2). While the Convention standard appears on its face

to be stricter than the relevant national standard, it has been

submitted by the Government that, having regard to the manner in

which the standard is interpreted and applied by the national

courts (see paragraphs 134-35 above), there is no significant

difference in substance between the two concepts.

155. In the Court's view, whatever the validity of this

submission, the difference between the two standards is not

sufficiently great that a violation of Article 2 para. 1

(art. 2-1) could be found on this ground alone.

156. As regards the applicants' arguments concerning the training

and instruction of the agents of the State and the need for

operational control, the Court considers that these are matters

which, in the context of the present case, raise issues under

Article 2 para. 2 (art. 2-2) concerning the proportionality of

the State's response to the perceived threat of a terrorist

attack. It suffices to note in this respect that the rules of

engagement issued to the soldiers and the police in the present

case provide a series of rules governing the use of force which

carefully reflect the national standard as well as the substance

of the Convention standard (see paragraphs 16, 18 and 136-37

above).

. . .

192. In carrying out its examination under Article 2 (art. 2) of

the Convention, the Court must bear in mind that the information

that the United Kingdom authorities received that there would be

a terrorist attack in Gibraltar 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 in Gibraltar

including their own military personnel and, on the other, to have

minimum resort to the use of lethal force against those suspected

of posing this threat in the light of the obligations flowing

from both domestic and international law.

193. Several other factors must also 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 co-ordination 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.

194. Against this background, in determining whether the force

used was compatible with Article 2 (art. 2), the Court must

carefully scrutinise, as noted above, not only whether the force

used by the soldiers was strictly proportionate to the aim of

protecting persons against unlawful violence but also whether the

anti-terrorist operation was planned and controlled by the

authorities so as to minimise, to the greatest extent possible,

recourse to lethal force. The Court will consider each of these

points in turn.

(2) Actions of the soldiers

195. It is recalled that the soldiers who carried out the

shooting (A, B, C and D) were informed by their superiors, in

essence, that there was a car bomb in place which could be

detonated by any of the three suspects by means of a

radio-control 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 (see paragraphs 23, 24-27, and 28-31 above).

196. As regards the shooting of Mr McCann and Ms Farrell, the

Court recalls the Commission's finding that they were shot at

close range after making what appeared to Soldiers A and B to be threatening movements with their hands as if they were going to detonate the bomb (see paragraph 132 above). The evidence indicated that they were shot as they fell to the ground but not as they lay on the ground (see paragraphs 59-67 above). Four witnesses recalled hearing a warning shout (see paragraph 75 above). Officer P corroborated the soldiers' evidence as to the hand movements (see paragraph 76 above). Officer Q and Police Constable Parody also confirmed that Ms Farrell had made a sudden, suspicious move towards her handbag (ibid.).

197. As regards the shooting of Mr Savage, the evidence revealed that there was only a matter of seconds between the shooting at the Shell garage (McCann and Farrell) and the shooting at Landport tunnel (Savage). The Commission found that it was

unlikely that Soldiers C and D witnessed the first shooting

before pursuing Mr Savage who had turned around after being

alerted by either the police siren or the shooting (see

paragraph 132 above).

Soldier C opened fire because Mr Savage moved his right arm

to the area of his jacket pocket, thereby giving rise to the fear

that he was about to detonate the bomb. In addition, Soldier C

had seen something bulky in his pocket which he believed to be

a detonating transmitter. Soldier D also opened fire believing

that the suspect was trying to detonate the supposed bomb. The

soldiers' version of events was corroborated in some respects by

Witnesses H and J, who saw Mr Savage spin round to face the

soldiers in apparent response to the police siren or the first

shooting (see paragraphs 83 and 85 above).

The Commission found that Mr Savage was shot at close range

until he hit the ground and probably in the instant as or after

he had hit the ground (see paragraph 132 above). This conclusion

was supported by the pathologists' evidence at the inquest (see

paragraph 110 above).

198. It was subsequently discovered that the suspects were

unarmed, that they did not have a detonator device on their

persons and that there was no bomb in the car (see paragraphs 93

and 96 above).

199. All four soldiers admitted that they shot to kill. They

considered that it was necessary to continue to fire at the

suspects until they were rendered physically incapable of

detonating a device (see paragraphs 61, 63, 80 and 120 above).

According to the pathologists' evidence Ms Farrell was hit by

eight bullets, Mr McCann by five and Mr Savage by sixteen (see

paragraphs 108-10 above).

200. The Court accepts that the soldiers honestly believed, in

the light of the information that they had been given, as set out

above, that it was necessary to shoot the suspects in order to

prevent them from detonating a bomb and causing serious loss of

life (see paragraph 195 above). The actions which they took, in

obedience to superior orders, were thus perceived by them as

absolutely necessary in order to safeguard innocent lives.

It considers that the use of force by agents of the State

in pursuit of one of the aims delineated in paragraph 2 of

Article 2 (art. 2-2) of the Convention may be justified under

this provision (art. 2-2) 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.

It follows that, having regard to the dilemma confronting

the authorities in the circumstances of the case, the actions of

the soldiers do not, in themselves, give rise to a violation of

this provision (art. 2-2).

201. The question arises, however, whether the anti-terrorist

operation as a whole was controlled and organised in a manner

which respected the requirements of Article 2 (art. 2) and

whether the information and instructions given to the soldiers

which, in effect, rendered inevitable the use of lethal force,

took adequately into consideration the right to life of the three

suspects.

(3) Control and organisation of the operation

202. The Court first observes that, as appears from the

operational order of the Commissioner, it had been the intention

of the authorities to arrest the suspects at an appropriate

stage. Indeed, evidence was 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 in Gibraltar

to detain the suspects after their arrest (see paragraphs 18

and 55 above).

203. It may be questioned why the three suspects were not

arrested at the border immediately on their arrival in Gibraltar

and why, as emerged from the evidence given by Inspector Ullger,

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. Although surprised at the early arrival of

the three suspects, they had a surveillance team at the border

and an arrest group nearby (see paragraph 34 above). In

addition, 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

(see paragraph 33 above).

204. On this issue, the Government submitted that at that moment

there might not have been sufficient evidence to warrant the

detention and trial of the suspects. Moreover, to release them,

having alerted them to the authorities' state of awareness but

leaving them or others free to try again, would obviously

increase the risks. Nor could the authorities be sure that those

three were the only terrorists they had to deal with or of the

manner in which it was proposed to carry out the bombing.

205. The Court confines itself to observing in this respect that

the danger to the population of Gibraltar - which is at the heart

of the Government's submissions in this case - in not preventing

their entry must be considered to outweigh the possible

consequences of having insufficient evidence to warrant their

detention and trial. In its view, either the authorities knew

that there was no bomb in the car - which the Court has already

discounted (see paragraph 181 above) - or there was a serious

miscalculation by those responsible for controlling the

operation. As a result, the scene was set in which the fatal

shooting, given the intelligence assessments which had been made,

was a foreseeable possibility if not a likelihood.

The decision not to stop the three terrorists from entering

Gibraltar is thus a relevant factor to take into account under

this head.

206. The Court notes that at the briefing on 5 March attended by

Soldiers A, B, C, and D it was considered likely that the attack

would be by way of a large car bomb. A number of key assessments

were made. In particular, it was thought that the terrorists

would not use a blocking car; that the bomb would be detonated

by a radio-control 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 (see

paragraphs 23-31 above).

207. In the event, all of these crucial assumptions, apart from

the terrorists' intentions to carry out an attack, turned out to

be erroneous. Nevertheless, as has been demonstrated by the

Government, on the basis of their experience in dealing with the

IRA, they were all possible hypotheses in a situation where the

true facts were unknown and where the authorities operated on the

basis of limited intelligence information.

208. In fact, 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 equally the possibility that the

three terrorists were on a reconnaissance mission. While this

was a factor which was briefly considered, it does not appear to

have been regarded as a serious possibility (see paragraph 45

above).

In addition, at the briefings or after the suspects had been

spotted, it might have been thought unlikely that they would have

been prepared to explode the bomb, thereby killing many

civilians, as Mr McCann and Ms Farrell strolled towards the

border area since this would have increased the risk of detection

and capture (see paragraph 57 above). It might also have been

thought improbable that at that point they would have set up the

transmitter in anticipation to enable them to detonate the

supposed bomb immediately if confronted (see paragraph 115

above).

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 (see paragraphs 115 and 131 above),

of which the competent authorities must have been aware,

over-simplifies the true nature of these devices.

209. It is further disquieting in this context that the

assessment made by Soldier G, after a cursory external

examination of the car, that there was a "suspect car bomb" was

conveyed to the soldiers, according to their own testimony, as

a definite identification that there was such a bomb (see

paragraphs 48, and 51-52 above). It is recalled that while

Soldier G had experience in car bombs, it transpired that he was

not an expert in radio communications or explosives; and that his

assessment that there was a suspect car bomb, based on his

observation that the car aerial was out of place, was more in the

nature of a report that a bomb could not be ruled out (see

paragraph 53 above).

210. In the absence of sufficient allowances being made for

alternative possibilities, and the definite reporting of the

existence of a car bomb which, according to the assessments that

had been made, could be detonated at the press of a button, a

series of working hypotheses were conveyed to Soldiers A, B, C

and D as certainties, thereby making the use of lethal force

almost unavoidable.

211. However, the failure to make provision for a margin of error

must also 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 his summing-up to

the jury at the inquest, all four soldiers shot to kill the

suspects (see paragraphs 61, 63, 80 and 120 above). Soldier E

testified that it had been discussed with the soldiers that there

was an increased chance that they would have to shoot to kill

since there would be less time where there was a "button" device

(see paragraph 26 above). 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.

212. Although detailed investigation at the inquest into the

training received by the soldiers was prevented by the public

interest certificates which had been issued (see paragraph 104,

at point 1. (iii) above), it is not clear whether they had been

trained or instructed to assess whether the use of firearms to

wound their targets may have been warranted by the specific

circumstances that confronted them at the moment of arrest.

Their reflex action in this vital respect lacks 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, and stands in marked contrast

to the standard of care reflected in the instructions in the use

of firearms by the police which had been drawn to their attention

and which emphasised the legal responsibilities of the individual

officer in the light of conditions prevailing at the moment of

engagement (see paragraphs 136 and 137 above).

This failure by the authorities also suggests a lack of

appropriate care in the control and organisation of the arrest

operation.

213. 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 is not persuaded that

the killing of the three terrorists constituted the use of force

which was no more than absolutely necessary in defence of persons

from unlawful violence within the meaning of Article 2

para. 2 (a) (art. 2-2-a) of the Convention.

214. Accordingly, the Court finds that there has been a breach

of Article 2 (art. 2) of the Convention.