53
McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT
experience in car bombs, it transpired that he was not an expert in radio
communications or explosives; and that his assessment that there was a
suspect car bomb, based on his observation that the car aerial was out of
place, was more in the nature of a report that a bomb could not be ruled out
(see paragraph 53 above).
210. In the absence of sufficient allowances being made for alternative
possibilities, and the definite reporting of the existence of a car bomb which,
according to the assessments that had been made, could be detonated at the
press of a button, a series of working hypotheses were conveyed to Soldiers
A, B, C and D as certainties, thereby making the use of lethal force almost
unavoidable.
211. However, the failure to make provision for a margin of error must
also be considered in combination with the training of the soldiers to
continue shooting once they opened fire until the suspect was dead. As
noted by the Coroner in his summing-up to the jury at the inquest, all four
soldiers shot to kill the suspects (see paragraphs 61, 63, 80 and 120 above).
Soldier E testified that it had been discussed with the soldiers that there was
an increased chance that they would have to shoot to kill since there would
be less time where there was a "button" device (see paragraph 26 above).
Against this background, the authorities were bound by their obligation to
respect the right to life of the suspects to exercise the greatest of care in
evaluating the information at their disposal before transmitting it to soldiers
whose use of firearms automatically involved shooting to kill.
212. Although detailed investigation at the inquest into the training
received by the soldiers was prevented by the public interest certificates
which had been issued (see paragraph 104, at point 1. (iii) above), it is not
clear whether they had been trained or instructed to assess whether the use
of firearms to wound their targets may have been warranted by the specific
circumstances that confronted them at the moment of arrest.
Their reflex action in this vital respect lacks the degree of caution in the
use of firearms to be expected from law enforcement personnel in a
democratic society, even when dealing with dangerous terrorist suspects,
and stands in marked contrast to the standard of care reflected in the
instructions in the use of firearms by the police which had been drawn to
their attention and which emphasised the legal responsibilities of the
individual officer in the light of conditions prevailing at the moment of
engagement (see paragraphs 136 and 137 above).
This failure by the authorities also suggests a lack of appropriate care in
the control and organisation of the arrest operation.
213. In sum, having regard to the decision not to prevent the suspects
from travelling into Gibraltar, to the failure of the authorities to make
sufficient allowances for the possibility that their intelligence assessments
might, in some respects at least, be erroneous and to the automatic recourse
to lethal force when the soldiers opened fire, the Court is not persuaded that
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