49
McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT
people in Gibraltar including their own military personnel and, on the other,
to have minimum resort to the use of lethal force against those suspected of
posing this threat in the light of the obligations flowing from both domestic
and international law.
193. Several other factors must also be taken into consideration.
In the first place, the authorities were confronted by an active service unit
of the IRA composed of persons who had been convicted of bombing
offences and a known explosives expert. The IRA, judged by its actions in
the past, had demonstrated a disregard for human life, including that of its
own members.
Secondly, the authorities had had prior warning of the impending
terrorist action and thus had ample opportunity to plan their reaction and, in
co-ordination with the local Gibraltar authorities, to take measures to foil
the attack and arrest the suspects. Inevitably, however, the security
authorities could not have been in possession of the full facts and were
obliged to formulate their policies on the basis of incomplete hypotheses.
194. Against this background, in determining whether the force used was
compatible with Article 2 (art. 2), the Court must carefully scrutinise, as
noted above, not only whether the force used by the soldiers was strictly
proportionate to the aim of protecting persons against unlawful violence but
also whether the anti-terrorist operation was planned and controlled by the
authorities so as to minimise, to the greatest extent possible, recourse to
lethal force. The Court will consider each of these points in turn.
(2) Actions of the soldiers
195. It is recalled that the soldiers who carried out the shooting (A, B, C
and D) were informed by their superiors, in essence, that there was a car
bomb in place which could be detonated by any of the three suspects by
means of a radio-control device which might have been concealed on their
persons; that the device could be activated by pressing a button; that they
would be likely to detonate the bomb if challenged, thereby causing heavy
loss of life and serious injuries, and were also likely to be armed and to
resist arrest (see paragraphs 23, 24-27, and 28-31 above).
196. As regards the shooting of Mr McCann and Ms Farrell, the Court
recalls the Commission’s finding that they were shot at close range after
making what appeared to Soldiers A and B to be threatening movements
with their hands as if they were going to detonate the bomb (see paragraph
132 above). The evidence indicated that they were shot as they fell to the
ground but not as they lay on the ground (see paragraphs 59-67 above).
Four witnesses recalled hearing a warning shout (see paragraph 75 above).
Officer P corroborated the soldiers’ evidence as to the hand movements (see
paragraph 76 above). Officer Q and Police Constable Parody also confirmed
that Ms Farrell had made a sudden, suspicious move towards her handbag
(ibid.).