43
McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT
Nevertheless, it must be borne in mind that the jury’s finding was limited
to a decision of lawful killing and, as is normally the case, did not provide
reasons for the conclusion that it reached. In addition, the focus of concern
of the inquest proceedings and the standard applied by the jury was whether
the killings by the soldiers were reasonably justified in the circumstances as
opposed to whether they were "absolutely necessary" under Article 2 para. 2
(art. 2-2) in the sense developed above (see paragraphs 120 and 148-49
above).
171. Against this background, the Court must make its own assessment
whether the facts as established by the Commission disclose a violation of
Article 2 (art. 2) of the Convention.
172. The applicants further submitted that in examining the actions of the
State in a case in which the use of deliberate lethal force was expressly
contemplated in writing, the Court should place on the Government the
onus of proving, beyond reasonable doubt, that the planning and execution
of the operation was in accordance with Article 2 (art. 2) of the Convention.
In addition, it should not grant the State authorities the benefit of the doubt
as if its criminal liability were at stake.
173. The Court, in determining whether there has been a breach of
Article 2 (art. 2) in the present case, is not assessing the criminal
responsibility of those directly or indirectly concerned. In accordance with
its usual practice therefore it will assess the issues in the light of all the
material placed before it by the applicants and by the Government or, if
necessary, material obtained of its own motion (see the Ireland v. the United
Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, para. 160,
and the above-mentioned Cruz Varas and Others judgment, p. 29, para. 75).
2. Applicants’ allegation that the killings were premeditated
174. The applicants alleged that there had been a premeditated plan to
kill the deceased. While conceding that there was no evidence of a direct
order from the highest authorities in the Ministry of Defence, they claimed
that there was strong circumstantial evidence in support of their allegation.
They suggested that a plot to kill could be achieved by other means such as
hints and innuendoes, coupled with the choice of a military unit like the
SAS which, as indicated by the evidence given by their members at the
inquest, was trained to neutralise a target by shooting to kill. Supplying
false information of the sort that was actually given to the soldiers in this
case would render a fatal shooting likely. The use of the SAS was, in itself,
evidence that the killing was intended.
175. They further contended that the Gibraltar police would not have
been aware of such an unlawful enterprise. They pointed out that the SAS
officer E gave his men secret briefings to which the Gibraltar police were
not privy. Moreover, when the soldiers attended the police station after the
shootings, they were accompanied by an army lawyer who made it clear that