Case: McCann v. United Kingdom (1995; Euro court of human rights) [pp.

3-17]

Facts: 3 known Irish terrorists (IRA agents) were in Gibraltar (tip of Spain,
but British territory). The military had information about a possible terrorist
attack, and followed them. It was believed the terrorists would use a car bomb
detonated by a remote control. While soldiers were following them, it seemed as
though they were preparing for the attack, and wanted to arrest them. As one
soldier was about to do so, it seemed to him that one of the possible terrorists
moved his hand as if he would press a button to detonate a bomb, and soldier shot
him. Then another possible terrorist looked as if she would press a bomb and she
was shot as well. The 3rd terrorist was also shot dead. It was later discovered
that they did have a bomb in a car, and would have been used. The estate of the
deceased brought an inquest against the soldiers and UK govt. Jury returned the
verdict of lawful killing. Decedents' estates then brought the case to the Court
of European Human rights.

*Inquest - An inquiry by a coroner or medical examiner, sometimes with the aid of

a jury, into the manner of death of a person who has died under suspicious
circumstances, or who has died in prison.

Issue: Whether the killings by the soldiers were reasonably justified in the
circumstances as opposed to whether they were absolutely necessary under Article 2
para. 2 of the European Human Rights Convention.

Holding: there was a breach of the convention; the force used was not absolutely
necessary.

Reasoning: Court believes from the evidence, that although it is true there was
a possible terrorist attack coming, the soldiers should have used greater caution
before shooting. "Their reflex action in this vital respect lacks the degree of
caution in the use of firearms to be expected , even when dealing with dangerous
terrorist suspects, and stands in marked contrast to the standard of care
reflected in the instructions in the use of firearms." This failure by the
authorities suggests a lack of appropriate care in the control and organization of
the arrest operation. Court not persuaded that deadly force was absolutely
necessary, and so it was a violation.

DISSENT - The inquest jury listened to 79 witnesses, and so their opinion of a

lawful killing should be highly valued. The use of force did not exceed what was
absolutely necessary.

European Court of Human Rights (France) - an international court

○ Established by an international agreeement
○ Court applies international law
○ Protects the right to life
• Why should UK govt pay McCann judgment? What would be the repercussions?

Notes

• Art 2 - protects rights against unlawful violence, except

○ In defense of a person from unlawful violence
○ In order to effect lawful arrest or prevent escape of person lawfully
detained
○ In action lawfully taken for the purpose of quelling a riot or
insurrection
• Difference in the courts was a question of law, not of facts. Facts decided by
jury upheld.
• UK court said soldiers were reasonably justified, but Euro court of human rights
requires killing to be absolutely necessary
• Why argued that killings weren't necessary?
○ Premeditated
○ Incompetence
§ Operation itself
○ Could have been arrested at border
§ i.e. the operation was negligent and incompetent
§ Security knew about terrorist, should have been stopped
at the border, but let enter, and let fact pattern ensue and resulted in killing,
so it was negligent & incompetent
§ Court agrees with this
§ Specific soldiers - negligent & incompetent
• Damages - UK gov't owes family members of terrorists the damages
○ A lot of outrage and controversy, but this is the law. Although they were
terrorists, there were other ways to handle this
○ UK powerful - but under the enforcement regime of this court (ECHR).
○ Upholds decision although there was a lot of controversy
• European convention of human rights
○ Product of post-WWII politics, in wake of Nazi atrocities
§ Countries get together to enforce human rights
§ Also regional treaties passed
§ Predates E.U., which is more economic
○ A court of last resort, like supreme court. Must exhaust domestic remedies
first.