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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The judgment does not, however, go on to say that it would have been
practicable for the authorities to have arrested and detained the suspects at
that stage. Rightly so, in our view, because at that stage there might not be
sufficient evidence to warrant their detention and trial. To release them,
after having alerted them to the state of readiness of the authorities, would
be to increase the risk that they or other IRA members could successfully
mount a renewed terrorist attack on Gibraltar. In the circumstances as then
known, it was accordingly not "a serious miscalculation" for the authorities
to defer the arrest rather than merely stop the suspects at the border and turn
them back into Spain.
12. Paragraph 206 of the judgment then lists certain "key assessments"
made by the authorities which, in paragraph 207, are said to have turned out,
in the event, to be erroneous, although they are accepted as all being
possible hypotheses in a situation where the true facts were unknown and
where the authorities were operating on the basis of limited intelligence
information. Paragraph 208 goes on to make the criticism that "insufficient
allowances appear to have been made for other assumptions".
13. As a first example to substantiate this criticism, the paragraph then
states that since the bombing was not expected until 8 March "there was
equally the possibility that the ... terrorists were on a reconnaissance
mission".
There was, however, nothing unreasonable in the assessment at the
operational briefing on 5 March that the car which would be brought into
Gibraltar was unlikely, on the grounds then stated, to be a "blocking" car
(see paragraph 23, point e). So, when the car had been parked in the
assembly area by one of the suspects and all three had been found to be
present in Gibraltar, the authorities could quite properly operate on the
working assumption that it contained a bomb and that, as the suspects were
unlikely to risk two visits, it was not "equally" possible that they were on a
reconnaissance mission.
In addition, Soldier F, the senior military adviser to the Gibraltar
Commissioner of Police, gave evidence to the inquest that, according to
intelligence information, reconnaissance missions had been undertaken
many times before: reconnaissance was, he had been told, complete and the
operation was ready to be run. In these circumstances, for the authorities to
have proceeded otherwise than on the basis of a worst-case scenario that the
car contained a bomb which was capable of being detonated by the suspects
during their presence in the territory would have been to show a reckless
failure of concern for public safety.
14. Secondly, it is suggested in the second sub-paragraph of paragraph
208 that, at the briefings or after the suspects had been spotted, "it might
have been thought unlikely that they would have been prepared to explode
the bomb, thereby killing many civilians, as Mr McCann and Ms Farrell
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