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.