Facts
- Three suspected IRA members, Daniel McCann, Mairead Farrell, and Sean Savage, were killed by SAS soldiers in Gibraltar during a counter-terrorism operation based on intelligence about a planned bombing.
- Authorities from Gibraltar, Spain, and the UK believed the suspects intended to attack the Royal Anglian Regiment's assembly area using a car bomb.
- SAS soldiers, operating under specific rules of engagement, shot the suspects believing they were reaching for a bomb detonator.
- A Gibraltar inquest returned verdicts of lawful killing. The families, dissatisfied, attempted to pursue proceedings in Northern Ireland, but this was prevented by the Secretary of State using s40(3) of the Crown Proceedings Act 1947.
- The applicants alleged a violation of Article 2 of the ECHR and ultimately brought the case to the European Court of Human Rights after domestic avenues failed.
Issues
- Whether the use of lethal force by state agents in Gibraltar was “absolutely necessary” under Article 2(2) of the ECHR.
- Whether the planning and control of the operation by UK authorities met the standards required by Article 2.
- Whether individual SAS soldiers’ actions in shooting the suspects breached Article 2, considering their belief in a threat to life.
- Whether failures in intelligence assessment and operation design contributed to the violation of Article 2.
Decision
- The European Court of Human Rights found that the SAS soldiers genuinely believed use of lethal force was necessary in self-defence to prevent detonation.
- The Court held there was no violation of Article 2 by the individual soldiers because their actions were based on their perception of threat.
- However, the Court ruled that the overall planning and control of the operation by state authorities was insufficient, constituting a breach of Article 2.
- Failures identified included not preventing the suspects from entering Gibraltar and inadequately questioning the reliability of intelligence regarding the bomb threat.
- No damages were awarded as the claimants were found to be planning a terrorist attack, but costs were granted to the applicants.
Legal Principles
- Article 2 ECHR sets both a negative obligation on states to refrain from unjustified taking of life and a positive obligation to protect life.
- The use of lethal force by state agents must be “absolutely necessary” and “strictly proportionate” to the aim pursued under Article 2(2).
- Assessment of an Article 2 violation must consider not only the conduct of individual agents but also the operation’s planning and control by authorities.
- Rigorous scrutiny of intelligence quality and the consideration of less lethal alternatives is required before resorting to deadly force.
- The standard of “absolute necessity” may vary depending on circumstances, with subsequent cases illustrating flexibility where state control is limited.
Conclusion
McCann and Others v United Kingdom clarified that state responsibility under Article 2 ECHR encompasses both the conduct of individual agents and the operational planning and control by authorities. While the immediate use of force by SAS soldiers was found justified, deficiencies in the state's preparation and strategy rendered the lethal outcome a violation of the right to life. This case set enduring standards for state accountability in operations involving lethal force.