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

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Country of Applicant: 
United Kingdom
Date of Decision: 
27-09-1995
Citation: 
McCann and others v UK [1995] ECtHR Application No.18984/91
Court Name: 
European Court of Human Rights, Grand Chamber
Headnote: 

The killing of 3 IRA terrorist by SAS soldiers in order to prevent a suspected bomb attack is alleged as a deprivation of the right to life under Article 2 of the Convention. The ECtHR rules that the UK authorities were in breach of Article 2 in the control and organisation of the operation against the suspects.

Facts: 

This case was brought before the European court of Human rights by representatives of the estates of 3 deceased Irish Republican Army terrorists; Daniel McCann, Sean Savage and Mairead Farrell. UK authorities received intelligence of an intended car bomb attack at the changing of the guard in Gibraltar which could be instigated by a push-button device. On this intelligence, the Ministry of Defence briefed Special Air Service Soldiers on the mode of detonation, the possibility that the terrorists would detonate if confronted and they were given orders to shoot to kill due to the severity and speed with which the bomb could be detonated.

The suspects were sighted in Spain on 4 March 1988 and two days later Savage was spotted crossing the Spanish border. Once the car had been parked the suspects exited and were reported to have spent a considerable time staring across at the car. They then moved away from the assembly area which enabled a SAS soldier to inspect the car and confirm the presence of a bomb. The identities of the suspects were subsequently confirmed as well as the car bomb and McCann and Farrell were followed by two soldiers whilst Savage was followed by another. As a SAS soldier approached McCann to arrest him, McCann, reportedly reached for something the soldier thought to be the detonation device. McCann was shot and killed immediately. Farrell also appeared to reach for something in her handbag, which was also thought to be the detonation device; she was also shot and killed immediately. Savage who was also being pursued for arrest, on spotting the SAS pursuer, reportedly reached for something on his right-hand side, which the Soldier thought to be the detonator. He opened fire and Savage was shot and killed.

Upon later inspection, it was confirmed than neither of the suspects had been armed, nor had they any detonation devices and there was no bomb in the car. Although it was later discovered there was an explosive device in a car found in Spain which was registered to Farrell.

Following their deaths and an inquest which determined the killings to be lawful under Article 2 of the Gibraltar Convention, the families of the McCann, Savage and Farrell made a claim before the ECtHR that the actions of the UK government were a violation of Article 2 (right to life) of the ECHR. Conversely the UK argued that the killings were justified as the force was necessary in defence of civilians from unlawful violence. 

Decision & Reasoning: 

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. 

Outcome: 

The Court found a violation of Article 2 of the Convention by the United Kingdom.

The Court dismissed all claims for damages, costs, expenses and just satisfaction aside from the £38,700 incurred from the Strasbourg proceedings, for which the UK was liable.

Subsequent Proceedings : 

This execution of this judgment was closed by the Committee of Ministers on the 26 September 2012.

Observations/Comments: 

This case summary was written by Tazkia Rahman, GDL student at BPP University. 

Case Law Cited: 

UK - Lynch v. Ministry of Defence [1983] NI 216

UK - R v. Gladstone Williams [1983] 78 Criminal Appeal Reports 276

UK - R v. Thain [1985] NI 457

UK - Attorney General for Northern Ireland’s Reference [1976] NI 169

ECtHR - Stewart v. the United Kingdom, Application no. 10044/82, 10 July 1984

ECtHR - James and Others v. the United Kingdom, App No 8793/79, 21 February 1986

ECtHR - The Holy Monasteries v. Greece (10/1993/405/483–484), 9 December 1994

ECtHR - Klass and Others v. Germany, Appl. No. 5029/71, 6 September 1978

ECtHR - Young, James and Webster v. the United Kingdom, Nos. 7601/76 7806/77, 18 October 1982

ECtHR- Ireland v. United Kingdom, Application no. 5310/71

ECtHR - Klaas v Germany, Application No. 15473/89

ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)
Authentic Language: 
English
State Party: 
United Kingdom
National / Other Legislative Provisions: 
UK - Crown Proceedings Act 1947 Section 40 (3)
UK - Crown Proceedings (Northern Ireland) Order 1981 Section 40 (2)
UK - Gibraltar Constitution Article 2