Gibraltar implications. A conflict of standards makes all the difference

The European Court of Human Rights gave its first judgment on Article 2 of the European Convention on Human Rights, the right to life, in the case of McCann and Others vs United Kingdom 27.9.95, Series A, vol 324.

The court found by a majority of ten to nine that the procedure and planning leading up to the killing in March 1988 of three members of the IRA in Gibraltar was flawed. It ruled that the SAS members, who were trained to shoot-to-kill, should have considered whether they could have taken some action short of lethal force.

This decision has considerable ramifications, not just for the use of lethal force and the law justifying it in Northern Ireland, but also in the rest of the UK and throughout the world.

Costs were awarded to the relatives' lawyers but compensation was denied because of the intentions of the three IRA members in setting out to plant a bomb.

Relatives of the deceased alleged that there was an execution plot at the highest level of command in the Ministry of Defence or the Government, or that the soldiers had been encouraged or instructed by superior offices to shoot to kill. These allegations were rejected by the court. It also rejected the suggestion that the use of the SAS in itself was evidence of a policy that the killings were intended from the outset.

The court decided that it: "must carefully scrutinise...not only whether the force used by the soldiers was strictly proportionate to the aim of protecting persons against unlawful violence but also whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force".

Thus it asked why the three men were not stopped at the Spanish border and complained that insufficient allowances were made for the possibility that the intelligence assessments were erroneous.

The court was also concerned about the training of the soldiers to shoot-to-kill (the three were hit by a total of 29 bullets) rather than to disable.

The rules of engagement for the soldiers repeated the position on the use of force set out by statute Section 3 of the Criminal Law Act 1967. The law that applied in Gibraltar is in fact closer to the one set out in Article 2 of the convention. Nevertheless, the test applied is based on what is reasonable rather than what is absolutely necessary.

The relevant parts of Article 2 of the convention state:

"(1) Everyone's right of life shall be protected by law. No one shall be deprived of his life intentionally.

(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."

The applicants submitted that the test imposed by Article 2 - "the use of force which is no more than absolutely necessary" - is a higher standard than that imposed by domestic law and the rules of engagement and on this ground alone the court should find a violation. The court said: "The difference between the two standards is not sufficiently great that a violation of Article 2 (1) could be found on this ground alone."

Nevertheless, there is a difference and the standard in the domestic law of the UK is lower. Regardless of this, it is clear that the court found a violation on the specific facts of this case and it could do so again in other cases.

There are other lethal force cases from Northern Ireland pending in Strasbourg which stem from deaths before the cease fire. Some of these cases are likely to lead to further referrals to the court.

What is more perhaps important to lawyers in the rest of the UK is the potential consequences of this case on the use of lethal force in non-terrorist cases.

First there are cases where the police have used lethal force and where, on a close analysis of the facts, the steps taken in the planning and lead up to the actual shooting do not comply with the "absolutely necessary" test.

Second, that same test will mean that if police officers continue to be trained to shoot to kill and do not even consider the option of shooting to disable, there will also be further breaches of Article 2.

Many of these cases will never be litigated or will be resolved by the courts in the UK on the basis of the "reasonable force" test. However, some cases will fail in the domestic courts because of this different standard and will subsequently succeed in Strasbourg.

It is also not difficult to conceive of cases where compensation is much more likely to be awarded to a person who has been shot while carrying a toy gun and who had no intention of injuring anyone.

More importantly, if the case had failed in the domestic court on the basis of the domestic law the court in Strasbourg would have a better chance of ruling on the (in)compatibility of that law with Article 2. In such a case, the government in question would then need to amend domestic law to bring it in line with the article.

Liberty has already been instructed in one case that may reach Strasbourg and is very happy to advise other lawyers with similar cases.