By a 10 to 9 ruling, the Court of Human Rights in Strasbourg, decided that the operation had breached the "right to life." of Mairead Farrell, Daniel McCann and Sean Savage. In effect, they could and should have been arrested. The judges rejected any suggestion that either the Government or the Army hatched "an execution plot" to kill rather than arrest them. It also found no evidence that the SAS had been given "implicit encouragement, hints or innuendoes" to kill the three.
They found, however, that while the authorities had prior warning of the IRA's plans, they were not in full possession of the facts, and were working on incomplete hypotheses.
The court accepted that the four SAS men who carried out the shooting had honestly believed, in the light of how they had been briefed, that it was necessary to shoot the suspects to prevent serious loss of life.
But in the area of the control and organisation of the operation, the court ruled that the Human Rights Convention had been breached. It questioned why the suspects had not been arrested as they arrived at the Gibraltar border, and pointed out that the bomb attack was not expected for a further four days.
The judgment said it was disquieting that the SAS had been briefed that there was definitely a bomb, while the intelligence assessment was only that it was a suspected bomb. This, together with the fact that the SAS were told the bomb could be set off at the touch of a button, made the use of force almost unavoidable, the court concluded.
Noting that soldiers were trained, once they had opened fire, to shoot to kill, the court added: "The reflex action in this vital respect lacked the degree of caution in the use of firearms to be expected from law-enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects."
A dissenting opinion signed by nine of the judges concurred with much of the majority decision but disagreed that a breach of the convention had taken place. It argued that the authorities could not have been certain the IRA members would not set off the bomb when only civilians were around.
"Previous experience of IRA activities would have afforded no reliable basis for concluding that the killing of many civilians would itself be a sufficient deterrent or that the suspects, when confronted, would have preferred no explosion at all to an explosion causing civilian casualties," the judges said.
The existence of the risk to civilians was enough to justify the SAS response. Shooting to wound rather than to kill would have been dangerous since a wounded terrorist could still have set off a bomb.Reuse content