Introduction
The case of McCann and Others v UK, [1995] ECHR 18984/91, represents a significant judgment by the European Court of Human Rights (ECtHR) concerning the interpretation and application of Article 2 of the European Convention on Human Rights (ECHR). Article 2 safeguards the right to life, imposing both a positive duty upon states to protect life and a negative duty to refrain from taking life. This dual obligation necessitates a robust legal framework and diligent investigation when state agents use force resulting in loss of life. The McCann case specifically addressed the circumstances under which the use of lethal force by state agents, in this instance members of the Special Air Service (SAS), could be justified, placing emphasis on the concept of “absolutely necessary” force, a standard used to assess the proportionality of state action in life-threatening situations. The case explores the extent to which the planning and control of such operations impact the assessment of violation of Article 2, shifting the focus from the individual actions of agents to the overall operational strategy employed by the state.
The Factual Background of McCann v UK
The circumstances surrounding McCann v UK involved the deaths of three Irish Republican Army (IRA) suspects, Daniel McCann, Mairead Farrell, and Sean Savage, in Gibraltar during a planned operation by the SAS. Prior to March 1998, authorities in Gibraltar, Spain, and the United Kingdom possessed intelligence suggesting an impending IRA terrorist attack in Gibraltar targeting the Royal Anglian Regiment's assembly area through the use of a car bomb. In response, the SAS was deployed to apprehend the suspects. The operational framework included specific rules of engagement, which outlined the circumstances under which lethal force could be used. The SAS soldiers, believing the suspects were reaching for a detonator, shot and killed the three IRA members. The subsequent inquest in Gibraltar delivered verdicts of lawful killing. Dissatisfied with these verdicts, the families of the deceased pursued legal action within Northern Ireland against the Ministry of Defence. However, this was blocked by the Secretary of State through certificates issued under s40(3) of the Crown Proceedings Act 1947, which exclude proceedings against the Crown in Northern Ireland.
The Legal Proceedings and the European Court of Human Rights
Following the dismissal of their case within the UK jurisdiction, the applicants brought their claim to the European Commission of Human Rights (ECHR) in 1991 alleging a violation of Article 2 of the ECHR. The Commission, initially, ruled that there had been no violation. The case subsequently was brought before the ECtHR, which then considered the interpretation of Article 2 in relation to the use of lethal force. The Court underscored that the use of force by state agents must be “absolutely necessary” and “strictly proportionate” in order to be permissible under Article 2(2) exceptions. These exceptions include self-defence, effecting a lawful arrest, preventing an escape, or quelling a riot or insurrection. This standard requires a rigorous assessment of the circumstances to determine if the use of force was the minimum amount necessary to achieve a legitimate aim. The Court further clarified that this assessment should encompass both the actions of the individual agents involved and the overarching planning and control of the operation by the state authorities.
Analysis of the Court's Decision
The ECtHR, in its ruling on McCann v UK, acknowledged that the SAS soldiers genuinely believed that they needed to act in self-defence by shooting the suspects to prevent a potential detonation of a car bomb. Consequently, the court concluded that the actions of the individual soldiers themselves did not violate Article 2. However, the Court then shifted its focus from the soldiers’ actions to the broader conduct of the operation by the authorities. The ECtHR identified specific failures in the control and planning of the operation that breached Article 2. These included the failure of the authorities to prevent the suspects from entering Gibraltar, and secondly, the lack of sufficient consideration given to the possibility that intelligence regarding the suspects carrying a remote detonation device might be inaccurate. The court ruled that these shortcomings contributed to a situation in which the soldiers were compelled to make reactive decisions, based on inadequate planning and imprecise intelligence. This was not, in the view of the ECtHR, an “absolutely necessary” response, rather a consequence of insufficient strategic control by the state. The Court did not award damages as they accepted the claimants were planning a terrorist attack; however, costs were awarded.
Implications and Subsequent Case Law
The McCann v UK judgment has had a significant impact on subsequent jurisprudence regarding Article 2 and the use of lethal force by state agents. The case established the principle that an assessment of Article 2 violations cannot be limited to the immediate actions of individual agents, but must also include a review of the planning and control of such operations by state authorities. The case highlighted the importance of meticulous planning, accurate intelligence, and the exploration of less lethal alternatives in situations where the use of lethal force is contemplated. This was later considered in Andronicou v Cyprus where the ruling in McCann was followed. However, academic writers were critical of the fact that the exceptions within Article 2 appear to allow for an absolutely necessary killing to effect an arrest but not to prevent a crime. In the case of R (on the application of Duggan) v Her Majesty’s Assistant Deputy Coroner for the Northern District of Greater London, the Court followed the precedent established in McCann and Andronicou, when deciding if the killing of a man by the police was lawful, ruling that the officers belief that there was an imminent threat to life was justified in the use of lethal force.
The Evolution of the 'Absolute Necessity' Standard
The ECtHR’s approach to the ‘absolute necessity’ test in cases involving lethal force has demonstrated a measure of flexibility, particularly in instances of minimal control by the authorities. In Finogenov v Russia, the Court departed from the strict application of the ‘absolute necessity’ standard due to the time pressure and limited control faced by the authorities during a hostage crisis. In this ruling, the Court found that no violation of Article 2 had occurred, which highlighted the dynamic nature of the state’s duty when confronted with exigent circumstances. This ruling further developed the understanding of the application of lethal force in complex situations, introducing elements of reasonableness to the test of 'absolutely necessary' and further refining the parameters of Article 2 when viewed through the lens of modern scenarios.
Conclusion
The McCann v UK case represents a landmark decision in the application of Article 2 of the European Convention on Human Rights, particularly in matters concerning the use of lethal force by state agents. The judgment established that the state’s obligations under Article 2 extend beyond the immediate actions of its agents, encompassing the planning, control, and execution of operations where lethal force is a potential outcome. The decision in McCann, when coupled with judgments in cases like Andronicou, Duggan and Finogenov, reveal a developing jurisprudence which seeks to balance the need to protect life with the practical realities of law enforcement operations. These rulings demonstrate the need for careful assessment, accurate intelligence, and a commitment to the least amount of force necessary. This combination of factors forms the critical parameters when assessing the conduct of state agents and the extent of a State’s duty under Article 2 of the ECHR.
