McCann and Others v UK - 1995

McCann and Others v UK (App.No. 18984/91); [1995] ECHR 18984/91

Article 2 (1) of the European Convention on Human Rights (ECHR) states that ‘everyone’s life should be protected by law’ and Article 2(2) states that deprivation of life should not contravene Article 2 if it results from the use of force which is absolutely necessary: (a) in defence of a person from unlawful violence, (b) in order to effect a lawful arrest, to prevent the escape of a person lawfully detained, or (c) in action lawfully taken to quell a riot or insurrection.¹

The obligations set out in Article 2 create a twofold duty: first, a positive duty to protect life and secondly, a negative duty to refrain from taking life.² The state carries the burden of those duties through its officers, agents and departments when making decisions that involve life-threatening situations.³ In order to protect life, the state has a duty, if there is real and immediate risk to the life of a person, to address such risk. When it comes to refraining from taking life, there must be a legal system to enforce the duty and proper investigation when there is loss of life as a result of force used by agents of the state.⁴

In McCann⁵ a claim was made by representatives of the estates of the deceased regarding killings perpetrated by SAS soldiers sent to Gibraltar to arrest Irish Republican Army (IRA) terrorist suspects. The claimants held that there had been a violation of Article 2 ECHR and they also wanted just satisfaction.⁶ Before March 1998, authorities in Gibraltar, Spain and the United Kingdom were aware that the IRA were planning a terrorist attack in Gibraltar. It appeared, through information received, that the attack involved detonating a car bomb and would take place at the assembly area where the Royal Anglian Regiment assembled to carry out the changing of the guard.⁷

The SAS was called to assist on the apprehension of the terrorist suspects. Rules of engagement were laid down, including rules regarding the circumstances when shots could be fired. The SAS soldiers shot the three IRA suspects on suspicion that they were reaching for a detonator to activate the car bomb, which was approximately 1.4 km from the place of the shootings.⁸ An inquest over the shootings was held in Gibraltar on 6 September 1988, with representation from the families of the deceased, the SAS soldiers and the British government. The jury returned verdicts of lawful killings by a majority of nine to two.⁹

The families of the deceased were dissatisfied with the verdicts and commenced proceedings in the High Court of Justice in Northern Ireland against the Ministry of Defence on 1 March 1990. However, the Secretary of State for Foreign and Commonwealth Affairs issued certificates under s40(3) of the Crown Proceedings Act 1947, which exclude proceedings in Northern Ireland against the Crown, and the Ministry of Defence subsequently struck out the legal actions on 4 October 1991.¹⁰

The applicants lodged an application with the Commission on 14 August 1991, on the grounds that the deaths of Daniel McCann, Mairead Farrell and Sean Savage by members of the SAS were in violation of Article 2 of the ECHR; the application was admitted and the Commission ruled by eleven votes to six that there was no violation of Article 2.¹¹

Finally, there was a submission to the European Court of Human Rights (ECtHR). The Court considered the interpretation of Article 2 and the circumstances when deprivation of life may be justified under the exceptions of Article 2(2) and stated that the use of force must be no more than ‘absolutely necessary’ and ‘strictly proportionate’ to achieving a legitimate aim. ¹² The Court ruled that there had been a proper investigation of the case which satisfied the state’s duty under Article 2. The Court stated that there had been a violation of Article 2, and that, apart from the action of the SAS soldiers it was necessary to judge the actions of those in charge of the whole operation.¹³ The Court accepted that the soldiers’ belief of having to shoot the suspects to stop them from detonating a bomb was genuine, and therefore their actions were not in violation of Article 2. However, the Court found that there was a violation of Article 2 in the control and planning of the operation; it stated that the soldiers’ reflex actions were due to lack of proper instruction and care on the part of the authorities. The Court ruled that the authorities had failed in two further ways: (a) they did not stop the suspects from entering Gibraltar, and (b) they did not consider whether the information as to the suspects having a remote control detonation device might be wrong.¹⁴ The Court did not award damages as they were satisfied that the deceased were planning a terrorist attack and compensation would have not been appropriate. However, they awarded costs.¹⁵

The application of force by the state was further examined in Andronicou¹⁶ where the ruling in McCann was followed. The academic criticism was that the exceptions in Article 2 seem to allow for an ‘absolutely necessary’ killing in order to effect an arrest but not to prevent crime.¹⁷ In a more recent case, Duggan¹⁸ the Court followed the ruling in McCann and Andronicou when deciding if the killing of a man by the police was lawful. It ruled it was lawful, based on the officer’s belief that there was imminent threat.¹⁹

More recent developments of the law in application of lethal force show that the ECtHR has introduced elements of flexibility in assessing state duties and this has widened the scope of existing limits in Article 2. ²⁰ An example can be seen in Finogenov ²¹ where the ECtHR ruled that there had been no violation of Article 2 by the state’s use of force and gas to resolve a hostage crisis; the Court stated that it can depart from the rigorous standard of ‘absolute necessity’ in cases where the authorities have to act under time pressure and where their control of the situation is minimal.²²

Footnotes

¹ David Hoffman and John Rowe QC, Human Rights in the UK (3rd edn, Pearson, 2010) 133

² Ibid

³ Ibid

⁴ Ibid, 134, 137

⁵ McCann and Others v UK (App.No. 18984/91); ¹⁹⁹⁵ ECHR 18984/91

⁶ Ibid

⁷ Ibid, 13

⁸ Ibid, 112

⁹ Ibid, 103 to 121

¹⁰ Ibid, 122 to 124

¹¹ Ibid, 141, 142

¹² Ibid, 146 to 150

¹³ Hoffman (n1) 147

¹⁴ Hoffman (n1) 147

¹⁵ McCann and Others v UK (App.No. 18984/91); ¹⁹⁹⁵ ECHR 18984/91, 220 to 222; Hoffman (n1) 92,93

¹⁶ Andronicou v Cyprus (25052/94) (1998) 25 EHRR 491 (ECHR)

¹⁷ Sweet & Maxwell, Case Comment, Human Rights – right to life – exception for defensive force where ‘absolutely necessary’ (1998) Nov, Criminal Law Review, 823-825

¹⁸ R (on the application of Duggan) v Her Majesty’s Assistant Deputy Coroner for the Northern District of Greater London ²⁰¹⁴ EWHC 3343 (Admin)

¹⁹ Ibid

²⁰ Stephen Skinner, Deference, proportionality and the Margin of Appreciation in Lethal Force Case Law under Article 2 ECHR (2014) 1 European Rights Law Review, 32-38

²¹ Finogenov v Russia (App. No. 18299/03 and 27311/03) (2011) 32; ²⁰¹¹ ECHR 18299/03

²² Ibid, related commentary, 133 Justified use of force, footnote 3