McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT
JOINT DISSENTING OPINION OF JUDGES RYSSDAL, BERNHARDT, THÓR
VILHJÁLMSSON, GÖLCÜKLÜ, PALM, PEKKANEN, SIR JOHN FREELAND, BAKA AND
JAMBREK
58
law, reached by a majority of nine to two a verdict of lawful killing. The
circumstances were subsequently investigated in depth and evaluated by the
Commission, which found in its report, by a majority of eleven to six, that
there had been no violation of the Convention.
The finding of the inquest, as a domestic tribunal operating under the
relevant domestic law, is not of itself determinative of the Convention
issues before the Court. But, having regard to the crucial importance in this
case of a proper appreciation of the facts and to the advantage undeniably
enjoyed by the jury in having observed the demeanour of the witnesses
when giving their evidence under examination and cross-examination, its
significance should certainly not be underestimated. Similarly, the
Commission’s establishment and evaluation of the facts is not conclusive
for the Court; but it would be mistaken for the Court, at yet one further
remove from the evidence as given by the witnesses, to fail to give due
weight to the report of the Commission, the body which is primarily
charged under the Convention with the finding of facts and which has, of
course, great experience in the discharge of that task.
8. Before turning to the various aspects of the operation which are
criticised in the judgment, we would underline three points of a general
nature.
First, in undertaking any evaluation of the way in which the operation
was organised and controlled, the Court should studiously resist the
temptations offered by the benefit of hindsight. The authorities had at the
time to plan and make decisions on the basis of incomplete information.
Only the suspects knew at all precisely what they intended; and it was part
of their purpose, as it had no doubt been part of their training, to ensure that
as little as possible of their intentions was revealed. It would be wrong to
conclude in retrospect that a particular course would, as things later
transpired, have been better than one adopted at the time under the pressures
of an ongoing anti-terrorist operation and that the latter course must
therefore be regarded as culpably mistaken. It should not be so regarded
unless it is established that in the circumstances as they were known at the
time another course should have been preferred.
9. Secondly, the need for the authorities to act within the constraints of
the law, while the suspects were operating in a state of mind in which
members of the security forces were regarded as legitimate targets and
incidental death or injury to civilians as of little consequence, would
inevitably give the suspects a tactical advantage which should not be
allowed to prevail. The consequences of the explosion of a large bomb in
the centre of Gibraltar might well be so devastating that the authorities
could not responsibly risk giving the suspects the opportunity to set in train
the detonation of such a bomb. Of course the obligation of the United
Kingdom under Article 2 para. 1 (art. 2-1) of the Convention extended to
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