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.