ECtHR - McCann and others v United Kingdom, Application No. 18984/91, 27 September 1995

The  Court firstly emphasised that the Convention ought to be used as an instrument for protecting individuals and that each provision should be applied and interpreted accurately in order to properly safeguard these individuals. The purpose is for the implementation of the convention to be practical and effective and for the provisions to be precisely and strictly construed. Thus, it was established that the Gibraltar inquest was a sufficient procedural safeguard due to the extensive scrutiny and independent nature of the inquest itself.

The first issue raised by the applicant is the discrepancy between justifying a deprivation of life according to the wording of the Gibraltar Constitution as ‘reasonably justified’ compared to the wording of the Convention as ‘absolutely necessary’. The court highlights that parties signed up to the Convention are not obliged to incorporate its provisions into their national law and the compatibility of national laws with the convention is not an issue for the court. It concluded that there is not a sufficient discrepancy between the two standards thus there is no violation of Article 2 (1).

Secondly, regarding the allegation that the killings were premeditated actions of the SAS soldiers or the product of a tacit agreement between those involved in the operation, the Court held this to be unsubstantiated claims. The evidence presented by the applicants to support this allegation was circumstantial and did not provide concrete proof that the killings were of a planned nature. On examination of the material presented to the Court such as: the use of trained SAS soldiers as an intention to kill unlawfully and the possibility of using other safer methods of preventing the bomb detonation such as removing the aerial to nullify the radio detonator, the Court ruled that this was unconvincing as premeditation.

Thirdly the Court considers the two principle actions which may have caused a deprivation of liberty for McCann, Savage and Farrell, either the actions of the SAS soldiers or the enactment and organisation of the operation by the authorities. Regarding the actions of the soldiers the Court determined that there had not been a violation of Article 2 of the Convention because it was not disproportionate to the aim of protecting civilians from unlawful violence. Additionally, the SAS soldiers were acting in obedience with superior orders given as a means of safeguarding life and were also acting in reaction to a genuine belief that it was necessary to shoot the suspects in light of the alternatively grave consequences. Regardless of the belief being mistaken, at the time the action of killing was committed, the belief was genuine and this suffices in justifying the use of force.

Conversely, the Court finds the authorities in breach of Article 2 in their control and planning of the operation. They declare that the authorities had failed in their duty to safeguard due to the lack of arrest at the Gibraltar border and a lack of allowance for the possibility of incorrect intelligence assessments regarding the presence of a bomb and detonation device. Thus, it is clear that the authorities did not do enough to minimise the use and necessity of lethal force and there was consequently a breach of Article 2 of the Convention.