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
62
soldiers on the ground in such a way as to give them the impression that the
presence of a bomb had been definitely identified. But, given the
assessments which had been made of the likelihood of a remote control
being used, and given the various indicators that the car should indeed be
suspected of containing a bomb, the actions which the soldiers must be
expected to have taken would be the same whether their understanding of
the message was as it apparently was or whether it was in the sense which
Soldier G apparently intended. In either case, the existence of the risk to the
people of Gibraltar would have been enough, given the nature of that risk,
justifiably to prompt the response which followed.
18. Paragraph 209, in referring to the assessment made by Soldier G, also
recalls that while he had experience with car bombs, he was not an expert in
radio communications or explosives. In considering that assessment, it
would, however, be fair to add that, although his inspection of the car was
of brief duration, it was enough to enable him to conclude, particularly in
view of the unusual appearance of its aerial in relation to the age of the car
and the knowledge that the IRA had in the past used cars with aerials
specially fitted, that it was to be regarded as a suspect car bomb.
The authorities were, in any event, not acting solely on the basis of
Soldier G’s assessment. There had also been the earlier assessment, to
which we have referred in paragraph 13 above, that a "blocking" car was
unlikely to be used. In addition, the car had been seen to be parked by
Savage, who was known to be an expert bomb-maker and who had taken
some time (two to three minutes, according to one witness) to get out of the
car, after fiddling with something between the seats.
19. Paragraph 210 of the judgment asserts, in effect, that the use of lethal
force was made "almost unavoidable" by the conveyance to Soldiers A, B,
C and D of a series of working hypotheses which were vitiated by the
absence of sufficient allowances for alternative possibilities and by "the
definite reporting ... of a car bomb which ..., could be detonated at the press
of a button".
We have dealt in paragraphs 13-16 with the points advanced in support
of the conclusion that insufficient allowance was made for alternative
possibilities; and in paragraphs 17 and 18 with the question of reporting as
to the presence of a car bomb.
We further question the conclusion that the use of lethal force was made
"almost unavoidable" by failings of the authorities in these respects. Quite
apart from any other consideration, this conclusion takes insufficient
account of the part played by chance in the eventual outcome. Had it not
been for the movements which were made by McCann and Farrell as
Soldiers A and B closed on them and which may have been prompted by the
completely coincidental sounding of a police car siren, there is every
possibility that they would have been seized and arrested without a shot
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