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
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strolled towards the border area since this would have increased the risk of
detection and capture".
Surely, however, the question is rather whether the authorities could
safely have operated on the assumption that the suspects would be unlikely
to be prepared to explode the bomb when, even if for the time being moving
in the direction of the border, they became aware that they had been
detected and were faced with the prospect of arrest. In our view, the answer
is clear: certainly, 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. It is relevant that, according to Soldier F’s evidence at the
inquest, part of the intelligence background was that he had been told that
the IRA were under pressure to produce a "spectacular". He also gave
evidence of his belief that, when cornered, the suspects would have no
qualms about pressing the button to achieve some degree of propaganda
success: they would try to derive such a success out of having got a bomb
into Gibraltar and that would outweigh in their minds the propaganda loss
arising from civilian casualties.
15. The second sub-paragraph of paragraph 208 goes on to suggest that it
"might also have been thought improbable that at that point" - that is,
apparently, as McCann and Farrell "strolled towards the border" - "[the
suspects] would have set up the transmitter in anticipation to enable them to
detonate the supposed bomb immediately if confronted".
Here, the question ought, we consider, to be whether the authorities
could prudently have proceeded otherwise than on the footing that there was
at the very least a possibility that, if not before the suspects became aware
of detection then immediately afterwards, the transmitter would be in a state
of readiness to detonate the bomb.
16. It is next suggested, in the third sub-paragraph of paragraph 208, that
"even if allowances are made for the technological skills of the IRA, the
description of the detonation device as a `button job’ without the
qualifications subsequently described by the experts at the inquest ..., of
which the competent authorities must have been aware, over-simplifies the
true nature of these devices". The exact purport of this criticism is perhaps
open to some doubt. What is fully clear, however, is that, as the applicants’
own expert witness accepted at the inquest, a transmitter of the kind which
was thought likely to be used in the present case could be set up so as to
enable detonation to be caused by pressing a single button; and in the light
of past experience it would have been most unwise to discount the
possibility of technological advance in this field by the IRA.
17. Paragraph 209 of the judgment expresses disquiet that the assessment
made by Soldier G that there was a "suspect car bomb" was conveyed to the
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