McCANN, FARRELL AND SAVAGE v. THE UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 18984/91

by Margaret McCANN, Daniel FARRELL

and John SAVAGE

against the United Kingdom

The European Commission of Human Rights sitting in private on

3 September 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 August 1991 by

Margaret McCANN, Daniel FARRELL and John SAVAGE against the United

Kingdom and registered on 24 October 1991 under file No. 18984/91;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

11 August 1992 and the observations in reply submitted by the

applicants on 14 January 1993;

- the parties' submissions at the oral hearing before the

Commission on 3 September 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are representatives of the respective estates of

Daniel McCann, Mairead Farrell and Sean Savage. They are all citizens

of both the United Kingdom and the Republic of Ireland. They are

represented before the Commission by Messrs. P.J. McGrory & Co.,

solicitors practising in Belfast.

The facts, as submitted by the parties, may be summarised as

follows.

On 6 March 1988, Daniel McCann, Mairead Farrell and Sean Savage

were shot and killed in Gibraltar by members of the Special Air Service

(the "S.A.S.") which is a regiment of the British Army. All three of

the victims were members of the Provisional I.R.A. which acknowledged

them to have been on "active service" at the time of their deaths.

Mairead Farrell had previously been convicted and sentenced to 14

years' imprisonment for causing explosions and Daniel McCann had been

previously convicted and sentenced to 2 years' imprisonment for

possession of explosives.

At the time that they were killed, the three deceased were

unarmed and carried no explosive detonation device. There was also no

car bomb present on Gibraltar.

An Inquest by the Gibraltar Coroner into the killings was opened

on 6 September 1988. The families of the deceased (the applicants) were

represented, as were the S.A.S soldiers and the United Kingdom

Government.

Prior to the Inquest, three certificates to the effect that

certain information should not, in the public interest, be disclosed,

were issued by the Secretary of State for the Home Department, the

Secretary of State for Defence and the Deputy Governor of Gibraltar,

dated respectively 26 August, 30 August and 2 September 1988. These

stated that the public interest required that the following categories

of information be protected from disclosure:

1 In the case of the seven military witnesses, the objection

was to the disclosure of any information or documents which would

reveal:

(i) their identity;

(ii) the identity, location, chains of command, method of

operation and the capabilities of the units with which the

soldiers were serving on 6 March 1988;

(iii) the nature of their specialist training or equipment;

(iv) the nature of any previous operational activities of the

soldiers, or of any units with which any of them might at any

time have served;

(v) in the case of Soldier "G" (the Ammunition Technical

Officer), any defence intelligence information, activities or

operations (and the sources of intelligence), including those on

the basis of which his assessments were made and details of

security forces counter-measures capabilities, including methods

of operation, specialist training and equipment.

2 In the case of Security Service witnesses, the objection was

to the disclosure of information which would reveal:

(a) the identities of members of the Security Service, and

details of their deployment, training and equipment;

(b) all sources of intelligence information;

(c) all details of the activities and operations of the Security

Services.

As was, however, expressly made clear in the certificates, no

objection was taken to the giving of evidence by either military or

Security Service witnesses as to:

(i) the nature of the information relating to the feared IRA

plot, which was transmitted to the Commissioner of Police and

others concerned (including general evidence as to the nature of

a Provisional IRA Active Service Unit);

(ii) the assessments made by Soldier "G" as to the likelihood of,

and the risks associated with, an explosive device and as to the

protective measures which might have to be taken;

(iii) the events leading up to the shootings on 6 March 1988 and

the circumstances surrounding them, including evidence relating

to the transfer of control to the military power.

At the Inquest, the applicants argued, inter alia, that the

decision to shoot to kill the suspects had been made by the United

Kingdom Government prior to the incident and, in any event, the force

used was excessive and not justified.

United Kingdom security officers gave evidence to the effect that

they had received information that a car, driven by suspects over the

border from Spain, would be carrying a bomb intended to be detonated

at the assembly of the band and other troops for the Changing of the

Guard ceremony at Gibraltar on 8 March 1988. They had formed the view

that it was likely that the bomb would be set off by a remote control

device. It was expected that the suspects would be armed.

The Commissioner of Gibraltar Police gave evidence to the effect

that, after the presence of the three suspects on Gibraltar was

confirmed, and he had been informed by soldier G. that the aerial on

a parked car did not appear to be an original aerial and might be

indicative that there was a bomb in the car, he had decided that the

three suspects should be arrested on suspicion of conspiracy to murder.

He signed an order requesting the military to intercept and apprehend

the three suspects. This form provided by the military read as follows:

"I, Joseph Luis Canepa, Commissioner of Police, having

considered the terrorist situation in Gibraltar and having

been fully briefed on the military plan with firearms,

request that you proceed with the military option which may

include the use of lethal force for the preservation of

life."

The four S.A.S. soldiers involved in the shooting also gave

evidence. They stated, inter alia, that they had been following the

three suspects with a view to effecting an arrest, that the suspects

had appeared to become aware of their presence, that each of the

suspects had made a suspicious and/or sudden gesture and that they had

shot them to prevent activation of the suspected bomb by remote

control.

At the conclusion of the Inquest, the Coroner referred the jury

to Article 2 of the Gibraltar Constitution:

"2.(1) No person shall be deprived of his life intentionally save

in execution of the sentence of a court in respect of a criminal

offence of which he has been convicted.

(2) A person shall not be regarded as having been deprived of his

life in contravention of this section if he dies as a result of

the use to such extent and in such circumstances as are permitted

by law, of such force as is reasonably justifiable:

a. for the defence of any person from violence or for the

defence of property;

b. in order to effect a lawful arrest or to prevent the

escape of a person lawfully detained...

d. in order to prevent the commission by that person of a

criminal offence."

The jury returned verdicts of lawful killing by a majority.

The applicants were dissatisfied with these verdicts and

commenced actions in the High Court of Justice in Northern Ireland

against the Ministry of Defence for the loss and damage suffered by the

estate of each deceased as a result of their death. The statements of

claim were served on 1 March 1990.

On 15 March 1990 the Secretary of State for Foreign and

Commonwealth Affairs issued certificates under Section 40(3)a of the

Crown Proceedings Act 1947, as amended by the Crown Proceedings

(Northern Ireland) Order 1981. Section 40(2)b of the same Act excludes

proceedings in Northern Ireland against the Crown in respect of

liability arising otherwise than "in respect of Her Majesty's

Government in the United Kingdom". A similar exemption applies to the

Crown in Northern Ireland pursuant to the 1981 Order. A certificate by

the Secretary of State to that effect is conclusive. The certificates

stated in this case that any alleged liability of the Crown arose

neither in respect of Her Majesty's Government in the United Kingdom,

nor in respect of Her Majesty's Government in Northern Ireland.

The Ministry of Defence then moved to have the actions struck

out. The applicants challenged the legality of the certificates in

judicial review proceedings. Leave to apply for judicial review was

granted ex parte on 6 July 1990, but withdrawn on 31 May 1991 following

a full hearing, on the basis that the application had no reasonable

prospects of success. Senior Counsel advised that an appeal against

this decision would be futile.

The applicants' High Court actions were struck off on

4 October 1991.

COMPLAINTS

The applicants, representing the estates of the deceased, claim

a violation of Article 2 of the Convention as a result of the killings

of 6 March 1988. They complain that the three deceased were

intentionally deprived of their right to life by the use of

unnecessary, unlawful force, without any attempt to effect a lawful

arrest.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 August 1991 and registered

on 24 October 1991.

On 20 February 1992, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 11 August 1992

after one extension in the time-limit and the applicants' observations

in reply were submitted on 13 January 1993 after two extensions in the

time-limit.

On 23 October 1992, the Commission decided to grant legal aid to

the applicants.

On 2 April 1993, the Commission decided to invite the parties to

make further submissions at an oral hearing.

At the hearing, which was held on 3 September 1993, the

Government were represented as follows:

Mrs. Audrey Glover Agent

Mr. Stephen Richards Counsel

Mr. James Eadie Counsel

Mr. Nicholas Lavender Counsel

Mr. David Pickup Adviser, Ministry of Defence

Mr. Michael Venables Adviser, Ministry of Defence

Mr. David Seymour Adviser, Home Office

The applicants were represented as follows:

Mr. Douwe Korff Counsel

Mr. P.J.B. McGrory Solicitor

Mr. Niall Farrell Son of the applicant, Mr. Daniel

Farrell

THE LAW

The applicants complain of the killing of the three deceased by

the S.A.S on Gibraltar. They invoke Article 2 (Art. 2) of the

Convention which provides as follows:

"1. Everyone's right to life shall be protected by law. No one

shall be deprived of his life intentionally save in the execution

of a sentence of a court following his conviction of a crime for

which this penalty is provided by law.

2 Deprivation of life shall not be regarded as inflicted in

contravention of this Article when it results from the use of

force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;

b. in order to effect a lawful arrest or to prevent the escape

of a person lawfully detained;

c. in action lawfully taken for the purpose of quelling a riot

or insurrection."

The Government submit that the applicants have not exhausted

domestic remedies in respect of their complaints, as required by

Article 26 (Art. 26) of the Convention, since they failed to institute

proceedings for unlawful killings before the Gibraltar courts which had

exclusive jurisdiction. They submit that it is incorrect to state that

the certificates issued in the proceedings in Northern Ireland barred

the applicants' action: they were merely evidential in character. They

submit that the courts in Northern Ireland by operation of law did not

have jurisdiction to consider the applicants' claims. Proceedings in

Gibraltar would however have provided an effective remedy. The

applicants cannot be absolved from exhausting this domestic remedy

merely on the basis of their ineligibility for legal aid. They have

to establish that their financial constraints and other circumstances

rendered such a course impossible.

The applicants submit that they have complied with the

requirement as to the exhaustion of domestic remedies imposed by

Article 26 (Art. 26) of the Convention. They were unable to pursue

proceedings in the High Court in Northern Ireland since the

certificates excluded the jurisdiction of the courts. They contest that

their claims necessarily raised matters outside the jurisdiction of the

courts in Northern Ireland. Further, they were unable to take

proceedings in Gibraltar since they were not eligible for legal aid and

had no other means of pursuing such proceedings.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress. An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach. The Commission has held that where, for example,

there is a choice of remedies open to an applicant, Article 26

(Art. 26) of the Convention must be applied to reflect the practical

realities of the applicant's position in order to ensure the effective

protection of the rights and freedoms guaranteed by the Convention (cf.

No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78, and No. 9118/80, Dec.

9.3.83, D.R. 32 p. 159).

It is furthermore established that the burden of proving the

existence of available and sufficient domestic remedies lies upon the

State invoking the rule (cf. Eur. Court. H.R., Deweer judgment of 27

February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80, Dec.

11.12.82, D.R. 30 p. 96, at p. 102).

In the present case, the Commission notes that the applicants,

as conceded by the Government, would not have been eligible for legal

aid in Gibraltar. The Commission finds that they have insufficient

means to pay for legal representation themselves. In this context the

Commission recalls that they were found eligible under the financial

criteria for legal aid in Northern Ireland and before the Commission

itself. Having regard, in addition, to the difficulties imposed by the

distance and the difficulty and complexity of the factual and legal

issues which would have been raised in proceedings in Gibraltar, the

applicants could not have proceeded without legal representation.

Consequently, the Commission finds that the remedy cannot realistically

have been available to the applicants in this case.

Further, the Commission finds that the applicants' choice of

pursuing proceedings in the courts of Northern Ireland was not

unreasonable or without basis in domestic law. The applicants in those

proceedings (in respect of which they were granted legal aid by the

relevant domestic authorities) intended, inter alia, to argue that

liability arose out of the actions of Crown agents based in the United

Kingdom and Northern Ireland. The certificates issued by the Secretary

of State were however conclusive of the fact that the alleged liability

did not arise in respect of the Government in the United Kingdom or in

Northern Ireland and effectively put an end to the proceedings.

In these circumstances, the Commission finds that the application

cannot be declared inadmissible for non-exhaustion of domestic

remedies.

As regards the substance of the case, the applicants submit that

there has been a violation of Article 2 (Art. 2) of the Convention in

respect of the shooting of the three deceased persons. They consider

that Article 2 (Art. 2) imposes a duty on States to adopt clear and

detailed legal rules on the use of lethal force, which strictly control

and limit that use. They consider that United Kingdom law is vague and

general and therefore is in itself in violation of this provision. They

submit that Article 2 (Art. 2) requires, in addition, that States

exercise strict operational control over the use of lethal force,

including the giving of appropriate training, briefings and

instructions. They contend that soldiers are trained to shoot to kill

without warning and that the operation in Gibraltar was neither planned

nor executed in such a way as to minimise the need for the use of

lethal force. They point to the fact that the soldiers were apparently

made to believe (wrongly) firstly, that the suspects were armed;

secondly, that there was a car bomb in place; and thirdly, that the

bomb could be detonated by the suspects by means of a remote control

device.

The applicants further submit that Article 2 (Art. 2) should be

interpreted as including a procedural element, namely, the provision

of an effective procedure after a lethal shooting for establishing the

facts. They complain that the Inquest was inadequate, inter alia, as

public interest certificates were used to block crucial evidence. They

allege that there had been a lack of diligence in seeking out witnesses

and attempts made to intimidate and discredit those who did come

forward.

The Government submit that specific protection of life is

provided by the Gibraltar Constitution and that this is in conformity

with the standards imposed by Article 2 (Art. 2). They point out that

the jury on consideration of the evidence found that the killings were

lawful. They contend that it is implicit from that finding that the

jury considered that there had been no plot to kill the deceased

terrorists, that the soldiers had honestly and reasonably believed that

there was a car bomb which could be detonated by remote control and

that the degree of force used by the soldiers was proportionate to the

aim of protecting the lives of the people of Gibraltar.

As regards the Inquest proceedings, the Government submit that

it provided an exhaustive fact-finding investigation by an independent

body. In particular, they highlight the fact that 78 witnesses

(including the S.A.S soldiers and Security Service personnel involved

in the incident) were extensively examined and cross-examined by the

legal representatives of the applicants, that the Inquest was held

within six months of the incident, that the applicants' representatives

made no challenge to the public immunity certificates, and that the

Coroner exercised his discretion to allow certain questions, despite

objection by the Crown on the basis of the certificates.

The Commission considers that the applicants' complaints under

Article 2 (Art. 2) of the Convention raise complex issues of fact and

law, the determination of which should depend on the merits. The

application must therefore be declared admissible, no other ground for

declaring it inadmissible having been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NØRGAARD)