45
McCANN AND OTHERS v. THE UNITED KINGDOM JUDGMENT
178. The Commission concluded that there was no evidence to support
the applicants’ claim of a premeditated plot to kill the suspects.
179. The Court observes that it would need to have convincing evidence
before it could conclude that there was a premeditated plan, in the sense
developed by the applicants.
180. In the light of its own examination of the material before it, the
Court does not find it established that there was an execution plot at the
highest level of command in the Ministry of Defence or in the Government,
or that Soldiers A, B, C and D had been so encouraged or instructed by the
superior officers who had briefed them prior to the operation, or indeed that
they had decided on their own initiative to kill the suspects irrespective of
the existence of any justification for the use of lethal force and in
disobedience to the arrest instructions they had received. Nor is there
evidence that there was an implicit encouragement by the authorities or
hints and innuendoes to execute the three suspects.
181. The factors relied on by the applicants amount to a series of
conjectures that the authorities must have known that there was no bomb in
the car. However, having regard to the intelligence information that they
had received, to the known profiles of the three terrorists, all of whom had a
background in explosives, and the fact that Mr Savage was seen to "fiddle"
with something before leaving the car (see paragraph 38 above), the belief
that the car contained a bomb cannot be described as either implausible or
wholly lacking in foundation.
182. In particular, the decision to admit them to Gibraltar, however open
to criticism given the risks that it entailed, was in accordance with the arrest
policy formulated by the Advisory Group that no effort should be made to
apprehend them until all three were present in Gibraltar and there was
sufficient evidence of a bombing mission to secure their convictions (see
paragraph 37 above).
183. Nor can the Court accept the applicants’ contention that the use of
the SAS, in itself, amounted to evidence that the killing of the suspects was
intended. In this respect it notes that the SAS is a special unit which has
received specialist training in combating terrorism. It was only natural,
therefore, that in light of the advance warning that the authorities received
of an impending terrorist attack they would resort to the skill and experience
of the SAS in order to deal with the threat in the safest and most informed
manner possible.
184. The Court therefore rejects as unsubstantiated the applicants’
allegations that the killing of the three suspects was premeditated or the
product of a tacit agreement amongst those involved in the operation.