McCANN, FARRELL AND SAVAGE v. the UNITED KINGDOM



                  EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 18984/91

            Margaret McCANN, Daniel FARRELL and John SAVAGE

                                against

                          the United Kingdom

REPORT OF THE COMMISSION

                       (adopted on 4 March 1994)

                           TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 19-171) . . . . . . . . . . . . . . . . . . . . . . . 3

      A.   Introduction

           (paras. 19-20) . . . . . . . . . . . . . . . . . . . . . 3

      B.   Particular circumstances of the case

           (paras. 25-159). . . . . . . . . . . . . . . . . . . . . 3

      C.   Evidence before the Commission

           (paras. 160-168) . . . . . . . . . . . . . . . . . . . .28

      D.   Relevant domestic law and practice

           (paras. 169-171) . . . . . . . . . . . . . . . . . . . .30

III.  OPINION OF THE COMMISSION

      (paras. 172-251). . . . . . . . . . . . . . . . . . . . . . .32

      A.   Complaints declared admissible

           (para. 172). . . . . . . . . . . . . . . . . . . . . . .32

      B.   Point at issue

           (para. 173). . . . . . . . . . . . . . . . . . . . . . .32

      C.   Evaluation of the evidence

           (paras. 174-179) . . . . . . . . . . . . . . . . . . . .32

      D.   Article 2 of the Convention

           (para. 180). . . . . . . . . . . . . . . . . . . . . . .33

      E.   General Considerations

           (paras. 181-184) . . . . . . . . . . . . . . . . . . . .33

      F.   The Present Case

           (paras. 185-186) . . . . . . . . . . . . . . . . . . . .34

      G.   "Everyone's right to life shall be protected by law"

           (paras. 187-201) . . . . . . . . . . . . . . . . . . . .34

      H.   Requirements of Article 2 para. 2

           (paras. 202-250) . . . . . . . . . . . . . . . . . . . .37

           i.    The conspiracy theory

                 (paras. 208-216) . . . . . . . . . . . . . . . . .38

           ii.   Conduct of the operation

                 (paras. 217-250) . . . . . . . . . . . . . . . . .40

                 a.   The actions of the soldiers

                      (paras. 218-233). . . . . . . . . . . . . . .40

                 b.   Operational responsibility

                      (paras. 234-250). . . . . . . . . . . . . . .43

      CONCLUSION

      (para. 251) . . . . . . . . . . . . . . . . . . . . . . . . .46

      DISSENTING OPINION OF MR. S. TRECHSEL JOINED BY

      MR. F. ERMACORA . . . . . . . . . . . . . . . . . . . . . . .47

      DISSENTING OPINION OF MRS. J. LIDDY JOINED BY

      MM. G. B. REFFI AND M. A. NOWICKI . . . . . . . . . . . . . .48

      DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . . . .52

APPENDIX I       HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .55

APPENDIX II      DECISION ON ADMISSIBILITY. . . . . . . . . . . . .56

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicants are Margaret McCann, Daniel Farrell and

John Savage who are Irish and United Kingdom citizens born in 1945,

1914 and 1952 respectively and resident in Belfast. They are

represented by Mr. Douwe Korff, Counsel, and Mr. P.J. McGrory & Co.,

Solicitors practising in Belfast.

3.    The application is directed against the United Kingdom.  The

Government are represented by their Agent, Mrs. Audrey Glover, of the

Foreign and Commonwealth Office.

4.    The case concerns the applicants' complaint that the killings of

Daniel McCann, Mairead Farrell and Sean Savage (aged respectively 30,

31 and 24) by  members of the SAS (Special Air Service) in Gibraltar

on 6 March 1988 were in violation of Article 2 of the Convention.

B.    The proceedings

5.    The application was introduced on 14 August 1991 and registered

on 24 October 1991.

6.    On 20 February 1992, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the application.

7.    The Government submitted their written observations on

11 August 1992.  The applicants submitted their written observations

in reply on 13 January 1993.

8.    The Commission granted the applicants legal aid on

23 October 1992.

9.    On 2 April 1993, the Commission decided to invite the parties to

an oral hearing on the admissibility and merits.

10.   At the hearing which was held on 3 September 1993, the Government

were represented by  Mrs. Audrey Glover, Agent, Mr. Stephen Richards,

Counsel, Mr. James Eadie, Counsel, Mr. Nicholas Lavender, Counsel, and

Mr. David Pickup, Mr. Michael Venables and Mr. David Seymour as

advisers.  The applicants were represented by Mr. Douwe Korff,

Counsel, and Mr. P.J.B. McGrory, Solicitor.

11.   On 3 September 1993, the Commission declared the application

admissible. The parties were then invited to submit any additional

observations on the merits of the application.

12.   On 12 November 1993, the Government submitted further

observations on the merits. On 16 and 17 November 1993, the applicants

submitted additional observations.

13.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case.  Consultations with the parties took place between

10 September 1993 and 12 November 1993. In the light of the parties'

reactions, the Commission now finds that there is no basis on which a

friendly settlement can be effected.

C.    The present Report

14.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 F. ERMACORA

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

           Mrs.  G.H. THUNE

           Sir   Basil HALL

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 M.P. PELLONPÄÄ

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

15.   The text of the Report was adopted by the Commission on

4  March 1994 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

16.   The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

      1)  to establish the facts, and

      2)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

17.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

18.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Introduction

19.   The events in this case have been surrounded with considerable

controversy. They are however to a large extent not in dispute between

the parties to this application. With regard to the circumstances

surrounding the deaths of the three terrorist suspects, the Commission

has established the facts from the evidence at its disposal, including

the observations, documents and exhibits submitted by the parties and

the transcript of the Inquest into the deaths held on Gibraltar.

20.   The evidence given in the Inquest is summarised in the section

below. Insofar as there is need to resolve conflicts of evidence in the

determination of the issues under the Convention, the Commission's

findings appear in its Opinion (see paras. 172-251).

B.    Particular circumstances of the case

Background to the events on Gibraltar

21.   Prior to 4 March 1988, and probably from at least the beginning

of the year, the United Kingdom, Spanish and Gibraltar authorities were

aware that the Provisional IRA (PIRA) were planning a terrorist attack

on Gibraltar. From the intelligence received and from observations made

by the Gibraltar police, it became apparent that the target was to be

the assembly area south of Ince's Hall where the Royal Anglian Regiment

usually assembled to carry out the changing of the guard every Tuesday

at 11.00.

22.   Prior to 4 March 1988,  an advisory group was formed to advise

and assist Mr. Joseph Canepa, the Gibraltar Commissioner of Police

("the Commissioner"). It consisted of Soldier F (senior military

adviser and officer in the Special Air Service or "SAS"), Soldier E

(SAS attack commander), Soldier G (bomb disposal or EOD adviser),

Mr. Colombo (Acting Deputy Commissioner of Police), Detective Chief

Inspector Ullger, attached to Special Branch and Security Service

officers. The Commissioner issued instructions for an operational order

to be prepared to deal with the situation.

23.   Soldier F and his group, including Soldier E and a number of

other SAS soldiers, had arrived in Gibraltar prior to 4 March 1988.

Preliminary briefings had been conducted by the Ministry of Defence in

London. According to the Rules of Engagement issued to Soldier F by the

Ministry of Defence, the purpose of the military forces being in

Gibraltar was to assist the Gibraltar police in arresting the PIRA ASU

(active service unit) should the police request such military

intervention. The Rules also instructed F to operate as directed by the

Commissioner.

24.   The Rules also specified the circumstances in which the use of

force by the soldiers would be permissible:

      "Use of force

      4. You and your men will not use force unless requested to do so

      by the senior police officer(s) designated by the Gibraltar

      Police Commissioner; or unless it is necessary to do so in order

      to protect life. You and your men are not then to use more force

      than is necessary in order to protect life...

      Opening fire

      5. You and your men may only open fire against a person if you

      or they have reasonable grounds for believing that he/she is

      currently committing, or is about to commit, an action which is

      likely to endanger your or their lives, or the life of any other

      person, and if there is no other way to prevent this.

      Firing without warning

      6. You and your men may fire without warning if the giving of a

      warning or any delay in firing could lead to death or injury to

      you or them or any other person, or if the giving of a warning

      is clearly impracticable.

      Warning before firing

      7. If the circumstances in paragraph 6 do not apply, a warning

      is necessary before firing. The warning is to be as clear as

      possible and is to include a direction to surrender and a clear

      warning that fire will be opened if the direction is not obeyed."

25.   The Operational Order of the Commissioner, which was drawn up on

5 March 1988, stated that it was suspected that a terrorist attack  was

planned in Gibraltar and that the target was highly probably the band

and guard of the First Battalion of the Royal Anglian Regiment during

a ceremonial changing of the guard. It stated that there were

"indications that the method to be used is by means of explosives,

probably using a car bomb". The intention of the operation was then

stated to be

      "a. To protect life

       b. To foil the attempt

       c. To arrest the offenders

       d. The securing and safe custody of the prisoners"

26.   The methods to be employed were listed as police surveillance,

having sufficient personnel suitably equipped to deal with any

contingency, to arrest the offenders using the minimum force and by

disarming the offenders and the gathering of subsequent evidence for

a court trial. Annexed to the order were, inter alia, lists of

attribution of police personnel, firearms rules of engagement (see

Relevant Domestic Law and Practice) and a guide to firearms use by

police.

27.   A plan for evacuation of the expected area of attack was drawn

up on 5 March 1988 by Chief Inspector Lopez. It included a plan to

evacuate and cordon off the area to a radius of 200 metres, identified

the approach roads to be closed, detailed the necessary traffic

diversions and listed the personnel to implement the plan. The plan was

not however distributed.

Conduct of the operation in Gibraltar

28.   The operation in Gibraltar to counter the expected terrorist

attack was run from a joint operations room in or about the centre of

Gibraltar. In the operations room there were three distinct groups -

the army or military group (comprising the SAS and bomb disposal

personnel), a police group and the surveillance or security service

group. Each had its own means of communication with personnel on the

ground operated from a separate control station. The two principal

means of communication in use were however the two radio-communication

networks known as the surveillance net and the tactical or military

net. There was a bomb disposal net which was not busy and while the

police had a net, it was not considered secure and a telephone appears

to have been used for necessary communications with the Central Police

Station.

First sighting of the suspects in Spain on 4 March 1988

29.   On 4 March 1988, there was a reported sighting of the ASU in

Malaga in Spain.

Operational Briefing on 5 March 1988

30.   At midnight  on 5 March 1988, the Commissioner held a briefing

which was attended by officers from the Security Service (including

from the surveillance team Witnesses H, I, J, K, L, M and N), military

personnel (including Soldiers A, B, C, D, E, F and G) and members of

the Gibraltar police (Officers P, Q and R and Detective Chief Inspector

Ullger, Head of Special Branch, and Detective Constable Viagas).

31.   The Commissioner conducted the police aspect of the briefing, the

members of the Security Service briefed on the intelligence aspects of

the operation, the head of the surveillance team covered the

surveillance operation and Soldier E explained the role of the military

if they were called on for assistance. It then appears that the

briefing split in smaller groups, E continuing to brief the soldiers

under his command but in the same location.

32.   The Commissioner explained the rules of engagement and firearms

procedures. He also expressed the importance to the police of gathering

evidence for a subsequent trial of the terrorists - a particular

concern mentioned was the fact that the members of the Security Service

had stated that they did not normally give evidence in court and most

would leave Gibraltar at the end of the operation.

33.   The briefing by the representative of the Security Services

included the following assessments:

a.    PIRA intended to attack the changing of the guard ceremony on the

morning of Tuesday 8 March 1988;

b.    An ASU of 3 would be sent to carry out the attack, consisting of

Daniel McCann, Sean Savage and  a third member, later positively

identified, as Mairead Farrell. McCann had been previously convicted

and sentenced to 2 years' imprisonment for possession of explosives.

Farrell had previously been convicted and sentenced to 14 years'

imprisonment for causing explosions. She was known during her time in

prison to have been the acknowledged leader of the IRA wing of

prisoners. Savage was described as an expert bomb-maker. Photographs

were shown of the three suspects.

c.    The  three individuals were believed to be dangerous terrorists

who would almost certainly be armed and who, if confronted by security

forces, would be likely to use their weapons.

d.    The attack would be by way of a large car bomb.

e.    Use of a blocking car

34.   Consideration was given in the intelligence assessment as to

whether a blocking car would be used, ie. that the terrorists would

drive a car into Gibraltar before 8 March to ensure that when the car

carrying the bomb arrived a parking space would be available. According

to O (the senior Security Services Officer who did not attend the

briefing but had briefed the representative who presented the

assessment on his behalf) this possibility was discounted as less

likely since it would mean the terrorists having to make 2 trips; it

would not be necessary since parking spaces would be available on the

night before or early on Tuesday morning itself; there was the

possibility that the blocking car would itself get blocked by careless

parking and also it would need two drivers which might render them more

conspicuous. Use of a blocking car, on this view, seemed over-

complicated and risky and so the assessment was that it was more likely

that the ASU would drive in at the last moment Monday night or on

Tuesday.

35.   Soldier F also recalled that the intelligence assessment was that

terrorists would not employ a blocking car, but would bring the bomb

in early. He however thought it would probably be at some time over the

weekend or at the latest on Monday 7 March. Soldier E also thought that

a blocking car was discounted and that the car which came in would

contain the bomb.

36.   O's assumption that there would be no problem in respect of the

terrorists finding a parking place was contradicted by Chief Inspector

Lopez. He had not been at the briefing but at the Inquest stated that

while the operation was geared for Monday or Tuesday, he himself would

not have brought in a bomb on Tuesday since it would be busy and

difficult to find a parking place.

f.    Mode of detonation of bomb

37.   Various methods of detonation of the bomb were mentioned : by

timing device, by RCIED (radio-controlled improvised explosive device)

and by command wire. This last option which required placing a bomb

connected to a detonator by a wire was discounted as impractical in the

circumstances. The use of a timer was, according to O,  considered

highly unlikely in light of the recent IRA explosion of a bomb by timer

device at Enniskillen which had resulted in a high number of civilian

casualties. Use of a remote control device was considered to be far

more likely since it was safer from the point of view of the terrorist

who could get away from the bomb before it exploded and was more

controllable than a timer which once activated was virtually impossible

to stop.

38.   The recollection of the others present at the briefing differs

on this point.

39.   The police witnesses remembered both a timer and remote control

device being discussed. The Commissioner's recollection of the briefing

was that detonation would be either by timer or remote control and was

prepared for either. Deputy Commissioner Colombo, briefed by the

Commissioner, was also expecting either type of device. Officer R and

Chief Inspector Ullger recalled specific mention of the remote device

as being more likely since it would be a more reliable and effective

method. Officer P was the only officer who did not recall a timer being

mentioned. Chief Inspector Ullger also recalled being shown photographs

of positions on the Rock which could be suitable for a line of sight

detonation.

40.   The surveillance officers at the briefing thought an emphasis was

put on the use of a remote control device, with the timer being

secondary. M stated that the remote control device would probably be

used but that it was not definite.

41.   The military witnesses in contrast appear to have been convinced

that it would certainly be a remote control device. Soldier F  made no

mention of a timer but stated that they were briefed that it was to be

a "button job" ie. radio controlled so that the bomb could be detonated

at the press of a button. He referred in cross-examination at the

Inquest to earlier briefings with intelligence sources concerning

possible methods of detonation, stating that he believed that there had

been a Provisional Army Council directive not to repeat the carnage of

Enniskillen and to keep the loss of life to innocent civilians to a

minimum. It was thought that the terrorists knew that if it rained the

parade would be cancelled and in that event, if a timer was used, they

would be left with a bomb that would go off indiscriminately.

42.   Soldier E also stated that at the briefing they were informed

that the bomb would be initiated by a "button job". In answer to a

question by a juror, he stated that there had been discussion with the

soldiers that there was more chance that they would have to shoot to

kill in view of the very short time factor which a "button job" would

impose. Soldier G said that at the briefing they were told that it was

going to be a radio-controlled car bomb. He denied that there had been

discussion as to whether a radio-controlled device or a timer would be

used.

43.   Soldier A recalled that they were told at the briefing that the

device would be radio-controlled though from the context of the

question is not apparent whether the soldiers were told this at the

general briefing or by E. A stated that he remembered only the gist of

the briefing, his recollections of various briefings being mixed up.

Soldier B recalled being told that there was a threat from a radio-

controlled bomb.  Soldier C said that a timer was never mentioned and

that Soldier E stressed to them that it would be a "button job".

Soldier D stated initially that they were  told that it would probably

be a remote controlled device but on further question by the Coroner

stated it would be a remote controlled device. He referred to having

received daily updates or discussions with E.

g.    Use of device by the ASU to detonate on arrest

44.   If the means of detonation was by radio control, it was possible

that the suspects might, if confronted, seek to detonate the device.

This was the assessment given by O.

45.   Soldier F also recalled that the assessment was that any one of

the three could be carrying a device.  In answer to a question pointing

out the inconsistency of this proposition with the assessment that the

IRA wished to minimise civilian casualties, F stated that the

terrorists would detonate in order nonetheless to achieve some degree

of propaganda success. He stated that the briefing by the intelligence

people was that it was likely if the terrorists were cornered they

would try to explode the bomb.

46.   Soldier E confirmed that they had been told that the three

suspects were ruthless and if confronted would resort to whatever

weapons or "button jobs" which they carried. He had particularly

emphasised to his soldiers that there was a strong likelihood that at

least one of them would be carrying a button job.

47.   Soldier B recalled being told by E that one or possibly all three

would be carrying a device. They were warned that the suspects were

highly dangerous, dedicated and fanatical. He did not remember being

told that they would attempt to detonate if arrested but was aware of

that possibility in his own mind. Soldier C said that he was told by

E that the three suspects were very experienced terrorists who would

not hesitate to use weapons or to detonate the bomb. His understanding

was that all three would have carried a detonator. Soldier D also

confirmed being told that all three might have carried a gun and

detonator and that they were dangerous and fanatical.

48.   It does not appear that there was any discussion at the briefing

as to the likely size, mode of activation or range of a remote control

device that might be expected. The soldiers appear to have received

information at their own briefings. Soldier F did not know the precise

size a radio detonator might be, but had been told that the device

would be small enough to conceal on the person. Soldier D was told that

the device could come in a small size and that it could be detonated

by the pressing of just one button.

49.   As regarded the range of the device, Soldier F said that the

military were told that the equipment which PIRA had was capable of

detonating a radio-controlled bomb over a distance of a mile and a

half.

Events on 6 March 1988

50.   Members of the surveillance teams were on duty in the streets of

Gibraltar as were Soldiers A, B, C and D and members of the police

force involved in the operation. Soldiers A, B, C and D were in

civilian clothing and were each armed with a 9mm Browning which was

carried in the rear waistband of their trousers. Each also carried a

radio concealed on their person. They were working in pairs. In each

pair, one was in radio communication on the tactical net and the other

on the surveillance net.  Police officers P, Q and R, who were on duty

to support the soldiers in any arrest, were also in plain clothes and

armed.

51.   The operations room opened at 8.00. The Commissioner was on duty

there from 10.30 to 12.30. When he left, Deputy Commissioner Colombo

took his place.

Surveillance at the border

52.   On 6 March 1988, at 8.00, Detective Constable Huart went to the

frontier to keep observation for the three suspects from the computer

room at the Spanish immigration post. He was aware of the real names

of the three suspects and had been shown photographs. The Spanish

officers had photographs. The computer room was at some distance from

the frontier crossing point itself. The Spanish officers at the

immigration post showed him passports by means of a visual aid unit.

It appears that they only showed him the passports of those cars

containing two men and one woman. Several pictures were flashed up for

him during the course of the day but he did not recognise them. At the

Inquest, under cross-examination, he at first did not recall that he

had been given any of the aliases that the three suspects might be

employing. Then,  however, he thought that he remembered the name of

Coyne being mentioned in relation to Savage and that at the time he

must have known the aliases of all three, as must the Spanish officers.

Chief Inspector Ullger, who had briefed Huart however, had no

recollection of the name of Coyne being mentioned before 6 March and

he only recalled the name of Reilly in respect of McCann. However, if

Huart recalled it, he did not doubt that it was so.

53.   On the Gibraltar side of the border, the customs officers and

police normally on duty were not informed or involved in the

surveillance  on the basis that this would involve information being

provided to an excessive number of people.  No steps were taken to slow

down the line of cars as they entered or to scrutinise all passports

since it was felt that this might put the suspects on guard. There was

however a separate surveillance team at the border and, in the area of

the airfield nearby, an arrest group. Witness M who led a surveillance

team at the frontier expressed disappointment at the apparent lack of

co-operation between the various groups involved in Gibraltar but he

understood that matters were arranged that way as a matter of security.

The Coroner commented on this aspect of the evidence in his summing-up

to the jury.

54.   At the Inquest, Chief Inspector Ullger stated, when pressed about

the failure to take more scrupulous measures on the Gibraltar side,

"in this particular case, we are talking about dangerous terrorists.

We were talking about a very, very major and delicate operation - an

operation that had to succeed. I think the only way it could have

succeeded is to allow the terrorists to come in and for the terrorists

to have been dealt with in the way they were dealt with as far as the

surveillance is concerned."

55.   While Soldiers E and F made reference to the preferred military

option as being to intercept and arrest the suspects in the frontier

area, it appears not to have been pursued with any conviction, on the

assumption that identification would not be possible in light of the

brief time available for identification to be made (10-15 seconds per

car) and the alleged lack of prior warning from the Spanish side.

Arrest options: Advisory Group policy

56.   Soldier F stated that the military option had been refined down

to the preferred option of arresting the suspects when they were on

foot in the assembly area. He referred also to four key indicators

formulated by the Advisory Group with a view to guiding the

Commissioner in determining how the arrest operation was to run:

i.    if a car was driven into Gibraltar and parked in the assembly

area by an identified member of the ASU;

ii. (slight variation on i.) if a car was driven in by ASU member

without prior warning;

iii.  the presence in Gibraltar of the other members of the ASU;

iv.   if there was clear indication that terrorists  having parked

their car bomb intended to leave Gibraltar ie. they were heading for

the border.

57.   The plan was for the arrest was to be carried out once all the

members of the ASU were present and identified and they had parked a

car which they intended to leave. Any earlier action was considered

premature as likely to raise suspicion in any unapprehended members of

the ASU with possible risk resulting and as leaving no evidence for the

police to use in court.

Sighting of Savage

58.   Detective Constable Viagas was on  surveillance duty in a bank

which had a view over the area in which the car driven in by the

terrorists was expected to be parked. At about 12.30, while Viagas was

letting into the premises another person from security service, he

heard a report over the surveillance net that a car had parked in a

parking space in the assembly area under observation. A member of the

Security Service commented that the driver had taken time to get out

and fiddled with something between the seats. Viagas saw the man lock

the car door and walk away towards the Southport Gate. One of the

Security Service officers present consulted a colleague as to possible

identification but neither was sure. A field officer was requested to

confirm the identity. Viagas could not himself identify the man from

his position. Within half an hour, the field officer reported that the

driver was not one of the suspects. This information does not appear

to have been received or recalled by the personnel in the operations

room.

59.   Witness N of the Security Service team on surveillance in the car

park in the assembly area recalled  that at 12.45 a white Renault car

drove up and parked, the driver getting out after 2-3 minutes and

walking away.

60.   A young man resembling Savage was spotted next at about 14.00 in

the area. Witness H, who was sent to verify his identification, saw the

suspect at about that time and recognised him as Savage without

difficulty. Witness N also saw the suspect at the rear of

John Mackintosh Hall and at 14.10 reported over the radio to the

operations room that he identified him as Savage and also as the man

who had earlier parked the car in the assembly area.

61.   Officer Q who was on duty on the street recalls hearing over the

surveillance net at about 14.30 that Savage had been identified.

62.   The Commissioner however did not recollect being notified about

the identification of Savage until he arrived in the operations room

at 15.00. Colombo did not recall hearing anything about Savage either

until it was reported that he had met up with two other suspects at

about 14.50. Soldiers E and F recalled however that a possible sighting

of Savage was reported at about 14.30. Soldier G also refers to the

later sighting at 14.50 as the first identification of Savage.

63.   There appears to have been a certain lag in information between

information on the ground either being received in the operations room

or in being passed on. Soldiers E and F may have been more aware than

the Commissioner of events since they were monitoring closely the

information coming in over the nets which apparently was not audible

to the Commissioner where he sat at a table away from the control

stations.

64.   Savage was followed for approximately an hour by Witness H who

recalled that the suspect was using anti-surveillance techniques such

as employing devious routes through the side streets. Witness N was

also following Savage, for an estimated 45 minutes, and considered that

Savage was alert and taking precautions, for example, stopping round

the corner at the end of alleyways to see who followed.

Sighting of McCann and Farrell

65.   Witness M who was leading the surveillance at the border stated

that two suspects passed the frontier at about 14.30 though apparently

they were initially not clearly identified.  They were on foot and

reportedly taking counter-surveillance measures (Farrell looking back

frequently). Their progress into Gibraltar was followed.

66.   At 14.30, Soldiers E and F recall a message being received that

there was a possible sighting of McCann and Farrell entering on foot.

Colombo rang the Commissioner from the operations room stating that two

persons believed to be McCann and Farrell had been seen crossing the

border on foot.

Sighting of three suspects in assembly area

67.   At about 14.50, it was reported to the operations room that the

suspected McCann and Farrell had met with a second man identified as

the suspect Savage and that the three were looking at a white Renault

car in the car park in the assembly area. It is at this point Colombo

and Soldier F recall being told that Savage was the man who had parked

the car. Soldier E remembers the time as being 15.00.

68.   Witness H stated that the three suspects spent some considerable

time staring across to where a car had been parked, in his assessment

as if they were studying it to make sure it was absolutely right for

the effect of the bomb.

69.   Detective Constable Viagas also witnessed the three suspects

meeting in the area of the car park, stating that all three turned

staring towards where the car was parked. He gave the time as about

14.55. He stated that the Security Services made identification of all

three at this moment.

70.   At this moment, with the three suspects static in the area of a

car driven in by one of them, the possibility of effecting arrest was

considered. There are different recollections. Colombo stated that he

was asked whether he would hand over control to the military for the

arrest but that he asked  whether the suspects had been positively

identified; he was told that there was 80% identification. Almost

immediately the three suspects moved away from the car through

Southport gates. Colombo recalled that the movement of the three

suspects towards the south gave rise to some discussion as to whether

this indicated that the three suspects were on reconnaissance and might

return for the car. It was for this reason that the decision was taken

not to arrest at this point. He considers that he did not pass control

at all to the military. Soldier F thought that control did pass but

that, when the three moved away, control was returned. Soldier E also

thought control passed though for not more than a few seconds. Both

Soldiers A and B were informed of this apparent passing of control: at

this time they were in the Main Street area not far away from the

location of the suspects.

71.   At 15.00, Colombo rang the Commissioner to inform him that it was

more and more likely to be McCann and Farrell. When the Commissioner

arrived shortly afterwards, Colombo informed him that McCann and

Farrell had met up with a third person thought to be Savage and that

an arrest had almost been made.

72.   The Commissioner asked for positive identification of the three

suspects. Identification was confirmed by 15.25 when it was reported

to the operations room that the three suspects had returned to the

assembly  area and gone past looking at the car again. The three

suspects continued north and away from the car. Soldiers E and F

recalled that control was passed a second time to the military but

immediately taken back as the Commissioner requested further

verification of the identities of the suspects. The soldiers on the

ground were also aware of this momentary change of control but the

Commissioner did not refer to it in his account of events at the

Inquest. The confirmation of identity which the Commissioner had

requested was received almost immediately.

Examination of the suspect car in the assembly area

73.   After the three suspects' identities had been confirmed and they

had moved away from the assembly area, Soldier G went down to examine

the suspect car. He conducted an examination from the exterior without

touching the car. He described it as a newish-looking white Renault.

He detected nothing untoward inside the car or anything visibly out of

place  or concealed under the seats. He noted that the aerial of the

car, which was rusty, was out of place with the age of the car. He was

in the area for less than 2 minutes. He returned to the operations room

and reported to the Commissioner that he regarded the car as a "suspect

car bomb". At the Inquest, he explained that this was a term of art for

a car parked in suspicious circumstances where there is every reason

to believe that it is a car bomb and that without tearing it apart it

could not be said that it was not a car bomb - "it is suspicious".

74.   The Commissioner recalled that G had reported that it was a

suspect bomb since there was an old aerial situated centrally of a

relatively new car. He stated that as a result they treated it as a

"possible car bomb".

75.   Soldier F referred to the aerial as rendering the car suspicious

and stated that this information was passed on to all the parties on

the ground.

76.   Soldier E was more categorical and stated that as far as G could

tell "from a cursory visual examination he was able to confirm our

suspicion that they were dealing with a car bomb".

77.   Soldier A stated that he believed 100% that there was a bomb in

the debussing area, that the suspects had remote control devices and

were probably armed. This was because of what he had been informed over

radio. Soldier C recalled that it had been confirmed by Soldier E that

there was a device in Ince's Hall area which could detonated by one of

three suspects who was more likely to be Savage because he had been

seen fiddling with the car earlier. He had also been told of the

indication of an old aerial on a new car.  Soldier D said that it had

been confirmed to him by Soldier E that there was a bomb there. To his

recollection, no-one told them that there was a possibility that the

three suspects might not be carrying the remote control devices with

them on the Sunday or that possibly they had not brought a bomb in. He

had been told that there was a bomb in the car and he believed that a

bomb was there because he had been informed of this by Soldier E whom

D fully trusted.

78.   At the Inquest Soldier G was described as being the bomb disposal

adviser. He had experience of car bombs from Northern Ireland but at

the Inquest, he stated in reply to various questions that he was

neither a  radio communications expert nor an explosives expert. He had

not thought of de-activating the suspect bomb by unscrewing the aerial

from the car. When it was put to him in cross-examination, he agreed

that to have attempted to unscrew the aerial would have been

potentially dangerous.

Passing of control to military for arrest

79.   After receiving the report from Soldier G and in view of the fact

that the three suspects were continuing northwards leaving the car

behind, the Commissioner decided that the three suspects should be

arrested on suspicion of conspiracy to murder. At 15.40, he signed a

form requesting the military to intercept and apprehend the suspects.

The form, which had been provided in advance by the military, stated:

      "I, Joseph Luis Canepa, Commissioner of Police, having

      considered the terrorist situation in Gibraltar and having

      been fully briefed on the military plan with firearms,

      request that you proceed with the military option which may

      include the use of lethal force for the preservation of

      life."

80.   After the  form was signed, Soldier F walked across to the

tactical net and issued instructions that the military should

intervene.

81.   Soldier E ascertained the positions of the soldiers by radio.

Soldiers C and D had been visually monitoring the movement of the three

suspects up Line Wall Road and Smith Dorrien Avenue. Soldiers A and B

were making their way north through Casements Square and into the

Landport tunnel. The soldiers were informed that control had passed to

them to make an arrest.

82.   The evidence at the Inquest given by the soldiers and a police

witness was that the soldiers had practised arrest procedures  on

several occasions with the police.  According to these rehearsals, the

soldiers were to approach the suspects to within a close distance,

cover the suspects with their pistols and shout "Stop. Police. Hands

up." or words to that effect. They would then make the suspects lie on

the ground with their arms away from their bodies until the police

moved in to carry out a formal arrest.

83.   On reaching the junction of Smith Dorrien Avenue with Winston

Churchill Avenue, the three suspects crossed the road and stopped on

the other side talking. Officer R, observing, saw them appear to change

newspapers. At this point, Soldiers C and D were approaching the

junction from Smith Dorrien Avenue. Soldiers A and B emerging from

Landport tunnel also saw the three  suspects at the junction from their

position where the pathway to the tunnel joined Corral Road.

84.   As the soldiers converged on the junction however, Savage split

away from McCann and Farrell turning south towards the Landport tunnel.

McCann and Farrell continued north up the righthand pavement of Winston

Churchill Avenue.

85.   Savage passed Soldiers A and B, brushing against the shoulder of

B. B was about to turn to effect the arrest but A told him that they

should continue towards McCann and Farrell, knowing that C and D were

in the  area and that they would arrest Savage. Soldiers C and D, aware

that A and B were following McCann and Farrell, crossed over from Smith

Dorrien Avenue and followed Savage.

McCann and Farrell shootings

86.   The evidence of Soldiers A and B at the Inquest was as follows.

87.   Soldiers A and B continued north up Winston Churchill Avenue

after McCann and Farrell, walking at a brisk pace to close the

distance. McCann was walking on the right of Farrell on the inside of

the pavement. He was wearing white trousers and a white shirt, without

any jacket. Farrell was dressed in a skirt and jacket and was carrying

a large handbag.

88.   When Soldier A was approximately 10 metres (though maybe closer)

behind McCann on the inside of the pavement, McCann looked back over

his left shoulder. McCann appeared to look directly at A and the smile

left his face, as if he had a realisation of who A was and that he was

a threat.

89.   Soldier A drew his pistol, intending to shout a warning to stop

at the same time, though he was uncertain if the words actually came

out. McCann's hand moved suddenly and aggressively across the front of

his body. A thought that he was going for the button to detonate the

bomb and opened fire. He shot one round into McCann's back from a

distance of 3 metres (though maybe it may have been closer). Out of the

corner of his eye, A saw a movement by Farrell. Farrell had been

walking on the left of McCann on the side of the pavement next to the

road. A saw her make a half turn to the right towards McCann grabbing

for her handbag which was under her left arm. A thought that she was

also going for a button and shot one round into her back. He did not

disagree when it was put to him that the forensic evidence suggested

that he may have shot from a distance of 3 feet (see para. 144). Then

A turned back to McCann and shot him once more in the body and twice

in the head. A was not aware of B opening fire during this. He fired

a total of 5 shots.

90.   Soldier B was approaching directly behind Farrell on the roadside

of the pavement. He was watching her. When they were 3-4 metres away

and closing, he saw in his peripheral vision that McCann turned his

head to look over his shoulder. He heard what he presumed was a shout

from A which he thought was the start of the arrest process. At almost

the same instant, there was firing to his right. Simultaneously,

Farrell made a sharp movement to her right, drawing the bag which she

had under left arm across her body. He could not see her hands or the

bag and feared that she was going for the button. He opened fire on

Farrell. He deemed that McCann was in a threatening position and was

unable to see his hands and switched fire to McCann. Then he turned

back to Farrell and continued firing until he was certain that she was

no longer a threat, namely, her hands away from her body. He fired a

total of 7 shots.

91.   Both soldiers denied that Farrell or McCann made any attempt to

surrender with their hands up in the air or that they fired at the two

suspects when they were lying on the ground. At the Inquest in response

to questions by Mr. P.J. McGrory, Soldier A stated expressly that his

intention had been to kill McCann "to stop him becoming a threat and

detonating that bomb".

92.   The shooting took place on the pavement in front of a Shell

petrol station in Winston Churchill Avenue.

93.   After the shooting, the soldiers put on berets so they would be

recognised by the police. They noticed a police car, with its siren

going, coming south from the sundial down the far side of Winston

Churchill Ave. A number of policemen jumped out of the car and leapt

the central barrier. Soldier A still had his pistol in his hand. He put

his hands up in air and shouted "Police". A recalled hearing shooting

from behind as the police car was approaching.

94.   While neither of the soldiers were aware of the police car or

siren until after the shooting, the majority of witnesses, including

the police officers P, Q and R who were in the vicinity to support the

soldiers in the arrest and a number of the surveillance team as well

as civilian witnesses, recalled that the sound of the police siren

preceded, if only by a very short time, the sound of the gunfire.

Officers P and Q, who were watching from a relatively close distance,

considered that Farrell and McCann reacted to the sound of the siren:

Q was of the opinion that it was the siren that caused Farrell and

McCann to stop and turn.

95.   The arrival of the police car at the scene was an unintended

occurrence. After the Commissioner had handed over control to the

military at 15.40, he instructed Colombo to ensure that there was

police transport available. Colombo telephoned Chief Inspector Lopez

at the Central Police Station, who in turn instructed the Controller

Police Constable Goodman to recall the duty police car. The Controller

recorded the call at 15.41. He radioed the patrol car informing the

officers that they were to return immediately. He did not know where

the car was at the time or what the reason for the recall was. When

Inspector Revagliatte who was in the car asked if it was urgent, the

Controller told him it was a priority message and further instructions

would be given on arrival.

96.   At the time of the message, the police car was waiting in a queue

of traffic in Smith  Dorrien Avenue. Revagliatte told the driver to put

on siren and beacons. The car pulled out into the opposite lane to

overtake the queue of traffic. They cut back into the proper lane at

the lights at the junction with Winston Churchill Avenue and continued

north along Winston Churchill Avenue in the outer lane. As they passed

the Shell garage, the four policemen in the car heard shots.

Revagliatte instructed the driver to continue. When he looked back, he

saw 2 persons lying on the pavement. The car went round the sundial

roundabout and returned to stop on the other side of the road opposite

the Shell garage. The police siren was on during this time. When the

car stopped, the four policemen got out, three of them jumping the

central barrier and Revagliatte walking round to arrive at the scene.

97.   Officers P, Q and R were in the vicinity of  the Shell petrol

station and also arrived quickly on the scene of the McCann and Farrell

shootings. Officer P and R placed their jackets over the bodies.

Officer P dropped his gun while crouched and had to replace it in his

holster. Officer Q and Revagliatte carried out a search of the bodies.

Eye-witness accounts

98.   The shooting took place on a fine Sunday afternoon, when there

were many people out on the streets and the roads were busy with

traffic. The Shell garage was also overlooked by a number of apartment

buildings. The shooting consequently was witnessed by a considerable

number of people, including police officers involved in the operation,

police officers who happened to pass the area on other duties, members

of the surveillance team and a number of civilians and off-duty

policemen.

99.   Almost all the witnesses who gave evidence at the Inquest

recalled that Farrell had carried her bag under her right arm, not as

stated by Soldiers A and B under her left arm. The Coroner commented

in his summing-up to the jury that this might have had significance

with regard to the alleged justification of the soldiers for opening

fire, namely, the alleged movement of the bag across the front of her

body.

100.  More significantly, three witnesses, two of whom gave an

interview on the controversial documentary concerning the events "Death

on the Rock" gave evidence which suggested that McCann and Farrell had

been shot while lying on the ground. They stated that they had

witnessed the shooting from apartment buildings overlooking the Shell

petrol station.

101.  Mrs. Celecia saw a man lying on a pavement with another nearby

with his hands outstretched: while she did not see a gun she heard

shots which she thought came from that direction. After the noise, the

man whom she had thought was shooting appeared to put something inside

his jacket.  When shown a photograph of the aftermath of the scene,

Mrs. Celecia failed to identify either Soldier A or B as the man whom

she thought that she had seen shooting.

102.  Mr. Proetta saw a girl put her hands up though he thought it was

more in shock than in surrender. After she had been shot and fallen to

the ground, he heard another fusillade of shots. He assumed that the

men nearby were continuing to fire but agreed that there was an echo

in the area and that the sound could have come from the Landport tunnel

area.

103.  Mrs. Proetta saw a man and a woman raise their hands over their

shoulders with open palms. They were shot, according to her

recollection, by men who jumped the barrier. When the bodies were on

the ground, she heard further shots and saw a gun in the hand of a man

crouching nearby, though she did not see any smoke or cartridges

ejecting from the gun. She assumed since she saw a gun that the shots

came from it. It also appears that once the bodies fell they were

obscured from her view by a low wall and all she saw was a man pointing

in their direction.

104.  Mr. Bullock recalled seeing a man reeling backwards under fire

with his hands thrown back.

105.  None of the other witnesses saw McCann or Farrell put their hands

up or the soldiers shoot at the bodies on the ground.

106.  Witness I, a member of the surveillance team, stated that he saw

McCann and Farrell shot when they were almost on the ground, but not

on the ground.

107.  While the soldiers were not sure that any words of warning were

uttered by Soldier A, four witnesses (Officers P and Q, Witness K and

Police Constable Parody) had a clear recollection of hearing words

"Police, stop" or words to that effect.

108.  Officer P, who was approaching from the north and had reached the

perimeter wall of the Shell garage, states that he saw McCann make a

move as if going for a gun and that Farrell made a move towards her

handbag which made him think that she was going for a detonator.

Officer Q, who was watching from the other side of the road, also saw

Farrell make a move towards her handbag, as did Police Constable Parody

an off-duty policeman watching from an overlooking apartment.

The shooting of Savage

109.  At the Inquest the evidence of Soldiers C and D was to the

following effect.

110.  After the three suspects had split up at the junction, Soldier

D crossed the road and followed Savage who was heading towards the

Landport tunnel. Savage was wearing jeans, shirt and a jacket. Soldier

C was briefly held up on the other side of the road by traffic on the

busy road but was catching up as D closed in on Savage. D intended to

arrest by getting slightly closer, drawing his pistol and shouting

"Stop. Police. Hands up". When D was about 3 metres away, he felt that

he needed to get closer because there were too many people about and

there was a lady directly in line. Before D could get closer however,

he heard gunfire to the rear. At the same time, C shouted "Stop".

Savage span round and his arm went down towards his right hand hip

area. D believed that Savage was going for a detonator. He used one

hand to push the lady out of line and opened fire from about 2-3 metres

away. D fired 9 rounds at rapid rate, initially aiming into the centre

of Savage's body, with the last 2 at his head. Savage corkscrewed as

he fell. D acknowledged that it was possible that Savage's head was

inches away from the ground as he finished firing. He kept firing until

Savage was still on the ground and his hands were away from his body.

111.  Soldier C recalled following after Savage, slightly behind D.

Savage was about  8 feet from the entrance to the tunnel but maybe

more. C's intention was to move forward to make arrest when he heard

shots to his left rear from the direction in which Farrell and McCann

had headed. Savage span round. C shouted "Stop" and drew his pistol.

Savage moved his right arm down to the area of jacket pocket and

adopted a threatening and aggressive stance. C opened fire since he

feared Savage was about to detonate the bomb. He saw something bulky

in Savage's right hand pocket which he believed to be a detonator

button. He was about 5-6 feet from Savage. He fired 6 times as Savage

spiralled down, aiming at the mass of his body. One shot went into his

neck and another into his head as he fell. C continued firing until he

was sure that Savage had gone down and was no longer a threat to

initiate device.

112.  At the Inquest, both soldiers stated under cross-examination that

once it became necessary to open fire they would continue shooting

until the person was no longer a threat. C agreed that the best way to

ensure this result was to kill. D stated that he was firing at Savage

to kill him and that this was the way that all soldiers were trained.

Both soldiers however denied that they had shot Savage while he was on

the ground.

113.  The soldiers put on berets after the incident to identify

themselves to the police.

Eyewitness accounts

114. Witnesses H, I and J had been involved in surveillance of the

three suspects in or about the Smith Dorrien/ Winston Churchill area.

115.  Witness H had observed Soldiers A and B moving after McCann and

Farrell up Winston Churchill Avenue. He moved to follow Savage whom he

noticed on the corner about to turn into the alleyway leading to

Landport tunnel. He indicated Savage to Soldiers C and D who were

accompanying him at this point. While he was moving to follow Savage,

H saw the McCann and Farrell shooting from a distance. He continued to

follow after Savage who had gone into the alleyway. He heard a siren,

a shout of "stop" and saw Savage spin round. The soldiers were 5 feet

away from Savage. H then turned away and did not witness the shooting

itself.

116.  Witness I had met with Witness H and Soldier D and had confirmed

that Savage had gone towards the Landport tunnel. Witness I entered the

alleyway after the shooting had begun. He saw 1-2 shots being fired at

Savage who was  on the ground. He saw only one soldier firing from a

distance of 5, 6 or 7 feet. He did not see the soldier put his foot on

the chest of Savage while shooting.

117.  Witness J had followed after Savage when he had split from McCann

and Farrell. When Savage was 20 feet into the alleyway near a large

tree, she heard noise of gunfire from behind and at that same time a

police siren in fairly close proximity. Savage span round very quickly

at the  sound of gunfire, looking very stunned. J turned away and did

not see the shooting. When she turned round again, she saw Savage on

his back and a soldier standing over him saying "Call the police".

118.  Mr. Robin Mordue witnessed part of the shooting but as he fell

to the ground himself and later took cover behind a car he saw only

part of the incident. He did not recall Savage running. When he saw the

soldier standing over Savage, there were no more shots.

119.  The evidence of Mr. Kenneth Asquez was surrounded by most

controversy. A handwritten statement made by him appears to have been

used by Thames Television in its documentary "Death on the Rock"(see

para. 135). The draft of an affidavit, prepared by a lawyer acting for

Thames Television who interviewed Mr. Asquez but not approved by him,

was also used for the script of the programme. In them, he alleged that

while in a friend's car on the way to the frontier via Corral Road, he

passed the Landport tunnel. He heard "crackers" and saw a man bleeding

on the floor. He saw another man showing an ID card and wearing a black

beret who had his foot on the dying man's throat and was shouting

"Stop. It's OK. It's the police." At that instance, the man fired a

further 3-4 shots. At the Inquest, he stated that the part of the

statement relating to the shooting was lies made up by him. He appeared

considerably confused and contradicted himself frequently. When it was

pointed out to him that until the Inquest it had not become known that

the soldiers wore berets (no newspaper report had mentioned the detail)

he supposed that he must have heard it in the street. When asked at the

Inquest why he had made up the statement, he referred to previous

illness, pressure at work and the desire to stop being telephoned by

a person who was asking him to give an interview to the media.

120.  Miss Treacy claimed that she was in the path leading from the

tunnel and that she was between Savage and the first of the soldiers

as the firing began, though not in the line of fire. She recalled that

Savage was running and thought that he was shot in the back as he faced

towards the tunnel. She did not see him shot on the ground. Her account

contained a number of apparent discrepancies with the evidence of other

witnesses; she said the soldier shot with his left hand whereas he was

in fact right-handed; no-one else described Savage as running; and she

describes the body as falling with feet towards the nearby tree rather

than his head which was the way all the other witnesses on the scene

described it. The Coroner in his summing-up thought that it might be

possible to reconcile her account by the fact that Miss Treacy may have

not been looking at Savage as he span round to face the soldiers and

that by the time she did look he was spinning round towards the tunnel

in reaction to the firing.

121.  Mr. Bullock and his wife stated that a man pushed past them as

they walked up Smith Dorrien Avenue to the junction and that they saw

that he had a gun down the back of his trousers. They saw him meet up

with another man, also with a gun in his trousers, on the corner of the

alleyway to the Landport tunnel. The men were watching the shooting

outside the Shell garage and when the shooting stopped, they turned and

ran out of sight. After that there was another long burst of shooting.

122.  Another witness, Mr Jerome Cruz, however, who was in a car in the

traffic queue in Smith Dorrien Avenue and who remembered seeing

Mr. Bullock dive for cover, cast doubts on his version. In particular

he stated that Mr. Bullock was not near the end of Smith Dorrien Avenue

but further away from the Shell garage (more than 100 yards away) and

that he had dived for cover as soon as there was the sound of shooting.

He agreed that he had also seen persons crouching looking from behind

a wall at the entrance to the pathway leading to the tunnel.

Aftermath of the shootings

123.  At 15.47-15.48, E received a message in the operations room that

apprehension of the three suspects had taken place. It was not clear

at that stage whether they had been arrested or shot. By 16.00-16.05,

the report was received in the operations room that the three suspects

had been shot.

124.  At 16.05-16.06, Soldier F handed a form to the Commissioner

returning control.  According to the transcript of the evidence given

by the Commissioner at the Inquest, this form addressed to him by

Soldier F stated that, "at 16.06 on 6 March a military assault force

was completed at the military option in respect of the terrorist

bombing ASU in Gibraltar. Control is hereby handed back to the Civil

Power". Deputy Commissioner Colombo telephoned to Central Station for

the evacuation plans to be put into effect. Instructions were also

given with a view to taking charge of the scenes of the incidents.

Soldier G was also instructed to commence the clearance of the car.

125.  After the shooting, the bodies of the three suspects and

Farrell's handbag were searched. No weapons or detonating devices were

discovered.

126.  At the Shell garage scene, the shell cases and cartridges were

picked up without marking their location or otherwise recording their

position. The positions of the bodies were not marked.

127.  At the scene of the Savage shooting, only some of the cartridge

positions were marked. No police photographs were taken of the bodies'

positions. Inspector Revagliatte had made a chalk outline of the

position of Savage's body. Within that outline, there were 5 strike

marks, three in the area of the head.

128.  Chief Inspector Lopez ordered a general recall of personnel and

went directly to the assembly area to begin cordoning it off. The fire

brigade also arrived at the assembly area. The bomb disposal team

opened the suspect White Renault car but found no explosive device or

bomb. The area  was declared safe between 19.00 and 20.00.

Post incident investigation

129.  Chief Inspector Correa was appointed in charge of the

investigation.

130.  Inside Farrell's handbag was found a key ring with two keys and

a tag bearing a registration number MA9317AF. This information was

passed at about 17.00 to the Spanish police who commenced a search for

the car on the suspicion that it might contain explosives.  During the

night of 6-7 March, the Spanish police found a red Ford Fiesta with

that registration number in La Linea. Inside the car were found car

keys for another car registration no. MA2732AJ with a car rental

agreement indicating that the car had been rented at 10.00 on 6 March

by Katharine Smith, the name on the passport carried in Farrell's

handbag.

131.  At about 18.00 on 8 March,  a Ford Fiesta car with registration

number MA2732AJ was discovered in a basement car park in Marbella. It

was opened by the Malaga bomb disposal squad and found to contain an

explosive device in the boot concealed in the spare wheel compartment.

The device consisted of 5 packages of Semtex explosive (altogether 64

kg) to which were  attached 4 detonators and around which were packed

200 rounds of ammunition. There were two timers marked 10 hrs 45 mins

and 11 hrs 15 mins respectively. The device was not primed or

connected.

132.  In the report compiled by the Spanish police on the device dated

Madrid 27 March 1988, it was concluded that there was a double

activating system to ensure explosion even if one of the timers failed;

the explosive was hidden in the spare wheel space to avoid detection

on passing the Spanish/Gibraltarian customs; the quantity of explosive

and use of cartridges as shrapnel indicated the terrorists were aiming

for greatest effect; and that it was believed that timing of the device

was set to explode at the time of the military parade on 8 March 1988.

133.  Chief Inspector Correa, who acted also as Coroner's Officer,

traced and interviewed witnesses of the shooting of the three suspects.

Police officers visited residences in the area knocking on doors and

returning a second time where persons were absent. The Attorney General

made two or three appeals to the public to come forward. At the

Inquest, Correa commented that the public appeared more than usually

reluctant to come forward to give statements to the police.

134.  A post mortem was conducted in respect of the three deceased

suspects on 7 March 1988. Professor Watson, a highly qualified

pathologist from the United Kingdom, carried out the procedure. His

report was provided to a pathologist, Professor Pounder, instructed by

the applicants. Comment was later made at the Inquest by both

pathologists with regard to defects in the post mortem procedures. In

particular, the bodies had been stripped before Professor Watson saw

them, depriving him of possible aid in establishing entry and exit

wounds, there had been no X-ray facilities and Professor Watson had not

later been provided either with a full set of photographs for

reference, or the forensic and ballistics reports.

"Death on the Rock"

135.  On 28 April 1988, Thames Television broadcast a documentary

entitled "Death on the Rock" during which a reconstruction was made of

the alleged surveillance of the terrorists' car by the Spanish police

and witnesses to the shootings described what they had seen, including

allegations that McCann and Farrell had been shot while on the ground.

A statement by an anonymous witness was read out to the effect that

Savage had been shot by a man who had his foot on his chest. The

Independent Broadcasting Authority had rejected a request made by the

Foreign Secretary to postpone the programme until after the holding of

the inquest into the deaths.

The Gibraltar Inquest

136.  An Inquest by the Gibraltar Coroner into the killings was opened

on 6 September 1988. The families of the deceased (which included the

applicants) were represented, as were the SAS soldiers and the United

Kingdom Government. The Inquest was presided over by the Coroner who

sat with a jury chosen from the local population.

137.  Prior to the Inquest, three certificates to the effect that

certain information should not, in the public interest, be disclosed,

were issued by the Secretary of State for the Home Department, the

Secretary of State for Defence and the Deputy Governor of Gibraltar,

dated respectively 26 August, 30 August and 2 September 1988. These

stated that the public interest required that the following categories

of information be protected from disclosure:

      1. In the case of the seven military witnesses, the objection

      was to the disclosure of any information or documents which would

      reveal:

      (i) their identity;

      (ii) the identity, location, chains of command, method of

      operation and the capabilities of the units with which the

      soldiers were serving on 6 March 1988;

      (iii) the nature of their specialist training or equipment;

      (iv) the nature of any previous operational activities of the

      soldiers, or of any units with which any of them might at any

      time have served;

      (v) in the case of Soldier G (the Ammunition Technical Officer),

      any defence intelligence information, activities or operations

      (and the sources of intelligence), including those on the basis

      of which his assessments were made and details of security forces

      counter-measures capabilities, including methods of operation,

      specialist training and equipment.

      2. In the case of Security Service witnesses, the objection was

      to the disclosure of information which would reveal:

      (a) the identities of members of the Security Service, and

      details of their deployment, training and equipment;

      (b) all sources of intelligence information;

      (c) all details of the activities and operations of the Security

      Service.

138.  As was, however, expressly made clear in the certificates, no

objection was taken to the giving of evidence by either military or

Security Service witnesses as to:

      (i) the nature of the information relating to the feared IRA

      plot, which was transmitted to the Commissioner of Police and

      others concerned (including general evidence as to the nature of

      a Provisional IRA Active Service Unit);

      (ii) the assessments made by Soldier G as to the likelihood of,

      and the risks associated with, an explosive device and as to the

      protective measures which might have to be taken;

      (iii) the events leading up to the shootings on 6 March 1988 and

      the circumstances surrounding them, including evidence relating

      to the transfer of control to the military power.

139.  The Inquest lasted until 30 September and during the 19 days it

sat, evidence was heard from 79 witnesses, including the soldiers,

police officers and surveillance personnel involved in the operation.

Evidence was also heard from pathologists, forensic scientists and

experts in relation to the detonation of explosive devices.

Pathologists evidence at the Inquest

140.  Evidence was given by Professor Watson, the pathologist who had

conducted the post mortem on the deceased on 7 March 1988 and also by

a pathologist Professor Pounder called on behalf of the applicants.

141.  Concerning Farrell, it was found that she had been shot three

times in the back, from a distance of some three feet according to

Pounder. She had five wounds to the head and neck. The facial injuries

suggested that either the entire body or at least the upper part of the

body was turned towards the shooter.  A reasonable scenario consistent

with the wounds was that she received the shots to the face while

facing the shooter, then fell away and received the shots to the back.

Watson agreed that the upward trajectory of the bullets that hit

Farrell indicated that she was going down or was down when she received

them.

142.  Concerning McCann, he had been shot in the back twice and had

three wounds in the head. The wound on the top of the head suggested

that the chest wounds came before the head wound and that he was down

or very far down when it was inflicted.  The shots to the body were at

about a 45 degree angle.

143.  Concerning Savage, he was hit by 16 bullets. He had seven wounds

to the head and neck, five on the front of the chest, five on the back

of the chest, one on the top of each shoulder, three in the abdomen,

two in the left leg, two in the right arm and two on the left hand.

The position of the entry wounds suggests that some of the wounds were

received facing the shooter.  But the wounds in the chest had entered

at the back of the chest. Watson agreed that Savage was "riddled with

bullets" and that "it was like a frenzied attack". He agreed that it

would be reasonable to suppose from the strike marks on the pavement

that bullets were fired into Savage's head as he lay on the ground.

Pounder also agreed that the evidence from strike marks on the ground

and the angle and state of wounds indicated that Savage was struck by

bullets when lying on back on the ground by a person shooting standing

towards his feet. He insisted under examination by counsel for the

soldiers that the 3 strike marks on ground within the chalk outline

corresponded with wounds to head: "Those wounds must have been

inflicted when either the head was on the ground or very close to the

ground indeed" and when pressed "within inches of the ground".

Forensic evidence at the Inquest

144.  A forensic scientist specialising in firearms had examined the

clothing of the three deceased for, inter alia, powder deposits which

would indicate that shots had been fired at close range. He found signs

of partly burnt propellant powder on the upper right back of Farrell's

jacket and upper left front of Savage's shirt which indicated close

range firing. He conducted tests which indicated that such a result was

only obtained with a Browning pistol at range of up to 6 feet. The

density on Farrell's jacket indicated a muzzle to target range of

3 feet and on Savage's shirt of 4-6 feet.

Evidence relating to detonation devices

145.  Issues arose at the Inquest as to whether, even if the three

suspects had been carrying remote control devices, they would have been

able to detonate the bomb which was approximately 1.4 km from the place

where they were shot. Also it was questioned whether the soldiers could

reasonably have expected that the applicants could have concealed the

devices on their persons without it being apparent and whether in fact

the device could have been detonated by pressing only one button.

146.  Mr. Feraday gave evidence for the Crown. He was a forensic

scientist employed at Explosives Forensic Laboratory at Royal Armament

Research and Development Establishment, with 33 years experience of

explosives. He produced a device known as ICOM IC2 as an example of

device used in Northern Ireland, which was the size of a standard

commercial walkie-talkie.

147.  While referring to the factors which could effect the range (for

example, terrain, weather conditions) Feraday stated that the equipment

could in optimum conditions operate up to a 30 mile range. In his

opinion, the aerial on the suspect car could have received signal

though its efficiency would have been fairly poor as it was not the

right length for the frequency. He considered that one would have to

assume that from the distance of about a mile a bomb could be detonated

by remote control using that aerial.

148.  The applicants called Dr. Scott, who held a masters degree and

doctorate in engineering and was a licensed radio operator. He had been

involved in two IRA trials in England. He had conducted tests with

similar receivers along the route taken by the three suspects. He

referred to the fact that there was rising ground between the sites of

the shootings and the assembly area as well as a thick wall and a

considerable number of buildings. The IRA used encoders and decoders

on their devices to prevent spurious signals detonating their bombs:

this required that a good clean signal was received. Having regard to

the aerial which "was a joke" from the efficacy point of view, the

wrong length for the expected frequency and pointing along the roof

rather than standing vertically, he maintained his professional opinion

that the purported receiver could not have been detonated by a

transmitter in the circumstances of the case.

149.  Dr. Scott also explained how the transmitter would operate.

Assuming the dial setting the frequency was already set, it would be

necessary to activate the on/off power switch, followed by the on/off

switch on the encoder and then a third button would have to be pressed

in order to transmit. While it would be possible to set the device so

that it would be necessary to press one button (the transmit button)

in order to detonate a bomb, this would require leaving the power

switches on for both the transmitter and the encoder with the risk that

the batteries would run down. There would also be the risk that the

device might be set off accidentally by being bumped in the street or

being hit by a bullet or by a person falling awkwardly so as to hit the

edge of a pavement or bench.

150.  Captain Edwards was called by the lawyer representing the

soldiers to rebut this evidence. He was a member of the Royal Corps of

Signals and had experience in VHF/HF radio in combat net radio

spectrum. He carried out tests to see if voice communications were

possible on an ICOM type radio in the area or from Shell garage to

Ince's Hall. The equipment used was not identical to that of Dr. Scott.

He stated that it was possible to receive both voice communication and

a single audio tone at the site of the shootings from the assembly

area. He did not however use an encoder and his equipment was matched

and compatible. Mr. Feraday was also recalled. He gave the opinion that

if a weak voice communication could be received then the signal would

be sufficient to set off a bomb.

151.  It appears to have been accepted by all that the IRA have

developed the use of high frequency devices, which require shorter

aerials and have a surer line of sight effect. These are stated to have

the characteristics suitable for detonation when the operator of the

device has line of sight of the bomb and carry with them less

possibility of interference from other radio sources or

countermeasures. No examples were known or at least given as to this

type of remote control detonation being used other than in line of

sight conditions.

Proceedings at the Inquest

152.  At the Inquest, the representative of the applicants,

Mr. P.J. McGrory, questioned the witnesses and made submissions to the

effect, inter alia, that either the decision to shoot to kill the

suspects had been made by the United Kingdom Government prior to the

incident and the soldiers were ordered to carry out the shootings or

that the operation was planned and implemented in such a way that the

killing of the suspects by the soldiers was the inevitable result.  In

any event, in light of the circumstances, the use of lethal force by

the soldiers was not necessary or, if it was necessary, the force used

was excessive and therefore not justified. He maintained throughout

however that he did not challenge that the Commissioner of Police and

his officers had acted properly and in good faith.

153.  Soldier F (the senior military commander) and Soldier E (the

tactical commander) denied that there had been a plan, express or

tacit, to execute the suspects. When it was put to Soldiers A, B, C and

D, they also denied that they had been sent out either expressly or on

the basis of "a nod or a wink" to kill the suspects.

154.  At the conclusion of the Inquest, the Coroner addressed the jury

in respect of the applicable law, in particular, Article 2 of the

Gibraltar Constitution (see para 169). He summed up the respective

propositions of the applicants' representatives and the representatives

of the soldiers and the Crown referring to the evidence. He concluded

from the evidence given by the soldiers that when they opened fire they

shot intending to kill and directed the jury as to the range of

possible verdicts:

      "...If the soldiers set out that day with the express intent to

      kill that would be murder and it would be right to return a

      verdict of unlawfully killed. Example two: were you to find in

      the case of Savage (or any of the other two for that matter) that

      he was shot on the ground in the head after effectively being put

      out of action, that would be murder if you come to the conclusion

      that the soldiers continued to finish him off. In both cases they

      intended to kill not in self defence or on the defence of others

      or in the course of arrest....so it is murder and you will return

      a verdict of unlawfully killed. If in this second example you

      were to conclude that it is killing in pursuance of force used

      which was more than reasonably necessary, then the verdict should

      also be killed unlawfully but it would not have been murder. The

      third example I offer is precisely of that situation. If you

      accept that the account that the soldiers' intention was

      genuinely to arrest (in the sense that they were to apprehend the

      three suspects and hand them over live to the Gibraltar Police

      force) and that the execution of the arrest went wrong and

      resulted in the 3 deaths because either (a) force was used when

      it was not necessary or (b) the force that was used was more than

      was reasonably necessary then that would not be murder...and the

      verdict would be as I say unlawfully killed. Example 4: If you

      are satisfied that the soldiers were acting properly but

      nevertheless the operation was mounted to encompass the deaths

      of the three suspects to the ignorance of the soldiers then you

      would also bring in a verdict of unlawfully killed.

      ...So there are only 3 verdicts reasonably open to you and these

      are:

      (a) Killed unlawfully, that is unlawful homicide.

      (b) Killed lawfully, that is justifiable, reasonable homicide.

      (c) Open verdict.

      Remembering that you must be satisfied beyond reasonable doubt

      where the verdict of unlawfully killed is concerned; there are

      2 situations to consider. The first concerning the soldiers

      themselves, the second if they have been the unwitting tools of

      a plot to dispose of the 3 suspects.

      As to the first concerning the soldiers themselves I must tell

      you that if you are not satisfied beyond a reasonable doubt that

      they have killed unlawfully you have then to decide whether your

      verdict should be an open verdict or one of justifiable homicide.

      My direction to you is that you should bring in a verdict of

      justifiable homicide ie killed lawfully because in the nature of

      the circumstances of this incident that is what you will have

      resolved if you do not return a verdict of unlawful homicide in

      respect of the soldiers themselves. That is the logic of the

      situation. You may reach a situation in which you cannot resolve

      either way in which case the only alternative is to bring in an

      open verdict but I must urge you, in the exercise of your duty,

      to avoid this open verdict. As to the second situation where they

      are unwitting tools, the same applies..."

155.  The jury returned verdicts of lawful killing by a majority.

Proceedings in Northern Ireland

156.  The applicants were dissatisfied with these verdicts and

commenced actions in the High Court of Justice in Northern Ireland

against the Ministry of Defence for the loss and damage suffered by the

estate of each deceased as a result of their death. The statements of

claim were served on 1 March 1990.

157.  On 15 March 1990 the Secretary of State for Foreign and

Commonwealth Affairs issued certificates under Section 40(3)a of the

Crown Proceedings Act 1947, as amended by the Crown Proceedings

(Northern Ireland) Order 1981. Section 40(2)b of the same Act excludes

proceedings in Northern Ireland against the Crown in respect of

liability arising otherwise than "in respect of Her Majesty's

Government in the United Kingdom". A similar exemption applies to the

Crown in Northern Ireland pursuant to the 1981 Order. A certificate by

the Secretary of State to that effect is conclusive. The certificates

stated in this case that any alleged liability of the Crown arose

neither in respect of Her Majesty's Government in the United Kingdom,

nor in respect of Her Majesty's Government in Northern Ireland.

158.  The Ministry of Defence then moved to have the actions struck

out. The applicants challenged the legality of the certificates in

judicial review proceedings. Leave to apply for judicial review was

granted ex parte on 6 July 1990, but withdrawn on 31 May 1991, after

a full hearing, on the basis that the application had no reasonable

prospects of success. Senior Counsel advised that an appeal against

this decision would be futile.

159.  The applicants' High Court actions were struck off on

4 October 1991.

C.    Evidence before the Commission

      a. transcript of the Inquest

      b. statement of Chief Inspector Valenzuela

160.  While invitation had been made by the Gibraltar police for a

Spanish police officer to attend the Inquest to give evidence relating

to the role of the Spanish police, he did not attend, apparently since

he did not receive permission from his superiors.

161.  The Government have provided the Commission with a copy of a

statement made by Chief Inspector Rayo Valenzuela, a police officer in

Malaga, dated 8 August 1988. According to this statement, the United

Kingdom police had at the beginning of March provided the Spanish

police with photographs of the possible members of the ASU, named as

Daniel McCann, Mairead Farrell and Sean Savage. The three individuals

were observed arriving at Malaga airport on 4 March 1988 but trace of

them was lost as they left. There was then a search to locate the three

suspects during 5-6 March 1988.

162.  This statement provided by the Government was not included in the

evidence submitted at the Inquest as the Coroner declined to admit it

following the objection by Mr. P.J. McGrory who considered that it

constituted hearsay in the absence of any police officer from Spain

giving evidence in person.

      c. statement of Mr. Harry Debelius

163.  This statement, dated 21 September 1988 and supplied on behalf

of the applicants, is by  a journalist who acted as consultant to the

makers of the Thames Television programme "Death on the Rock". He

states that the white Renault car used by the ASU was under

surveillance by the Spanish authorities as it proceeded down the coast

towards Gibraltar. Surveillance is alleged to have been conducted by

4-5 police cars which "leapfrogged" to avoid suspicion, by helicopter

and by agents at fixed observation points. The details of the car's

movements were transmitted to the authorities in Gibraltar who were

aware of the car's arrival at the border. He refers to the source of

this information as being Sr. Augustin Valladolid, a spokesman for the

Spanish security services in Madrid, with whom he and Mr. Julian

Manyon, a reporter for Thames Television, had an interview lasting from

18.00 to 19.20 on 21 March 1988.

164.  The applicants intended submitting this statement as evidence

before the Inquest. The Coroner decided however that it should also be

excluded as hearsay on the same basis as the statement relied upon by

the Government in paragraph 162 above.

      d. exhibits provided by the parties

165.  An ICOM transmitter device has been provided to the Commission

by the Government with an improvised encoder attached. The dimensions

of the transmitter are 18 cm x 6.5 cm x 3.7 cm: the encoder (which is

usually taped to the transmitter and which can be contained in a small

flat Strepsil tin) is 8 cm x 9 cm x 3 cm. The aerial from the

transmitter is 18 cm long.

166.  The applicants have supplied a simulated model of similar

dimensions.

167.  The Government have provided an ordnance survey map of Gibraltar

and a street map of Gibraltar.

      e. further material submitted by the applicants

168.   The applicants have supplied the recent judgment of the Court

of Appeal overturning a conviction on explosives charges in which

Mr. Feraday's evidence as to alleged intended terrorist use of

electronic timer gadgets was found to be dogmatic and open to doubt at

the very least (R. v. Berry, judgment of the Court of Appeal

28 September 1993). They also attach a further opinion of Dr. Scott

dated 22 October 1993 in which he reiterates his view that it would

have been impossible for the three suspects to have detonated a bomb

in the target area from the location where they were shot using an ICOM

or any other conceivable concealable transmitter/aerial combination,

which he maintains must have been well-known to the authorities. He

also drew attention to the factor that the strength of a hand held

transmitter is severely attenuated when held close to the human body;

when transmitting it should be held well clear of the body with the

aerial as high as possible.

D.    Relevant domestic law and practice

169.  Article 2 of the Gibraltar Constitution provides:

      "2.(1) No person shall be deprived of his life intentionally save

      in execution of the sentence of a court in respect of a criminal

      offence of which he has been convicted.

      (2) A person shall not be regarded as having been deprived of his

      life in contravention of this section if he dies as a result of

      the use to such extent and in such circumstances as are permitted

      by law, of such force as is reasonably justifiable:

           a. for the defence of any person from violence or for the

           defence of property;

           b. in order to effect a lawful arrest or to prevent the

           escape of a person lawfully detained...

           d. in order to prevent the commission by that person of a

           criminal offence."

170.  The relevant domestic case-law establishes that the

reasonableness of the use of force has to be decided on the basis of

the facts which the user of the force honestly believed to exist: this

involves the subjective test as to what the user believed and an

objective test as to whether he had reasonable grounds for that belief.

Given that honest and reasonable belief, it must then be determined

whether it was reasonable to use the force in question in the

prevention of crime or to effect an arrest (see eg. Lynch v. Ministry

of Defence [1983] N.I. 216]

171.  The document annexed to the Operational Order entitled "Firearms-

rules of engagement" provided insofar as relevant:

      "General Rules

      1. Do not use more force than necessary to achieve your

      objective.

      2. If you use firearms you should do so with care for the safety

      of persons in the vicinity.

      3. Warning Before Firing

           (a)   A warning should, if practicable, be given before

                 opening fire. It should be as loud as possible and

                 must include an order to stop attacking and a

                 statement that fire will be opened if the orders are

                 not obeyed.

           (b)   You may fire without warning in circumstances where

                 the giving of a warning or any delay in firing could

                 lead to death or serious injury to a person whom it is

                 your duty to protect, or to yourself, or to another

                 member in your operation.

      4. Opening fire

           You may open fire against a hostage taker

           (a)   If he is using a firearm or any other weapon or

                 exploding a device and there is a danger that you or

                 any member involved in the operation, or a person whom

                 it is your duty to protect, may be killed or seriously

                 injured.

           (b)   If he is about to use a firearm or any other weapon or

                 about to explode an explosive device and his action is

                 likely to endanger life or cause serious injury to you

                 or another member involved in the operation, or any

                 person whom it is your duty to protect...

      5.   If he is in the course of placing an explosive charge in or

           near any vehicle, ship, building or installation which, if

           exploded, would endanger life or cause serious injury to

           you or another member involved in the operation or to any

           person whom it is your duty to protect and there is no

           other way to protect those in danger..."

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

172.  The Commission declared admissible the applicants' complaints

concerning the killing of Daniel McCann, Mairead Farrell and

Sean Savage.

B.    Point at issue

173.  The issue to be determined is whether there has been a violation

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

C.    Evaluation of the evidence

174.  Both parties have made submissions to the Commission with regard

to the approach which it should adopt in its task of assessing the

factual elements relevant to its determination of the Convention

issues.

175.  The Government have submitted that the Inquest which took place

in Gibraltar constituted an exhaustive fact-finding procedure and that

the verdicts of the jury must be taken as, impliedly, containing a

number of crucial findings of fact on which the Commission should base

its examination of the Convention issues.  The Commission notes however

that the verdicts of the jury consisted solely of findings of lawful

killings (see para. 155 above). The nature of a such jury verdict

renders it impossible to deduce which facts were given weight or

discounted. Further, the jury were not addressing themselves directly

to the issues arising in the present case but to the question whether

the use of lethal force was lawful in terms of the applicable domestic

law.

176.  Even assuming that the Inquest had, expressly or impliedly, made

findings of fact with reference to the events under consideration, the

Convention organs in the exercise of their supervisory jurisdiction are

not in any formal sense bound by the domestic decisions but must

examine the circumstances of a case as a whole to determine whether the

justifications adduced are compatible with the provisions of the

Convention (see eg. Colak v. Germany, Comm. Report 6.10.87, Eur. Court

H.R., Series A no.147 p. 17, para. 144).

177.  The applicants have requested the Commission to carry out its own

investigation into the disputed facts of the case and have made a

number of suggestions, including the proposal that the Commission hear

witnesses and that it address questions to the Governments of Spain and

Belgium to clarify certain matters in dispute. The Commission notes

that a hearing would involve the questioning of witnesses about events

which took place in March 1988, six years previously. The Commission

considers it unlikely that after the passage of time the accounts of

witnesses would be rendered less divergent. It is aware also that at

least one of the witnesses, Soldier F who has died, is no longer

available. It therefore does not consider that a hearing of witnesses

would aid it in its task.

178.  As regards the possibility of seeking information from the

Belgian Government (with regard to the alleged find of IRA explosive

devices in Brussels on 21 January 1988) and from the Government of

Spain (as regards the surveillance of the suspects in Spain), the

Commission considers that these matters, while perhaps of background

interest, are not necessary to its formulating an opinion in this case.

179.  The Commission has proceeded therefore to examine the case on the

basis of the observations and documents submitted by the parties,

including, in particular, the transcript of the Inquest held in

Gibraltar. While it is aware that it has not had the advantage of

seeing the demeanour and comportment of the witnesses as they gave

their testimony and were subject to extensive cross-examination, it

considers that it is nonetheless possible to identify the areas of

evidence which were significantly consistent (or otherwise) or which

were unchallenged. Its opinion as to the evaluation of evidence

concerning the factual matters which are in dispute or the subject of

conflicting material is given below where it is relevant and necessary

to the examination of the Convention issues in question.

D.    Article 2 (Art. 2) of the Convention

180.  Article 2 (Art. 2) of the Convention provides:

      "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."

E.    General considerations

181.  The interpretation of this Article (Art. 2) must be guided by the

recognition that it is one of the most important rights in the

Convention, from which no derogation is possible. The situations where

deprivation of life may be justified are exhaustive and must be

narrowly interpreted.

182.  The use of force which has resulted in a deprivation of life must

be shown to have been "absolutely necessary" for one of purposes set

out in the second paragraph. In the context of the other provisions of

the Convention, the test of necessity includes an assessment as to

whether the interference with the Convention right in question was

proportionate to the legitimate aim pursued. In the context of

Article 2 (Art. 2) and the use of lethal force, the qualification of

the word "necessary" by the adverb "absolutely" indicates that a

stricter and more compelling test of necessity must be applied.

183.  In a case concerning the use of plastic baton rounds in the

course of a civil disturbance in Northern Ireland which resulted in the

death of a 13 year old boy, the Commission formulated a test of strict

proportionality:

      "...Article 2 para. 2 (Art. 2-2) permits the use of force for the

      purposes enumerated in sub-paragraphs (a), (b) and (c) subject

      to the requirement that the force used is strictly proportionate

      to the achievement of the permitted purpose. In assessing whether

      the use of force is strictly proportionate, regard must be had

      to the nature of the aim pursued, the dangers to life and limb

      inherent in the situation and the degree of risk that the force

      employed might result in loss of life. The Commission's

      examination must have due regard to all the relevant

      circumstances surrounding the loss of life." (No. 10444/82,

      Dec. 10.7.84, D.R. 39 p. 162, at p. 169-171)

184.  Article 2 (Art. 2) may, as other articles of the Convention, give

rise to positive obligations on the part of the State (No. 9438/81,

Dec. 28.2.83, D.R. 32 p. 190 at p. 200).

F.    The present case

185.  The applicants submit that the killing of McCann, Farrell and

Savage discloses a violation of Article 2 (Art. 2) of the Convention

on a number of bases. They put forward the following propositions:

      1. Article 2 (Art. 2) imposes a positive duty on State parties

      to adopt clear and detailed rules  on the use of lethal force

      which should strictly control and limit its use in accordance

      with the Convention provision. The relevant domestic law is vague

      and general and therefore in itself in violation of Article 2

      (Art. 2).

      2. Article 2 (Art. 2) should be interpreted as including a

      procedural element, namely, the provision of an effective

      procedure after the event for establishing the facts. They submit

      that the procedures in this case were inadequate.

      3. Article 2 (Art. 2) requires States to exercise strict

      operational control over the use of lethal force. There is a

      violation in the way in which the operation was planned and

      executed which indicates at least serious negligence, if not

      actual premeditation, in respect of the killings which took

      place.

186.  The Commission has examined the first two propositions in the

context of the requirement of "protected by law" under the first

paragraph (see paras. 187-191) and the third under the compatibility

of the operation with the requirements of the second paragraph (see

paras. 202-250).

G.    "Everyone's right to life shall be protected by law"

187.  The first sentence of Article 2 para. 1 (Art. 2-1) imposes a

positive obligation on Contracting Parties. It requires a State not

only to refrain from taking life "intentionally" but also to take

appropriate steps to safeguard life (see eg. No. 7154/75, Dec. 12.7.78,

D.R. 14 p. 31). The Commission agrees with the applicants that this

requires that the domestic law of a State regulates, in a manner

compatible with the rule of law, the permissible use of lethal force

by its agents.

188.  In the present case, the applicable law was set out in Article 2

(Art. 2) of the Gibraltar Constitution. This imposes a general

prohibition on intentional killing save in defined circumstances,

including the defence of persons from violence. The standard applied

as to the justified exceptions is one of reasonable necessity. As the

applicants point out this differs from the standard of "absolute

necessity" imposed by the Convention. The Government argue that the

difference is more apparent than real since the test of reasonable

necessity is strictly applied in practice and in assessing that

necessity, consideration is given to the proportionality of the use of

force to the particular circumstances of the case.

189.  The Convention however does not in general impose on Contracting

States any given manner for ensuring the effective implementation of

its provisions (cf. Eur. Court H.R., the Swedish Engine Drivers' Union

judgment of 6 February 1976, Series A no. 20 p. 18, para. 50). The

Commission does not consider therefore that it can interpret Article 2

(Art. 2) as requiring an identical formulation in domestic law. It must

be sufficient that the substance of the Convention right is protected.

190.  The Commission finds on examination of the applicable law in this

case no indication that it fails to offer the requisite general

prohibition against the arbitrary use of lethal force by state

authorities. Whether or not in a particular case, the application of

a test of reasonable necessity permitted a use of lethal force in

violation of the Convention could only be determined by an examination

of all the circumstances of a particular case. The Commission recalls

in this regard that in the case of Kelly v. the United Kingdom

(No.17579/90, Dec. 13.1.93, D.R. 74 p. 139), which concerned the

killing of a teenage joyrider by soldiers at a roadblock in Belfast,

it examined the reasoning of the domestic court which had applied the

test of reasonable necessity and found that in the circumstances of the

case the use of force had been justified also under the terms of

Article 2 para. 2 (Art. 2-2).

191.  As regards the applicants' second proposition (see para. 185

above), the Commission considers that procedural protection, to the

extent that it may be relevant under Article 2 (Art. 2), must be

regarded as an aspect of the criterion "protected by law". A general

legal prohibition of arbitrary killing by state authorities would be

rendered nugatory if, in practice, there was no mechanism for reviewing

the action of the State agents. Article 2 (Art. 2) cannot be

interpreted however as including a requirement of access to court in

the determination of any resulting civil rights disputes or an

effective remedy before the Courts where there is a complaint of

deprivation of life, since these matters would rather fall to be

considered under Articles 6 (Art. 6) and 13 (Art. 13) of the Convention

which have not been invoked by the applicants in the present case.

192.  The Commission considers however that there is force in the

applicants' submissions as to the necessity for an ex post facto review

of the circumstances of a killing. It must often be the case where

State agents have used lethal force against an individual that the

factual circumstances and the motivation for the killing lie largely,

if not wholly, within the knowledge of the State authorities and that

the victim's families are unlikely to be in a position to assess

whether the use of force was in fact justified. It is essential both

for the relatives and for public confidence in the administration of

justice and in the State's adherence to the principles of the rule of

law that a killing by the State is subject to some form of open and

objective oversight.

193.  Having regard therefore to the necessity of ensuring the

effective protection of the rights guaranteed under the Convention,

which takes on added importance in the context of the right to life,

the Commission finds that the obligation imposed on the State that

everyone's right to life shall be "protected by law" may include a

procedural aspect. This includes the minimum requirement of a mechanism

whereby the circumstances of a deprivation of life by the agents of a

state may receive public and independent scrutiny. The nature and

degree of scrutiny which satisfies this minimum threshold must, in the

Commmission's view, depend on the circumstances of the particular case.

There may be cases where the facts surrounding a deprivation of life

are clear and undisputed and the subsequent inquisitorial examination

may legitimately be reduced to a minimum formality. But equally, there

may be other cases, where a victim dies in circumstances which are

unclear, in which event the lack of any effective procedure to

investigate the cause of the deprivation of life could by itself raise

an issue under Article 2 (Art. 2) of the Convention.

194.  The Commmission has examined whether the facts of this case

disclose an absence of procedural safeguards against  arbitrary

deprivation of life. The Commission notes that an inquest was held in

Gibraltar into the deaths of McCann, Farrell and Savage.

195.  The applicants have submitted that the inquest procedure was

inadequate for, inter alia, the following reasons. They complain of the

shortcomings of the post incident investigation, in particular, the

defective scene of crimes and post mortem procedures and a failure by

the police to locate witnesses. They complain that the Coroner sat with

a jury which, as it was drawn from a garrison town with close ties to

the military,  rendered a fair hearing unlikely. They  complain that

the scope of the Inquest was restricted by the public interest

certificates issued by the Government and that the Coroner erred in

directing the jury that they should not deliver an open verdict. They

were also at a distinct disadvantage in the proceedings since they were

without legal aid, had no access to the statements of the important

Crown witnesses and were without resources to pay for copies of the

daily transcript of the proceedings.

196.  The Commission notes that the applicants' complaints as to the

police handling of the investigation in the aftermath of the incident

are not without foundation (see paras. 126-7 and 134). The failure to

cordon off the scenes of the incidents and preserve them for proper

record was however a result of the unexpectedness of events and the

lack of available and experienced police personnel rather than any

sinister or improper motivation. While it may have been rendered  more

difficult to establish certain details of the events, the Commission

does not find that it reveals such gross misconduct as would vitiate

the overall investigation of the killings. It does not find

substantiated the allegation that the police failed properly to make

efforts to locate witnesses. Chief Inspector Correa instituted  door

to door enquiries and appeals were made to the public to provide

information. It appears however that the public was reluctant to come

forward possibly because of the intense publicity aroused by the affair

in the media.

197.  As regards the Inquest, the Commission is impressed by the

thoroughness of its procedure. It lasted 19 days, involved the hearing

in public of 79 witnesses who were subject to extensive examination and

sometimes rigorous cross-examination. The applicants' objections to the

use of the jury, the direction of the Coroner, the limitation on

questions imposed by the certificates and the procedural inequalities

experienced by the applicants do not, in the Commission's view, deprive

the Inquest of its character as an effective independent and public

review mechanism.

198.  There is no evidence that jurors were biassed. While the

applicants complain that they suffered from procedural difficulties

(see para. 195), they were in fact represented most ably and they had

access to a copy of the transcript.

199.  Further, the Commission finds that the certificates did not

prevent the factual circumstances of the killings being investigated

in their most immediate and relevant aspects. In particular, the

soldiers, police officers and members of the security services involved

in and in command of the operation in Gibraltar gave evidence. While

the certificates may have prevented the applicant's representative from

exploring, in particular, the planning of the operation at its earliest

stages, the Commission does not consider that this prevented the issue

as to the possible premeditation of the killings being raised.

200.  The Commission rejects the applicants' contention that the

Inquest should have furnished an exhaustive fact-finding exercise.

Neither does it find that the alleged errors of law by the Coroner are

material in this context. In the circumstances of this case, the

Inquest as it was conducted subjected the actions of the agents of the

State to extensive, independent and  highly public scrutiny and thereby

provided sufficient procedural safeguards for the purposes of Article 2

(Art. 2) of the Convention.

201.  The Commission finds that there has accordingly been no failure

to comply with the first sentence of Article 2 para. 1 (Art. 2-1) of

the Convention.

H.    Requirements of Article 2 para. 2 (Art. 2-2)

202.  Since it is not disputed that the killings in this case

constituted an intentional deprivation of life within the meaning of

the second sentence of the first paragraph, the Commission has

proceeded to examine the applicants' third proposition under the second

paragraph of Article 2 (Art. 2-2).

203.  The Government have contended that the deprivation of life to

which the application relates was justified under the second paragraph

of Article 2 (Art. 2-2) as resulting from the use of force which was

no more than absolutely necessary in defence of the people in Gibraltar

from unlawful violence.

204.  The applicants submit that the use of force was not absolutely

necessary for that purpose. They argue as follows:

i. there was a premeditated plan, to which the Soldiers A, B, C and D

were party, to kill the three suspects when they arrived in Gibraltar;

or

ii. the operation was deliberately planned in such a way that it was

inevitable that the soldiers, in light of their training and

information supplied to them, would kill the three suspects; or

iii. the planning and conduct of the operation disclosed reckless

disregard for, or negligence in respect of, the suspects' right to

life.

205.  Before embarking on its examination of the issues raised, the

Commission would make two observations.

206.  First, a policy of shooting to kill terrorist suspects in

preference to the inconvenience of resorting to the procedures of

criminal justice would be in flagrant violation of the rights

guaranteed under the Convention. A terrorist who is suspected of having

committed or of intending to commit an act of violence continues to

enjoy the protection of the right to life guaranteed by Article 2

(Art. 2) of the Convention and the right to a fair trial in the

determination of any criminal charges brought against him or her as

guaranteed under Article 6 (Art. 6) of the Convention.

207.  Second, the Commission recognises that the United Kingdom owed

a responsibility not only to the three terrorist suspects in this case

but was also under a positive obligation with respect to safeguarding

the lives of the people in Gibraltar.  The existence of any risk and

the extent of such risk to other persons must therefore be given

particular significance when assessing the necessity for the use of

lethal force in this case, and whether the action taken was strictly

proportionate to that risk.

i.    The conspiracy theory

208.  The applicants have alleged that the killing of the three

suspects was premeditated in that the authorities intended from the

beginning to have them ambushed and killed and that the SAS soldiers

were sent to Gibraltar to execute that design. In this respect, they

point to the fact that the three suspects were allowed to enter

Gibraltar unapprehended. They refer to the statement of Mr. Debelius

to the effect that the suspect car driven by Savage was followed by the

Spanish police and that the authorities in Gibraltar had prior warning

of his arrival in Gibraltar (see para. 163).

209. The applicants further contend that while the Government alleges

that everyone was acting in the honest and reasonable belief that there

was a bomb sitting in the car in the assembly area, no steps were taken

to neutralise the threat (ie. by unscrewing the aerial). Moreover, no

steps were taken to evacuate the area, people being allowed to walk

past the area freely for hours afterwards.

210.  The Government submit that the Coroner put the plot proposition

to the jury which impliedly must have rejected it in returning verdicts

of lawful killing. They deny the allegation that the authorities were

aware of Savage's arrival in Gibraltar or that he had been subject of

surveillance by the Spanish police, relying on the statement of Chief

Inspector Valenzuela (see para. 161).

211.  As regards the allegation of surveillance of Savage prior to his

arrival in Gibraltar, the Commission finds it unnecessary to decide

which version, if either, is the more accurate. The issue is relevant

to the allegation by the applicants that the authorities in Gibraltar

made no real effort to stop the terrorists on arrival at the border but

had intended throughout to allow them to enter for the purposes of

ambushing them within Gibraltar.

212.  The Commission recalls that while there was surveillance on both

sides of the border, the nature of this surveillance was somewhat

lacking in thoroughness (see paras. 52-55). The Spanish immigration

officers were apparently only scrutinising cars which contained two men

and one woman. It does not appear that the known aliases of the

suspects were passed on to those on duty at the Spanish customs post,

since if they were it is remarkable that the suspects were not spotted.

On the Gibraltar side, no effort was made to slow down the line of cars

or to look thoroughly at passports. This would appear to have been a

deliberate policy at least on the part of the authorities in Gibraltar

who placed more importance on avoiding arousing the suspicions of the

three suspects.

213.  The Commission notes that arrest policy formulated by the

Advisory Group envisaged the arrival of the suspect car bomb with or

without warning and that an arrest should not be made until all three

members of the ASU were present and there was sufficient evidence (in

the form of a car bomb) to secure convictions of the suspects (see

para. 57). This approach was supported by Chief Inspector Ullger who

gave his opinion that allowing the suspects to enter was the only way

to ensure the success of the operation (see para. 54). The Commission

finds therefore that the suspects were effectively to be allowed to

enter Gibraltar to be picked up by the surveillance operatives in place

in strategic locations for that purpose. This cannot however constitute

in itself evidence of a predetermined plan to execute the suspects.

214.  The Commission notes that Soldiers A, B, C, D, E and F

consistently denied that they were under instructions to carry out a

summary execution either expressly or on the basis of "a nod or a wink"

(see para. 153). As the Coroner pointed out, it is difficult to

envisage that if there had been such an intention the Gibraltar police

could have been unaware of it.

215.  The Commission is unconvinced also by the lack of any immediate

steps taken in regard to the suspected car bomb. Tampering with the

aerial might have neutralised a remote control device, had there been

one, but not unreasonably could have been regarded as carrying with it

its own risks. Similarly, if the car was not finally regarded a suspect

bomb until Soldier G returned from his examination at 15.25 (see

para. 73), the delay in implementing the evacuation plan until after

16.00 may be explained by the manpower difficulties facing the

Gibraltar police who had at the same time unexpectedly to cope with

taking control of the scenes of two shooting incidents.

216.  The Commission concludes that there is no evidence to support the

applicants' contention of a premeditated design to kill McCann, Farrell

and Savage.

ii.   Conduct of the operation

217.   The Commission has considered first the actions of the soldiers

in order to determine whether in the circumstances they used

disproportionate and excessive force to achieve the alleged aim of

defending persons from unlawful violence. It has then examined whether

the United Kingdom failed to plan and control the operation (whether

deliberately, recklessly or carelessly) in such a way as to minimise

the need for the use of lethal force by the soldiers.

a.    The actions of Soldiers A, B, C and D

218.  The applicants refer to the fact that the suspects were not armed

or carrying any device and that from their own observation, the

soldiers should have been aware of that. They submit that on the

soldiers' own accounts no intelligible warning was given to the

suspects before they opened fire and no attempt made to overpower the

suspects physically or disable them despite the soldiers' very close

proximity to them - as little as 3 feet in the case of Farrell. In

particular, they emphasise the devastating nature of the soldiers'

reaction to what amounted to a change of expression from McCann, a

movement towards her handbag by Farrell and move of the hand by Savage.

The suspects were as a result riddled with bullets as they were falling

and lying on the ground. This, the applicants submit, cannot be

regarded as being a strictly proportionate response.

219.  The Government submit that the soldiers held the honest and

reasonable belief that the car in the assembly area contained a car

bomb that could be detonated by a remote control device, that the three

suspects were carrying a remote control device, that the bomb could be

detonated by the suspects at the point at which they proposed to carry

out the arrest and that the suspects before they were shot were making

movements as if they were attempting to activate the remote control

device. The use of lethal force was consequently a necessary response

by the soldiers to prevent the disastrous consequences of an explosion

in the centre of Gibraltar.

220.  As regards the factual circumstances surrounding the shooting,

the Commission has given careful examination to the evidence of the

soldiers and the witnesses.

221.  In respect of the shooting of McCann and Farrell, the Commission

is of the opinion that in the general the version given by the Soldiers

A and B corresponds to the event as it must have happened. While there

are a number of discrepancies between the soldiers' accounts and those

of the other witnesses, in particular, whether Farrell's handbag was

carried under her left or right arm, the Commission considers that

these are insufficient to discredit the soldiers' evidence. Further the

Commission finds that in a number of important respects the soldiers'

accounts receive corroboration. Four witnesses, for example, recalled

hearing a warning shout. While in relation to the movements made by the

suspects which the soldiers gave as their reason for opening fire,

Officer P supported their evidence in recalling that McCann and Farrell

had made movements which he would have regarded as dangerous in their

place. Officer Q and Police Constable Parody also confirmed that

Farrell made a move towards her handbag (see paras. 98-108).

222.  The Commission finds no convincing support for any allegation

that the soldiers shot McCann and Farrell when they were attempting to

surrender or when they were lying on the ground. This is denied by the

soldiers and by a number of other witnesses. The soldiers accept that

they continued shooting as the suspects were falling and other

witnesses confirmed this. This was also the explanation given to the

wounds by the pathologists (see paras. 141-142). It is possible that

those witnesses who believed that they saw the suspects shot on the

ground were confusing the sounds of the subsequent shooting of Savage

nearby with scene at the Shell garage immediately after the shooting

of McCann and Farrell when policemen from the police car jumped the

barrier and the plainclothes policemen crouched near the bodies, one

of them briefly having a gun in his hand at the time (see

paras. 96-97).

223.  The Commission finds however that the soldiers carried out the

shooting from close proximity. The forensic evidence indicates a

distance of as little as 3 feet in the case of Farrell (see para. 144).

224.  The Commission concludes therefore that Farrell and McCann were

shot by Soldiers A and B at close range after the two suspects had made

what appeared to the soldiers to be threatening movements. They were

shot as they fell to the ground but not when they were lying on the

ground.

225.  As regards the shooting of Savage, it was in relation to this

incident that arose the shocking allegation that a soldier had fired

into a suspect's body while standing over him with a foot on his

throat. The source of this claim appears to have been the written

statement made by Mr. Kenneth Asquez which came into the possession of

Thames Television. In view of his later retraction at the Inquest, it

is impossible to give his original statement any weight, unsupported

as it is by any other witness (see para. 119).

226.  The Commission notes that the evidence of Mr. Bullock appears to

suggest that Soldiers C and D watched the scene at the Shell garage

from the corner of the alleyway before moving in pursuit of Savage (see

para. 121). Mr. Jerome Cruz also saw persons watching from that corner.

Since however there were several members of the surveillance team at

various times in that area, the Commission considers that this in

itself does not contradict the other accounts. Witnesses H, I and J

were in the area and H and I assisted the soldiers in pointing out the

location of Savage. The persons seen watching at the corner and then

following after Savage could have been Witnesses H and I who stated

that they did exactly that (see paras. 115-117).

227.  Whether the soldiers did watch the first shooting incident would

appear to be relevant in that it contradicts their version of being

unaware of the prior shooting and thereby implies a certain

premeditation in the action which they took in bringing down Savage.

228.  However, the general tenor of the evidence of the witnesses is

that there was very little time - a matter of seconds - between the

shooting in the Shell garage and the shooting at the Landport tunnel.

Further it was probably either the sound of the police siren or the

sound of the shooting at the Shell garage, or indeed both, which caused

Savage to turn round to face the soldiers who were by then behind him

in the alleyway. It does not therefore appear to the Commission to be

likely that  Soldiers C and D witnessed the shooting of McCann and

Farrell before proceeding in pursuit of Savage.

229.  In conclusion, the Commission finds that there is insufficient

material to rebut the soldiers' version of the shooting which is in

important particulars supported. Witnesses H and J saw Savage spin

round to face the soldiers in apparent response to the sound of a

police siren and/or gunfire from behind though both turned away without

witnessing the immediate aftermath. However, even on their own account,

Soldiers C and D continued shooting until Savage was almost on the

ground and, according to one witness I, one or two shots were fired

while Savage was in fact on the ground. They also opened fire from

close proximity, approximately 4-6 feet (paras. 115-117 and 144).

230.  The shooting however must have been over in a few seconds:

recollection of the timing of events in relation to each other must be

particularly problematic in this context. The Commission finds

therefore that Savage was shot at close range until he hit the ground

and probably in the instants as or after he had hit the ground. This

conclusion is supported by the pathologists' evidence at the subsequent

Inquest (see para. 143).

231.  The Commission is satisfied, on the basis of their evidence at

the Inquest, that Soldiers A, B, C and D opened fire with the purpose

of preventing the threat of detonation of a car bomb in the centre of

Gibraltar by suspects who were known to them to be terrorists with a

history of previous involvement with explosives. With regard to their

belief that the suspects were carrying devices, the Commission recalls

that Soldier C observed an object bulging in Savage's pocket and that

the applicants concede that Farrell's handbag could have contained a

device. While McCann was dressed in jeans and T-shirt, it appears that

the soldiers were also lightly clad yet carrying both a gun and a radio

concealed on their persons. Having regard to the information given to

them, in particular by their commander Soldier E, the soldiers' belief

as to the existence of a car bomb and the possibility of detonation

cannot be said to have been perverse or unreasonable (see paras. 43 and

47).

232.  A disturbing aspect of this case however is the fact that the

response of the four soldiers was to shoot to kill. This emerges from

their testimony and was the conclusion of the Coroner in his summing-up

to the jury. The soldiers made no attempt to overpower physically or

disable the suspects since this was regarded as posing too much of a

risk. It would have taken time even at a close distance to seize and

immobilise a person. A person who was wounded also remained capable of

the movement necessary to push a button device. On this reasoning, the

soldiers considered that it was logical and necessary to continue

firing until the suspects were rendered incapable of detonating a

device. While the soldiers denied deliberately firing at the suspects

on the ground, the Commission has found that in respect of Savage it

is probable that he was hit by bullets in the instant as or after he

fell to the ground (see para. 230).

233.  The Commission finds nonetheless that given the soldiers'

perception of the risk to the lives of the people of Gibraltar - that

a car bomb could be and was about to be detonated by the activation of

a remote control device - the shooting  of the three suspects can be

considered as absolutely necessary for the legitimate aim of the

defence of others from unlawful violence. The Commission has noted that

if a bomb of the dimensions found in Marbella had been brought in and

detonated on 6 March there could have been a devastating loss of life.

b.    Operational responsibility

234.  Notwithstanding the conclusion above as to the necessity of the

use of lethal force from the perspective of the soldiers, the

Commission is of the opinion that the United Kingdom bears a wider

responsibility for the way in which the operation was planned and

executed. This case may be distinguished from the Kelly case (see

para. 190) where the situation at the roadblock developed without any

warning. In the present case, the authorities had been aware of the

threat posed by the ASU and had been planning for months their

response.

235.  In these circumstances, the use of lethal force would be rendered

disproportionate if the authorities failed, whether deliberately or

through lack of proper care, to take steps which would have avoided the

deprivation of life of the suspects without putting the lives of others

at risk.

236.  The applicants submit that the way in which the authorities

planned and carried out the operation rendered inevitable the use of

lethal force by the soldiers in circumstances where it was or ought to

have been known that there was no actual risk to the people in

Gibraltar. In particular they criticise the erroneous assessments and

assumptions made during the operation and the way in which they were

relied on or distorted to provide a basis for the actions taken. These

may be summarised as follows:

- the assessment that the suspects would not use a blocking car or

enter Gibraltar prior to the intended date of the attack on a

reconnaissance or dummy run;

- the assessment that the car in the assembly area contained a bomb;

- the assessment that the applicants were likely to bring in an

explosive device which would be detonated by remote control;

- the assessment that the applicants would be likely (all three of

them) to be carrying a device with them prior to the date of the

attack;

- the assessment that if faced with the threat of arrest they would

attempt to detonate the device;

- the assumption that the device would be small enough to be concealed

from the observation of the soldiers;

- the assumption that the device could be detonated by the pressing of

one button;

- the assumption that the device could be capable of detonating a bomb

from a location out of the line of sight.

237.  The Government refer to the fact that in the most relevant

respects the intelligence assessment was accurate: namely, that an ASU

consisting of McCann, Farrell and Savage intended to bring a car bomb

into Gibraltar to carry out an attack on the military parade on

8 March 1988. They submit, as Witness O did at the Inquest, that an

intelligence assessment of a suspected terrorist attack must inevitably

be based on incomplete information. Having regard to the existence of

a genuine and very serious risk, they contend that the assessments as

to the bomb being in place and the possibility of a detonation were not

in the circumstances either unreasonable or irresponsible.

238.  The Commission has examined the applicants' arguments. It notes

that the applicants point out that in respect of a terrorist attack on

a specified event in Gibraltar a timer device was more logical. To

detonate a device in line of sight from, for example, the Rock behind,

would leave the terrorist trapped with little chance of escape. The

reason given for expecting a remote control device - that in the

aftermath of the Enniskillen tragedy, where an IRA bomb activated by

a timer device killed 12 civilians, the IRA wished to avoid adverse

public reaction - is stated by the applicants to credit the IRA with

scruples about killing civilians which is unwarranted. It also

contradicts the assessment that if apprehended the terrorists would

nonetheless proceed to detonate the bomb regardless of civilian

casualties.

239.  As shown by the car bomb found in Marbella, the ASU was intending

to use a timer rather than a remote control device. As to whether those

involved in the operation were justified in expecting a remote control

device, the Commission notes that a difference in emphasis is

discernible between the groups involved in the operation as regards

this aspect of the intelligence assessment.

240.  The police recall a wide range of discussion with a lack of

emphasis though with some reference to the remote control device as

more likely. The Commissioner of Police for example took the attitude

that they should be prepared to deal with either. According to the

recollection of the intelligence officers, the intelligence assessment

took into account a timer but considered the remote control device more

likely. As regards the soldiers, they unanimously discount any

discussion of a timer but are categorical in expecting a "button job".

It is perhaps of relevance that some at least of the soldiers received

prior briefings in London and that before and after the briefing on

5 March there is reference to Soldiers A-D having had briefings or

discussions or daily updates from their tactical commander Soldier E.

Their recollection might therefore be coloured by the emphasis of

earlier or subsequent information (paras. 41-43).

241.  The Commission finds that a timer must in all probability have

been mentioned at the Commissioner's operational briefing. For whatever

reason however, it was not a factor which was taken into account in the

soldiers' view of the operation. Nonetheless, it seems to the

Commission that since the authorities could not know with any certainty

what the ASU's intentions were, it was not irresponsible to assume that

a remote control device could be used and once that possibility was

admitted, the risk had to be taken into account.

242.  As to the assessment whether the car in the assembly area

contained a bomb, the Commission notes that Soldier G 's expertise was

limited and that at most he gave the car a cursory visual inspection

which revealed nothing more suspicious than an aerial which was rusty.

However the conclusion drawn that it was a suspect car bomb meant that

it had to be regarded as suspect until proper examination disclosed

otherwise. Since the car had been driven into Gibraltar by Savage who

was the known bomb maker, the Commission considers that it can only

have been prudent to regard the car with serious concern.

243.  In respect of the assumptions that the suspects were carrying

detonating devices which were concealable and which could have been

activated by the pressing of one button, the Commission has had the

benefit of the submissions of the parties, the transcript of the

evidence given by the experts at the Inquest and sight also of a ICOM

device with encoder attached supplied by the Government and a simulated

device provided by the applicants.

244.  The Commission agrees with the applicants that it was unlikely

that the suspects would have all been carrying a remote control device.

However it was always possible that one would and the soldiers would

not necessarily have known which one it would have been. While the

transmitter and encoder of the size and dimensions of the devices

supplied by the parties could not have been easily concealed about the

person (see para. 165), it would not have been impossible (see also

para. 231).

245.  The evidence does indicate that generally a device could not be

detonated by merely pressing one button (see para. 149). However, if

the power switch and the switch on the encoder were activated, it would

only require the transmit button to be pressed. This would be

unlikely, the applicants submit, as it would cause the batteries to run

down and risk accidental detonation if the device was knocked. The

Government state that in the experience of the security services the

IRA have the practice of "hot-gluing" the various dials on the

transmitter so that the dials cannot be moved and a potential

malfunction from accidental re-setting be avoided. They submit that

while it would still be necessary to activate the power switches on the

transmitter and encoder they could and almost certainly would be

switched on prior to the terrorist entering the target area.  This

would appear to the Commission to be a possibility that could not be

discounted.

246.  The applicants have been adamant that it would not have in any

event been possible for the suspects, if they had wished to embark on

such an uncharacteristically suicidal action, to detonate the bomb from

where they were.  They refer to the topography of Gibraltar, the

numerous obstructions over the 1.4 km distance, the unsuitability of

the suspected aerial receiver and the tests carried out by Dr. Scott

on location in Gibraltar (see para. 149) The applicants have also made

submissions casting doubt on the reliability of Mr. Feraday's evidence

at the Inquest to the effect that the possibility of a detonation could

not be excluded. It is pointed out that his evidence at the Inquest

revealed limited expertise in the realm of radio communications and

though he has extensive experience, he has only technical not academic

qualifications (see also para. 168).

247.  The Commission recalls that Captain Edwards carried similar tests

albeit with differing equipment and received signals from the assembly

area at the Shell garage and from even further away (see para. 150).

The applicants point out that these tests take no account of the likely

use of an encoder and decoder which would not accept ambiguous signals

that might still be audible to the human ear. However, since the

authorities could not know what equipment might be employed by an ASU,

the Commission considers that the authorities' assumption that

detonation was possible from that area was not unjustified.

248.  The applicants have drawn the Commission's attention to the way

in which the assessments made as to the likelihood of a remote control

device being used and the suspicions existing as to the presence of a

car bomb in the assembly area were unjustifiably transformed into

certainties when passed on to the soldiers on the ground (see

paras. 73-77). It seems to the Commission however that, once the risk

was found to exist, the soldiers would necessarily have had to act on

that basis. The nature of the risk was such as to render irrelevant

consideration as to the degree of probability of that risk, ie. whether

detonation of a bomb was possible or highly  likely.

249.  In that context, the Commission recalls that a 64 kg explosive

device was found in Marbella in a car hired in the false name used by

Farrell. The report of the Spanish police indicates that the timers

were set for the time of the military parade in Gibraltar and that

ammunition appeared to have been packed round the device to give an

added shrapnel effect to the blast. As was stated at the Inquest, if

the terrorists had succeeded in exploding the bomb in the centre of

Gibraltar, it would have been one of the most devastating outrages

committed by the IRA.

250.  Having regard therefore to the possibility that the suspects had

brought in a car bomb on 6 March, which if detonated would have

occasioned the loss of many lives and the possibility that the suspects

could have been able to detonate it when confronted by the soldiers,

the Commission finds that the planning and execution of the operation

by the authorities does not disclose any deliberate design or lack of

proper care which might render the use of lethal force against McCann,

Farrell and Savage disproportionate to the aim of defending other

persons from unlawful violence. Consequently, the Commission is

satisfied that the deprivation of life  resulted from the use of force

that was no more than "absolutely necessary" for that purpose.

CONCLUSION

251.  The Commission concludes, by 11 votes to 6, that there has been

no violation of Article 2 (Art. 2) of the Convention.

Secretary to the Commission       President of the Commission

      (H.C. KRÜGER)                      (C.A. NØRGAARD)

                                                          Or. English

                 DISSENTING OPINION OF MR. S. TRECHSEL

                       JOINED BY MR. F. ERMACORA

      To my regret, I cannot share the opinion expressed by the

majority of the Commission.  I have come to the conclusion that in the

present case there has been a violation of Article 2.

      First, I am not convinced that the operation was prepared with

the necessary regard for the lives of McCann, Farrell and Savage.  I

find some merit in the applicants' criticisms insofar as I understand

them to allege that the soldiers were briefed in a slightly biased way

which created an atmosphere of extreme alarm leading to exaggerated

aggressiveness.  In addition, I take issue with the assumption that the

terrorists had placed the car bomb ready to explode at the pressure of

a button in the assembly area almost two full days before it was

intended to explode.

      Second, there was ample opportunity to carefully observe the

terrorists from all sides.  I cannot accept that it would not have been

possible to ascertain (and inform the soldiers accordingly) that McCann

was carrying neither a fire-arm nor a detonator.  With regard to

Savage, the same observation could be made with at least a high degree

of probability.  The only likely place for the rather bulky detonator

to be hidden was the bag which Farrell was carrying.  Thus, it would

have sufficed to prevent her from reaching into it.

      Third, as far as Savage is concerned, it must be assumed that the

shots fired at McCann and Farrell could be heard by him before he was

himself shot at.  Had he been in possession of a detonator, which could

explode a bomb at the touch of a button, he could have done so before

the soldiers started to attack him.  The fact that he had not was a

very strong indication indeed that the hypothesis under which the

soldiers opened fire was wrong.

      Finally, the decisive element is, in my view, the fact that the

use of firearms by the soldiers automatically involved shooting to

kill.  Thus, from the outset, they were not trained or instructed to

reflect whether it would not have been sufficient merely to wound their

targets.  However, in view of the very short distance between the

soldiers and the terrorists, I do not accept that this was not a highly

valid alternative, particularly with regard to Savage who was alone

against two soldiers who furthermore enjoyed the benefit of surprise.

In the specific circumstances of the present case and taking due

account of the dangerousness of the terrorists and the gravity of the

danger which they presented, I have formed the opinion that the way in

which the soldiers fired at McCann, Farrell and Savage constituted

excessive use of force and, therefore, that Article 2 of the Convention

has been violated.

                                                          Or. English

DISSENTING OPINION OF MRS. J. LIDDY JOINED BY MR. REFFI AND NOWICKI

1.    However abhorrent the murder and maiming planned by the I.R.A.,

the members of their so-called Active Service Unit (ASU) were entitled

to have their right to life respected by agents of the United Kingdom.

Mass-murderers have the same entitlement to the guarantees of the

Convention relating to the right to life, freedom from torture, the

right to a fair trial etc. as does the law-abiding person.

2.    A total of 27 shots were fired by soldiers with the intention of

killing three suspected bombers in Gibraltar on 6 March 1988 and the

suspects subsequently turned out to be neither armed nor in possession

of the means to detonate a bomb.  There was no bomb in Gibraltar.

3.    With hindsight, the force used was more than "absolutely

necessary ... in defence of persons from unlawful violence", as

required by Article 2 (2)(a) of the Convention.  The question is

whether, at the time, appropriate precautions and care would have

avoided an erroneous assessment that it was necessary.

4.    The operation to foil the suspected plot to detonate a bomb in

Gibraltar was planned from an undisclosed date prior to 4 March 1988,

apparently some months before that date.  It is therefore necessary to

examine each link in the chain of responsibility which led the four SAS

soldiers on the ground to open fire on the three suspects and to

continue firing until they were dead.  Specifically, how did it come

about that the four SAS soldiers thought that each of the three

suspects was carrying a detonating device which, at the press of one

button, would cause an explosion in the centre of Gibraltar, and how

seriously did those soldiers themselves take their responsibility under

the Convention as agents of the Government not to kill unless it was

absolutely necessary?

5.    Contracting States must bear responsibility for the way in which

operations which result in the deprivation of life are planned and

executed.  In the present case the authorities had been aware of the

threat posed by the so-called ASU and had been planning their response

apparently for months.  In these circumstances, the use of lethal force

would be rendered disproportionate if a Contracting State failed,

whether deliberately or through lack of proper care, to take steps

which would have avoided the deprivation of life of the suspects

without putting the lives of others at risk.

6.    I note that, in employing in the intended arrest operation SAS

soldiers, who are trained when they open fire to do so to kill (see

para. 112 of the Report), and in sending them out with the belief that

the suspects would and could detonate a bomb by the mere pressing of

a button, there must have been an inherently high probability that the

operation would result in the use of lethal force.  In this regard, I

recall that the document signed by the Commissioner expressly referred

to the military option including the use of lethal force.  Moreover,

on a question put by the jury, Soldier E agreed 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.  In light of this, the authorities owed a

particular duty of care with regard to the information and instructions

which were supplied to the soldiers.

7.    At paragraphs 236 and 237 the majority have summarised the

parties' relevant submissions, and at paragraphs 238 to 241, the

majority address the first major question:  why was it assumed that

there would be a remote control device rather than the more likely use

of a timer?  The majority have rightly pointed to the contradiction

between saying on the one hand that the IRA would use a timer to avoid

civilian casualties and, on the other hand, that the IRA would detonate

a bomb if apprehended regardless of civilian casualties.  The majority

have nonetheless concluded that it was not irresponsible to assume that

a remote controlled device could be used.  Thus far, I agree.  But the

four SAS soldiers said they were certain that a remote controlled

device would be used.  They, who were responsible in domestic law for

the ultimate decision as to whether to shoot to kill, failed therefore

to allow for the possibility (and fact) that the so-called ASU did not

have the means to detonate any bomb.  Their briefing was inadequate.

This connotes a degree of carelessness, serious in the circumstances.

8.    At paragraph 242 the majority consider the erroneous assessment

that the car in the assembly area contained a bomb.  They note that it

was considered suspect after a cursory visual examination which

revealed nothing more suspicious than a rusty aerial.  However, at no

stage was it considered established by soldier G that there was a bomb

in the car.  Yet, the four SAS soldiers, A, B, C and D were consistent

in maintaining that they had been informed by E over the radio that

there was definitely a bomb in place.  They who were responsible in

domestic law for the ultimate decision as to whether to shoot to kill,

failed therefore to allow for the possibility (and fact ) that there

was no bomb in Gibraltar.  The information given to them was misleading

and inaccurate.  This connotes a serious degree of carelessness

9.    At paragraph 244 the majority consider the assumption that a

detonating device would be concealable on the persons of the suspects

and conclude that it would not have been impossible.  The sample

transmitter and encoder supplied by the Government to the Commission

were, respectively, 18 cm x 6.5 cm x 3.7 cm and 8 cm x 9 cm x 3 cm,

with an aerial 18 cm long.  I have inserted this bulky and heavy object

into a pocket on a rather heavy jacket and profoundly disagree with the

conclusion of the majority.  The object dragged down my pocket and

obtruded upwards from it in a highly ostensible fashion.  I cannot see

how the two male suspects, dressed as they were, could have hidden it,

although I accept that it could have been hidden in a sturdy handbag

of the requisite size.  The Government allege that the soldiers who

were also lightly clad hid a gun and radio on their persons.  However,

two of the eye-witnesses noticed these guns which the soldiers had

placed in the rear waistband of their trousers.

10.   The soldiers do not appear to have been given any information

about the likely size of the device beyond that it would be of a size

which could be concealed.  Nor were they instructed to attempt to

verify by observation whether a suspect was carrying a device.  The

soldiers, for their part, do not appear to have considered that they

had any responsibility to ask to see the likely size of a device or to

assess the size of any bulges or note the absence thereof.  These

omissions are inexplicable in the context of an operation where the use

of lethal force was foreseen in writing.

11.   At paragraph 245 the majority consider the assumption that a

detonating device could be activated at the pressing of a single button

and conclude that this was a possibility that could not be discounted,

if the device was present.  However since the attack was not expected

until Tuesday 8 March and the assessment was that the IRA wished to

avoid indiscriminate civilian deaths there appears no reason why the

suspects should be carrying a pre-set device, or indeed any device with

them on Sunday 6 March.

12.   Moreover there is a fundamental inconsistency between, on the one

hand, the decision to shoot to kill for fear that the IRA were about

to embark on an uncharacteristically suicidal action which would cause

massive loss of life and, on the other hand, the lack of concern on the

part of all the soldiers that any one of the 27 bullets fired would

strike the button, thereby detonating a bomb, or that any of the

3 bodies when falling to the ground would cause the button to make

contact with the corner of the pavement, with the same tragic result.

The soldiers decided to shoot and to continue shooting until the

suspects were dead because each of the three suspects made movements.

Those movements were the change of expression on the part of a man who

turns around to find he is being scrutinised followed by the movement

of a hand, the instinctive movement of a woman to clutch her bag closer

to her on being startled in the street and the moving of hands by a man

who turns around on hearing gunfire to find himself faced by two armed

men.  The soldiers failed to allow for innocent movements and

erroneously assessed those movements as dangerous.  Their reaction in

itself, on the basis of their own erroneous assessment, risked

activation of any detonator as a direct result of their bullets.  This

connotes a degree of recklessness.

13.   There are other major questions left unanswered.  The possibility

that on Sunday 6 March the car which was driven in was a blocking car

to ensure parking space or that the so-called ASU might be on a

reconnaissance was effectively discounted in the intelligence

assessment (see para. 34).  Deputy Commissioner Colombo recalled that

the possibility that the three suspects were on reconnaissance was

discussed in the operation room after 14.50 when the three suspects had

met in the assembly area.  The decision not to arrest at that point was

based on the consideration that they were on reconnaissance.  However

the reconnaissance possibility was no longer taken into account when

at approximately 15.40 Savage broke away from McCann and Farrell to

return south.

14.   There is also a basic inconsistency in the decision to allow a

suspected car-bomb into Gibraltar on Sunday 6 March and sit in the

assembly area without instituting an immediate evacuation,

notwithstanding that the authorities were of the view that on an

attempt to arrest being made the suspected bomb might be detonated by

remote control.  However one resolves the predicament of the

dramatically conflicting information provided by the parties from

Spanish authorities as to whether or not the car was under surveillance

as it approached the border (see paras. 160-164 of the Report) the fact

remains that no effective efforts were made to stop the car in the

controlled environment of a border where the risks of casualties and

damage would be less.  At the time the four soldiers were authorised

to proceed to an arrest, the risk of detonation suddenly assumed urgent

proportions and was perceived as such an immediate threat as to justify

the use of lethal force.  At the same time, no immediate effort was

made to evacuate the square.

15.   There was an undisclosed but considerable number of plainclothes

personnel on the ground at the time of the operation, comprising SAS

soldiers, police and surveillance agents.  There is no adequate

explanation as to why all these people were not instructed to attempt

at a given signal to surround and pinion the suspects either in the

assembly area at 14.50 or in the course of the following hour or so.

The only explanation seems to be that the soldiers role did not come

into play until control was passed to them at 15.40.  This does not

answer the question as to why plans were not made for the obvious means

of arresting and bringing to trial the suspects while at the same time

ensuring that no detonating device was activated, that is, to pinion

their arms.

16.   At paragraphs 231-233 the majority isolate the role of the four

soldiers and effectively exonerate them on the basis that they were

acting on the briefing they had received from their superior officers.

It is understandable that a juror could reach that conclusion if asked

to convict the soldiers of murder, rather than a lesser offence.

However, the fact is that the final, decisive link in the chain of lack

of care, omissions, errors and misleading information is represented

by the four soldiers' decisions to open fire and to shoot to kill.

They must be regarded as links in the chain of responsibility

attributable to the Government.  To allow the invocation by one person

of "briefing by superior officers" is not far removed from allowing a

defence of superior orders.  Such an approach would be operable at each

isolated link in the chain of expertise or other responsibility and

could logically lead to the conclusion that a Government could shirk

responsibility for a series of acts of carelessness on the part of its

agents.  Article 2 requires each person with responsibility to do what

is within his or her power to ensure that lethal force is not used

unless it is absolutely necessary.

17.   In sum, I am of the opinion that the planning and execution of

the operation disclosed a failure properly to balance the possible

risks represented by the suspects on 6 March against their right to

life.  The three suspects could have been arrested without the use of

lethal force and insufficient care was taken to ensure that that was

the course adopted.  The use of lethal force against the three suspects

was disproportionate to the aim of defending other persons from

unlawful violence.  The deprivation of life was consequently not the

result of the use of force which was no more than "absolutely

necessary" for that purpose.

18.   I conclude that there was a violation of Article 2.

                                                          Or. English

                DISSENTING OPINION OF MR. L. LOUCAIDES

      I find myself unable to agree with the majority in this case.

My conclusion is that Article 2 has been violated in respect of the

killing of McCann, Farrell and Savage.

      The right to life is the most fundamental human right.  The

Convention expressly forbids intentional deprivation of life save in

certain exceptional cases and under certain well-defined conditions.

Exception clauses must be interpreted narrowly and strictly, especially

so when they concern the right to life, for in such a case

misapplication of the exception results in the tragic, irretrievable

loss of human life.

      In this case, three persons were intentionally killed by agents

of the respondent Government.  The Government sought to justify these

killings by invoking paragraph 2 (a) of Article 2 of the Convention

which provides as follows :

      "...

      2.   Deprivation of life shall not be regarded as inflicted in

      contravention of this Article when it results from the use of

      force which is no more than absolutely necessary :

           a.    in defence of any person from unlawful violence ;

           ..."

      The facts of this case show that the deprivation of the life of

all three suspects was in reality not necessary for the "defence of any

person from unlawful violence".  The suspects were intentionally killed

because those responsible for the relevant operation believed that they

were planning to detonate by means of a remote control device, a bomb

in a car parked in a busy area of Gibraltar.  Such belief was wrong.

The suspects at the material time did not have any detonating device

on them and there was no bomb in the car in question.

      Under the Convention, States have a primary duty to protect life.

If they deprive any person of his life, they have to prove that their

action was strictly within the permissible exceptions both as a matter

of law and as a matter of fact.  In this case, the respondent

Government has not proved that the killing in question fell within the

exception invoked by them ;  rather, they contend that they honestly

and reasonably believed that they were acting in accordance with the

prerequisites of the exception provided under paragraph 2 (a) of

Article 2 of the Convention while in actual fact this proved not to be

so.

      The question then arises whether and to what extent a bona fide

reasonable mistake or error may exonerate a State from responsibility

under the Convention.  Such responsibility should not be confused with

individual responsibility, criminal or civil, under national legal

systems - though it is to be noted that in many civil systems such

mistakes do not constitute a defence to torts which are the result of

physical attacks.  The question whether there has been a breach of the

obligations provided in the Convention has to be determined on the

basis of the terms and conditions of the Convention itself.  These

obligations are not comparable with those governed by norms of criminal

or civil laws.

      The Convention provides that "the High Contracting Parties shall

secure to everyone within their jurisdiction the rights and freedoms"

defined in the Convention.  The terms of the Convention do not appear

to allow mistakes or errors as a justification or defence for failing

to secure the rights in question.  The test of whether there is a

violation of such  right is objective.  A violation is sufficiently

established if it is proved that the State concerned has actually

caused the interference with a right or failed to secure the right in

circumstances that do not satisfy strictly the conditions of any

permissible justification.  In this sense, State liability under the

Convention for breach of its provisions is strict.

      Mistakes by State agents, however honest and reasonable they may

be, cannot excuse the State unless, of course, the mistake is the

result of an act of the individual complaining of the breach in which

case the complainant may be responsible for causing himself the

situation for which he complains.  The State may then escape liability

not by virtue of the mistake as such, but by reason of the fact of not

being itself responsible for causing the violation complained of.  For

instance, when a complainant threatens the police with a false grenade

he and not the police, will be responsible for any physical attack on

him by the police.  One can think of many other relevant examples.

      The fact that the mistake can exculpate the agents of the State

labouring under it from personal criminal responsibility under the

domestic law cannot be sufficient to exculpate also the State from

responsibility under the Convention.  Indeed to accept otherwise would

lead to absurd results in respect of State responsibility for

interferences with the rights set out in the Convention (e.g.

Article 5) and in particular as regards the application of permissible

limitations and restrictions on such rights.

      Therefore I believe that in this case the killing of the three

suspects cannot legally be justified on the ground of an honest and

reasonable mistake;  and so long as it amounted to an intentional

deprivation of life which did not fall within any of the exceptions

provided under Article 2 of the Convention, it was a breach of that

Article in respect of all three suspects.

      I consider it useful to add that even if I assume that an honest

and reasonable mistaken belief could in law be sufficient to bring a

case within the ambit of Article 2(2)(a), I find that on the basis of

the facts of the present case the respondent Government has failed to

establish (a) that the assumption that the three suspects were at the

time of the killing ready and in a position to detonate a bomb in the

car parked in the town of Gibraltar was a reasonable assumption; and

(b) that the deliberate killing of the suspects was no more than

absolutely necessary in order to avoid the assumed explosion.

      In reaching these conclusions I have taken into account the

following :

(a) that no sufficient evidence was produced to establish that those

who organised the relevant operation on behalf of the Government had

concrete and convincing proof that the three suspects were at the

material time carrying such special detonating devices that would

enable them to detonate a bomb in the car by a single quick touch of

a button without such device being visible from a distance of as little

as 3-6 feet ie. the distance to which those who killed the suspects had

approached at the time without noticing any detonating device on the

suspects;

(b) no sufficient evidence was produced to prove that those who

organised the killing operation had any concrete evidence justifying

a belief, reaching the degree of certainty and not of mere suspicion,

that the suspects were at the material time ready to detonate a bomb

in the car as aforesaid;

(c) it was not proved that nothing short of actual killing of the

suspects could have avoided their assumed plans.  In this respect it

should be borne in mind that the team responsible for the killing was

basically trained to kill terrorists and not to arrest or otherwise

prevent terrorists from using the assumed violence without actually

killing them.

      It is, I think, the duty of the States under the Convention when

undertaking an operation aimed at preventing unlawful violence to take

all necessary measures to avoid causing the death of any person : both

on the side of those threatened with such violence as well as on the

side of those threatening to use it.  This is how I understand the duty

of the states to protect human life.  And when any of the exceptions

provided in paragraph 2 of Article 2 is invoked then the deprivation

of life must be proved to have been inevitable for the achievement of

the relevant purpose provided therein.  This, I believe, has not be

proved in the present case even on the basis of the facts erroneously

assumed to be correct by the agents of the respondent Government.

      For all the above reasons I find that there has been a breach of

Article 2 in respect of the killing of McCann, Farrell and Savage.

                              Appendix I

                      HISTORY OF THE PROCEEDINGS

Date                  Item

________________________________________________________________

14.08.91              Introduction of the application

24.10.91              Registration of the application

Examination of admissibility

29.02.92              Commission's decision to invite the parties to

                      submit observations on the admissibility and

                      merits

11.08.92              Government's observations

23.10.92              Commission's grant of legal aid

13.01.93              Applicant's observations in reply

O2.O4.93              Commission's decision to invite the parties to

                      an oral hearing

03.09.93              Hearing on admissibility and merits

03.09.93              Commission's decision to declare the application

                      admissible

Examination of the merits

03.09.93              Commission's deliberations

12.11.93              Government's observations

16.11.93              Applicant's observations

17.11.93              Applicant's additional submissions

15.01.94              Consideration of the state of proceedings

04.03.94              Commission's deliberations on the merits, final

                      votes and adoption of the Report

 

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