The killing of three terrorist suspects by Special Air Service soldiers did not constitute the use of force which was absolutely necessary in defence of persons from unlawful violence where the security authorities made insufficient allowances for possible errors in their intelligence assessments of the situation, combined with the soldiers' training to use lethal force.
The ECHR held, by ten votes to nine, that the killings of Daniel McCann, Mairead Farrell and Sean Savage constituted a violation of article 2 of the European Convention on Human Rights which protects the right to life.
Article 2 provides:
1) Everyone's right to life shall be protected by law . . . 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.
In 1988 the UK, Spanish and Gibraltar authorities were aware that the provisional IRA were planning a terrorist attack on Gibraltar. The intelligence assessment was that the IRA unit which had been identified would use a car bomb which would probably be detonated by a remote control device. It was planned to arrest the unit members after they had brought the car into Gibraltar. The members of the IRA unit were considered dangerous terrorists and would be likely, if confronted by security forces, to use their weapons or detonate the bomb.
On 6 March 1988 Sean Savage was seen parking a car in Gibraltar and then seen with Daniel McCann and Mairead Farrell. It was decided that SAS soldiers should arrest them. Soldiers followed them and shouted a command to stop. McCann, Farrell and Savage made movements and the soldiers, fearing that remote control devices were being set off, fired several shots at close range, killing them. Farrell was hit by eight bullets, McCann by five, and Savage by sixteen.
No weapons or detonator devices were found on their bodies. The car did not contain any explosive device. However another car hired by Farrell and found in Marbella, Spain, contained an explosive device.
The parents of the three suspects complained that the killings constituted a violation of article 2.
The ECHR said that article 2 ranked as one of the most fundamental provisions in the Convention. The permitted "use of force" must be no more than "absolutely necessary".
The court did not find it established that there was an execution plot at the highest level of command or that the soldiers had been instructed or had decided on their own initiative to kill the suspects irrespective of any justification for the use of lethal force.
The information which the UK authorities received presented them with a fundamental dilemma. On the one hand they were required to have regard to their duty to protect the lives of the people of Gibraltar and, on the other, to have minimum resort to the use of lethal force in the light of domestic and international law obligations.
The court questioned why the three suspects were not arrested at the border immediately on their arrival in Gibraltar. A number of the authorities' key assessments turned out to be erroneous. Insufficient allowances were made for other assumptions. There was the possibility that the terrorists were on a reconnaissance mission. It was disquieting that the suspect car bomb was conveyed to the soldiers as a definite identification of a bomb.
The failure to make provision for a margin of error had to be considered in combination with the training of the soldiers to continue to shoot once they opened fire until the suspect was dead. The authorities were bound to exercise the greatest of care in evaluating the information at their disposal.
Having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the court was not persuaded that the killings constituted a use of force which was no more than absolutely necessary in defence of persons from unlawful violence within article 2(2)(a). There thus had been a breach of article 2.
It was not appropriate to make an award of damages since the three terrorist suspects had been intending to plant a bomb in Gibraltar.
Ying Hui Tan, Barrister