CASE OF McCANN AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 2;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

C. Russo;John Freeland;N. Valticos;R. Pekkanen

The facts set out below , established by the ORG in its report of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL below ) , are drawn mainly from the transcript of evidence given at the NORP inquest ( see paragraph CARDINAL below ) .

DATE , and probably from DATE , GPE , NORP and GPE authorities were aware that the Provisional IRA ( ORG - " IRA " ) were planning a terrorist attack on ORG . It appeared from the intelligence received and from observations made by the LOC police that the target was to be the assembly area south of FAC where ORG usually assembled to carry out the changing of the guard DATE at TIME .

Prior to CARDINAL DATE , an advisory group was formed to advise and assist Mr PERSON , the NORP Commissioner of Police ( " the Commissioner " ) . It consisted of Soldier F ( senior military adviser and officer in ORG or " ORG " ) , Soldier E ( ORG attack commander ) , Soldier G ( bomb - disposal adviser ) , PERSON ( Acting Deputy Commissioner of Police ) , Detective Chief Inspector PERSON , attached to GPE , and ORG officers . The Commissioner issued instructions for an operational order to be prepared to deal with the situation .

Soldier F and his group , including Soldier E and a number of other ORG soldiers , had arrived in GPE prior to CARDINAL DATE . Preliminary briefings had been conducted by ORG in GPE . According to the military rules of engagement ( entitled " Rules of ORG for the Military Commander in Operation Flavius " ) issued to Soldier F by ORG , the purpose of the military forces being in GPE was to assist the NORP police to arrest the IRA active service unit ( " ASU " ) should the police request such military intervention . The rules also instructed ORG to operate as directed by the Commissioner .

The rules also specified the circumstances in which the use of force by the soldiers would be permissible as follows :

" Use of force

You and your men will not use force unless requested to do so by the senior police officer(s ) designated by the GPE Police Commissioner ; or unless it is necessary to do so in order to protect life . You and your men are not then to use more force than is necessary in order to protect life ... Opening fire

You and your men may only open fire against a person if you or they have reasonable grounds for believing that he / she is currently committing , or is about to commit , an action which is likely to endanger your or their lives , or the life of any other person , and if there is no other way to prevent this .

Firing without warning

You and your men may fire without warning if the giving of a warning or any delay in firing could lead to death or injury to you or them or any other person , or if the giving of a warning is clearly impracticable .

Warning before firing

If the circumstances in paragraph CARDINAL do not apply , a warning is necessary before firing . The warning is to be as clear as possible and is to include a direction to surrender and a clear warning that fire will be opened if the direction is not obeyed . "

The operational order of the Commissioner , which was drawn up on DATE , stated that it was suspected that a terrorist attack was planned in GPE and that the target was highly probably the band and guard of ORG during a ceremonial changing of the guard at FAC on DATE . It stated that there were " indications that the method to be used is by means of explosives , probably using a car bomb " . The intention of the operation was then stated to be

" ( a ) to protect life ;

( b ) to foil the attempt ;

( c ) to arrest the offenders ;

( d ) the securing and safe custody of the prisoners " .

The methods to be employed were listed as police surveillance and having sufficient personnel suitably equipped to deal with any contingency . It was also stated that the suspects were to be arrested by using minimum force , that they were to be disarmed and that evidence was to be gathered for a court trial . Annexed to the order were , inter alia , lists of attribution of police personnel , firearms rules of engagement and a guide to firearms use by police ( see paragraphs CARDINAL and CARDINAL below ) .

A plan for evacuation of the expected area of attack was drawn up on DATE by Chief Inspector PERSON . It was to be put into effect on DATE ( DATE ) . It included arrangements to evacuate and cordon off the area around FAC to a radius of QUANTITY , identified the approach roads to be closed , detailed the necessary traffic diversions and listed the personnel to implement the plan . The plan was not , however , distributed to other officers .

The operation in GPE to counter the expected terrorist attack was run from a joint operations room in the centre of GPE . In the operations room there were CARDINAL distinct groups - the army or military group ( comprising the ORG and bomb - disposal personnel ) , a police group and the surveillance or security service group . Each had its own means of communication with personnel on the ground operated from a separate control station . The CARDINAL principal means of communication in use were , however , the CARDINAL radio - communication networks known as the surveillance net and the tactical or military net . There was a bomb - disposal net which was not busy and , while the police had a net , it was not considered secure and a telephone appears to have been used for necessary communications with the central police station .

On DATE , there was a reported sighting of the ORG in GPE in GPE . As the Commissioner was not sure how or when they would come to NORP surveillance was mounted .

At TIME DATE , the Commissioner held a briefing which was attended by officers from ORG ( including from the surveillance team Witnesses H , I , J , K , L , M and N ) , military personnel ( including Soldiers A , B , C , D , E , F and G ) and members of the NORP police ( Officers P , Q and R and Detective Chief Inspector GPE , Head of Special Branch , and Detective Constable PERSON ) .

The Commissioner conducted the police aspect of the briefing , the members of the Security Services briefed on the intelligence aspects of the operation , the head of the surveillance team covered the surveillance operation and Soldier E explained the role of the military if they were called on for assistance . It then appears that the briefing split into smaller groups , E continuing to brief the soldiers under his command but in the same location .

The Commissioner also explained the rules of engagement and firearms procedures and expressed the importance to the police of gathering evidence for a subsequent trial of the terrorists .

The briefing by the representative of the Security Services included inter alia the following assessments :

( a ) the IRA intended to attack the changing of the guard ceremony in the assembly area outside FAC on the morning of DATE ;

( b ) an ORG of CARDINAL would be sent to carry out the attack , consisting of PERSON , PERSON and a third member , later positively identified as PERSON . ORG had been previously convicted and sentenced to CARDINAL years’ imprisonment for possession of explosives . ORG had previously been convicted and sentenced to CARDINAL years’ imprisonment for causing explosions . She was known during her time in prison to have been the acknowledged leader of the IRA wing of prisoners . Savage was described as an expert bomb - maker . Photographs were shown of the CARDINAL suspects ;

( c ) the CARDINAL individuals were believed to be dangerous terrorists who would almost certainly be armed and who , if confronted by security forces , would be likely to use their weapons ;

( d ) the attack would be by way of a car bomb . It was believed that the bomb would be brought across the border in a vehicle and that it would remain hidden inside the vehicle ;

( e ) the possibility that a " blocking " car - i.e. a car not containing a bomb but parked in the assembly area in order to reserve a space for the car containing the bomb - would be used had been considered , but was thought unlikely .

This possibility was discounted , according to Senior Security Services Officer O in his evidence to the inquest , since ( CARDINAL ) it would involve CARDINAL trips ; ( CARDINAL ) it would be unnecessary since parking spaces would be available on TIME or on a DATE TIME ; ( CARDINAL ) there was the possibility that the blocking car would itself get blocked by careless parking . The assessment was that the ORG would drive in at the last moment on TIME or on TIME . On the other hand Chief Inspector PERSON , who was not present at the briefing , stated that he would not have brought in a bomb on DATE since it would be busy and difficult to find a parking place .

Various methods of detonation of the bomb were mentioned at the briefing : by timing device , by ORG ( radio - controlled improvised explosive device ) and by command wire . This last option which required placing a bomb connected to a detonator by a wire was discounted as impracticable in the circumstances . The use of a timer was , according to O , considered highly unlikely in light of the recent IRA explosion of a bomb by timer device at ORG which had resulted in a high number of civilian casualties . Use of a remote - control device was considered to be far more likely since it was safer from the point of view of the terrorist who could get away from the bomb before it exploded and was more controllable than a timer which once activated was virtually impossible to stop .

The recollection of the others present at the briefing differs on this point . The police witnesses remembered both a timer and a remote - control device being discussed . The Commissioner and his Deputy expected either type of device . Chief Inspector PERSON recalled specific mention of the remote - control device as being more likely . The surveillance officers also thought that an emphasis was placed on the use of a remote - control device .

The military witnesses in contrast appear to have been convinced that it would certainly be a remote - control device . Soldier F made no mention of a timer but stated that they were briefed that it was to be a " button job " , that is , radio - controlled so that the bomb could be detonated at the press of a button . He believed that there had been an IRA directive not to repeat the carnage of a recent bomb in LOC and to keep to a minimum the loss of life to innocent civilians . It was thought that the terrorists knew that if it rained the parade would be cancelled and in that event , if a timer was used , they would be left with a bomb that would go off indiscriminately .

Soldier E also stated that at the briefing they were informed that the bomb would be initiated by a " button job " . In answer to a question by a juror , he stated that there had been discussion with the soldiers that there was more chance that they would have to shoot to kill in view of the very short time factor which a " button job " would impose .

Soldiers A , B , C and D stated that they were told at the briefing that the device would be radio - controlled . Soldier C said that E stressed to them that it would be a " button job " .

Soldier O stated that it was considered that , if the means of detonation was by radio control , it was possible that the suspects might , if confronted , seek to detonate the device .

Soldier F also recalled that the assessment was that any one of the CARDINAL could be carrying a device . In answer to a question pointing out the inconsistency of this proposition with the assessment that the ORG wished to minimise civilian casualties , ORG stated that the terrorists would detonate in order nonetheless to achieve some degree of propaganda success . He stated that the briefing by the intelligence people was that it was likely if the terrorists were cornered they would try to explode the bomb .

Soldier E confirmed that they had been told that the CARDINAL suspects were ruthless and if confronted would resort to whatever weapons or " button jobs " they carried . He had particularly emphasised to his soldiers that there was a strong likelihood that CARDINAL of the suspects would be carrying a " button job " .

This was recalled , in substance , by Soldiers C and PERSON B did not remember being told that they would attempt to detonate if arrested but was aware of that possibility in his own mind . They were warned that the suspects were highly dangerous , dedicated and fanatical .

It does not appear that there was any discussion at the briefing as to the likely size , mode of activation or range of a remote - control device that might be expected . The soldiers appear to have received information at their own briefings . Soldier F did not know the precise size a radio detonator might be , but had been told that the device would be small enough to conceal on the person . Soldier D was told that the device could come in a small size and that it could be detonated by the pressing of just CARDINAL button .

As regards the range of the device , Soldier F said that the military were told that the equipment which the IRA had was capable of detonating a radio - controlled bomb over a distance of QUANTITY and a half .

The operations room opened at TIME . The Commissioner was on duty there from TIME . When he left , Deputy Commissioner PERSON took his place . Members of the surveillance teams were on duty in the streets of GPE as were Soldiers A , B , C and D and members of the police force involved in the operation . Soldiers A , B , C and D were in civilian clothing and were each armed with a QUANTITY pistol which was carried in the rear waistband of their trousers . Each also carried a radio concealed on their person . They were working in pairs . In each pair , CARDINAL was in radio communication on the tactical net and the other on the surveillance net . Police officers P , Q and R , who were on duty to support the soldiers in any arrest , were also in plain clothes and armed .

On DATE , at TIME , Detective Constable PERSON went to the frontier to keep observation for the CARDINAL suspects from the computer room at the NORP immigration post . He was aware of the real names of the CARDINAL suspects and had been shown photographs . The NORP officers had photographs . The computer room was at some distance from the frontier crossing point itself . The NORP officers at the immigration post showed him passports by means of a visual aid unit . It appears that they only showed him the passports of those cars containing CARDINAL men and CARDINAL woman . Several pictures were flashed up for him during the course of DATE but he did not recognise them . At the inquest , under cross - examination , he at first did not recall that he had been given any of the aliases that the CARDINAL suspects might be employing . Then , however , he thought that he remembered the name of PERSON being mentioned in relation to PERSON and that at the time he must have known the aliases of all CARDINAL , as must the NORP officers . Chief Inspector PERSON , who had briefed Huart however , had no recollection of the name of PERSON being mentioned before DATE and he only recalled the name of PERSON in respect of PERSON . However , if PERSON recalled it , he did not doubt that it was so .

On the GPE side of the border , the customs officers and police normally on duty were not informed or involved in the surveillance on the basis that this would involve information being provided to an excessive number of people . No steps were taken to slow down the line of cars as they entered or to scrutinise all passports since it was felt that this might put the suspects on guard . There was , however , a separate surveillance team at the border and , in the area of the airfield nearby , an arrest group . Witness M who led a surveillance team at the frontier expressed disappointment at the apparent lack of co - operation between the various groups involved in GPE but he understood that matters were arranged that way as a matter of security .

At the inquest , Chief Inspector PERSON stated , when pressed about the failure to take more scrupulous measures on the GPE side ,

" In this particular case , we are talking about dangerous terrorists . We were talking about a very , very major and delicate operation - an operation that had to succeed . I think the only way it could have succeeded is to allow the terrorists to come in and for the terrorists to have been dealt with in the way they were dealt with as far as the surveillance is concerned . "

While Soldiers E and F made reference to the preferred military option as being to intercept and arrest the suspects in the frontier area , it appears not to have been pursued with any conviction , on the assumption that identification would not be possible in light of the brief time available for identification to be made ( TIME per car ) and the lack of prior warning from the NORP side .

Soldier F stated that the military option had been refined down to the preferred option of arresting the suspects when they were on foot in the assembly area , to disarm them and then to defuse the bomb . He referred also to CARDINAL key indicators formulated by ORG with a view to guiding the Commissioner :

if a car was driven into GPE and parked in the assembly area by an identified member of the active service unit ;

if a car was driven into the assembly area by an ORG member without prior warning ;

the presence in GPE of the other members of the ORG ;

if there was clear indication that terrorists having parked their car bomb intended to leave GPE , that is to say , they were heading for the border .

The plan was for an arrest to be carried out once all the members of the ORG were present and identified and they had parked a car which they intended to leave . Any earlier action was considered premature as likely to raise suspicion in any unapprehended members of the ORG with possible risk resulting and as leaving no evidence for the police to use in court .

Detective Constable PERSON was on surveillance duty in a bank which had a view over the area in which the car driven in by the terrorists was expected to be parked . At TIME , he heard a report over the surveillance net that a car had parked in a parking space in the assembly area under observation . A member of ORG commented that the driver had taken time to get out and fiddled with something between the seats . PERSON saw the man lock the car door and walk away towards FAC . CARDINAL of the ORG officers present consulted a colleague as to possible identification but neither was sure . A field officer was requested to confirm the identity . DC PERSON could not himself identify the man from his position .

Witness N of the ORG team on surveillance in the car - park in the assembly area recalled that at TIME a white ORG car drove up and parked , the driver getting out after TIME and walking away . A young man resembling the suspect was spotted next at TIME in the area . Witness H , who was sent to verify his identification , saw the suspect at about that time and recognised him as Savage without difficulty . ORG also saw the suspect at the rear of PERSON and at TIME reported over the radio to the operations room that he identified him as PERSON and also as the man who had earlier parked the car in the assembly area .

Officer Q who was on duty on the street recalled hearing over the surveillance net at TIME that Savage had been identified .

The Commissioner however did not recollect being notified about the identification of Savage until he arrived in the operations room at TIME . GPE did not recall hearing anything about PERSON either until it was reported that he had met up with CARDINAL other suspects at TIME . Soldiers E and F recalled however that a possible sighting of Savage was reported at TIME . Soldier G also refers to the later sighting at TIME as the first identification of Savage .

There appears to have been a certain time - lag between information on the ground either being received in the operations room or being passed on . Soldiers E and F may have been more aware than the Commissioner of events since they were monitoring closely the information coming in over the nets , which apparently was not audible to the Commissioner where he sat at a table away from the control stations . DATE . The suspect was followed for TIME by Witness H who recalled that the suspect was using anti - surveillance techniques such as employing devious routes through the side streets . Witness N was also following him , for TIME , and considered that he was alert and taking precautions , for example stopping round the corner at the end of alleyways to see who followed .

Witness M who was leading the surveillance at the border stated that CARDINAL suspects passed the frontier at TIME though apparently they were initially not clearly identified . They were on foot and reportedly taking counter - surveillance measures ( PERSON looking back frequently ) . Their progress into GPE was followed .

At TIME , Soldiers E and F recalled a message being received that there was a possible sighting of GPE and PERSON entering on foot . The Commissioner was immediately informed .

At TIME , it was reported to the operations room that the suspects PERSON and PERSON had met with a second man identified as the suspect PERSON and that the CARDINAL were looking at a white ORG car in the car - park in the assembly area .

Witness H stated that the CARDINAL suspects spent some considerable time staring across to where a car had been parked , as if , in his assessment , they were studying it to make sure it was absolutely right for the effect of the bomb . PERSON also witnessed the CARDINAL suspects meeting in the area of the car - park , stating that all CARDINAL turned and stared towards where the car was parked . He gave the time TIME . He stated that the ORG made identification of all CARDINAL at this moment .

At this moment , the possibility of effecting an arrest was considered . There were different recollections . Mr GPE stated that he was asked whether he would hand over control to the military for the arrest but that he asked whether the suspects had been positively identified ; he was told that there was PERCENT identification . Almost immediately the CARDINAL suspects moved away from the car through FAC . He recalled that the movement of the CARDINAL suspects towards the south gave rise to some discussion as to whether this indicated that the CARDINAL suspects were on reconnaissance and might return for the car . It was for this reason that the decision was taken not to arrest at this point .

At TIME , Mr GPE rang the Commissioner to inform him that it was more and more likely to be ORG and PERSON . When the Commissioner arrived shortly afterwards , Mr GPE informed him that the suspects PERSON and PERSON had met up with a third person thought to be Savage and that an arrest had almost been made .

The Commissioner asked for positive identification of the CARDINAL suspects . Identification was confirmed by TIME when it was reported to the operations room that the CARDINAL suspects had returned to the assembly area and gone past looking at the car again . The CARDINAL suspects continued north and away from the car . Soldiers E and F recalled that control was passed to the military but immediately taken back as the Commissioner requested further verification of the identities of the suspects . The confirmation of identity which the Commissioner had requested was received almost immediately .

After the CARDINAL ORG identities had been confirmed and they had moved away from the assembly area , Soldier G examined the suspect car . He conducted an examination from the exterior without touching the car . He described it as a newish - looking white ORG . He detected nothing untoward inside the car or anything visibly out of place or concealed under the seats . He noted that the aerial of the car , which was rusty , was out of place with the age of the car . He was in the area for TIME . He returned to the operations room and reported to the Commissioner that he regarded the car as a " suspect car bomb " . At the inquest , he explained that this was a term of art for a car parked in suspicious circumstances where there is every reason to believe that it is a car bomb and that it could not be said that it was not a car bomb .

DATE . The Commissioner recalled that G had reported that it was a suspect car bomb since there was an old aerial situated centrally of a relatively new car . He stated that as a result they treated it as a " possible car bomb " .

Soldier F referred to the aerial as rendering the car suspicious and stated that this information was passed on to all the parties on the ground .

Soldier E was more categorical and stated that as far as G could tell " from a cursory visual examination he was able to confirm our suspicion that they were dealing with a car bomb " .

Soldier A stated that he believed MONEY that there was a bomb in the debussing area , that the suspects had remote - control devices and were probably armed . This was what he had been told over the radio . Soldier C recalled that it had been confirmed by Soldier E that there was a device in GPE ’s LOC which could be detonated by CARDINAL of CARDINAL suspects who was more likely to be Savage because he had been seen " fiddling " with something in the car earlier . He had also been told of the indication of an old aerial on a new car .

Soldier D said that it had been confirmed to him by Soldier E that there was a bomb there . To his recollection , no one told them that there was a possibility that the CARDINAL suspects might not be carrying the remote - control devices with them on the DATE or that possibly they had not brought a bomb in . He had been told by Soldier E - whom he fully trusted - that there was a bomb in the car .

At the inquest Soldier G was described as being the bomb - disposal adviser . He had experience of dealing with car bombs in GPE but at the inquest he stated in reply to various questions that he was neither a radio - communications expert nor an explosives expert . He had not thought of de - activating the suspect bomb by unscrewing the aerial from the car . When it was put to him in cross - examination , he agreed that to have attempted to unscrew the aerial would have been potentially dangerous .

After receiving the report from Soldier G and in view of the fact that the CARDINAL suspects were continuing northwards leaving the car behind , the Commissioner decided that the CARDINAL suspects should be arrested on suspicion of conspiracy to murder . At TIME , he signed a form requesting the military to intercept and apprehend the suspects . The form , which had been provided in advance by the military , stated :

" I , PERSON , Commissioner of Police , having considered the terrorist situation in GPE 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 . "

After the form was signed , Soldier F walked across to the tactical net and issued instructions that the military should intervene .

Soldier E ascertained the positions of the soldiers by radio . Soldiers C and D had been visually monitoring the movement of the CARDINAL suspects in FAC and FAC . Soldiers A and B were making their way north through FAC and into the GPE tunnel . The soldiers were informed that control had passed to them to make an arrest .

The evidence at the inquest given by the soldiers and Police Officer R and ORG was that the soldiers had practised arrest procedures on several occasions with the police before DATE . According to these rehearsals , the soldiers were to approach the suspects to within a close distance , cover the suspects with their pistols and shout " Stop . Police . Hands up . " or words to that effect . They would then make the suspects lie on the ground with their arms away from their bodies until the police moved in to carry out a formal arrest . Further , ORG stated that special efforts had been made to identify a suitable place in GPE for the terrorists to be held in custody following their arrest .

On reaching the junction of ORG with ORG , the CARDINAL suspects crossed the road and stopped on the other side talking . Officer R , observing , saw them appear to exchange newspapers . At this point , Soldiers C and D were approaching the junction from ORG . Soldiers A and B emerging from GPE tunnel also saw the CARDINAL suspects at the junction from their position where the pathway to the tunnel joined ORG .

As the soldiers converged on the junction , however , Savage split away from suspects ORG and PERSON turning south towards the GPE tunnel . ORG and PERSON continued north up the right - hand pavement of FAC .

Savage passed Soldiers A and B , brushing against the shoulder of PERSON B was about to turn to effect the arrest but A told him that they should continue towards suspects PERSON and PERSON , knowing that C and D were in the area and that they would arrest Savage . Soldiers C and D , aware that A and B were following suspects PERSON and PERSON , crossed over from ORG and followed Savage .

The evidence of Soldiers A and B at the inquest was to the following effect .

Soldiers A and B continued north up FAC after ORG and PERSON , walking at a brisk pace to close the distance . PERSON was walking on the right of PERSON on the inside of the pavement . He was wearing white trousers and a white shirt , without any jacket . PERSON was dressed in a skirt and jacket and was carrying a large handbag .

When Soldier A was QUANTITY ( though maybe closer ) behind PERSON on the inside of the pavement , ORG looked back over his left shoulder . ORG appeared to look directly at A and the smile left his face , as if he had a realisation of who A was and that he was a threat .

Soldier A drew his pistol , intending to shout a warning to stop at the same time , though he was uncertain if the words actually came out . ORG ’s hand moved suddenly and aggressively across the front of his body . A thought that he was going for the button to detonate the bomb and opened fire . He shot CARDINAL round into ORG ’s back from a distance of QUANTITY ( though maybe it may have been closer ) . Out of the corner of his eye , A saw a movement by PERSON . ORG had been walking on the left of ORG on the side of the pavement next to the road . A saw her make a CARDINAL turn to the right towards PERSON , grabbing for her handbag which was under her left arm . A thought that she was also going for a button and shot CARDINAL round into her back . He did not disagree when it was put to him that the forensic evidence suggested that he may have shot from a distance of QUANTITY ( see paragraph CARDINAL below ) . Then A turned back to PERSON and shot him once more in the body and twice in the head . A was not aware of B opening fire as this was happening . He fired a total of CARDINAL shots .

Soldier B was approaching directly behind PERSON on the road side of the pavement . He was watching her . When they were CARDINAL metres away and closing , he saw in his peripheral vision that PERSON turned his head to look over his shoulder . He heard what he presumed was a shout from A which he thought was the start of the arrest process . At almost the same instant , there was firing to his right . Simultaneously , PERSON made a sharp movement to her right , drawing the bag which she had under her left arm across her body . He could not see her hands or the bag and feared that she was going for the button . He opened fire on ORG . He deemed that ORG was in a threatening position and was unable to see his hands and switched fire to ORG . Then he turned back to PERSON and continued firing until he was certain that she was no longer a threat , namely , her hands away from her body . He fired a total of CARDINAL shots .

Both soldiers denied that ORG or ORG made any attempt to surrender with their hands up in the air or that they fired at the CARDINAL suspects when they were lying on the ground . At the inquest , Soldier A stated expressly that his intention had been to kill ORG " to stop him becoming a threat and detonating that bomb " .

The shooting took place on the pavement in front of a ORG petrol station in FAC .

After the shooting , the soldiers put on berets so they would be recognised by the police . They noticed a police car , with its siren going , coming south from the sundial down the far side of PERSON . A number of policemen jumped out of the car and leapt the central barrier . Soldier A still had his pistol in his hand . He put his hands up in the air and shouted " Police " . A recalled hearing shooting from behind as the police car was approaching .

While neither of the soldiers was aware of the police car or siren until after the shooting , the majority of witnesses , including the police officers P , Q and R who were in the vicinity to support the soldiers in the arrest and a number of the surveillance team as well as civilian witnesses , recalled that the sound of the police siren preceded , if only by a very short time , the sound of the gunfire . Officers P and Q , who were watching from a relatively close distance , considered that ORG and PERSON reacted to the sound of the siren : Q was of the opinion that it was the siren that caused PERSON and ORG to stop and turn .

The arrival of the police car at the scene was an unintended occurrence . After the Commissioner had handed over control to the military at TIME , he instructed PERSON to ensure that there was police transport available . PERSON telephoned Chief Inspector PERSON at FAC , who in turn instructed the Controller Police Constable PERSON to recall the duty police car . The ORG recorded the call at TIME . He radioed the patrol car informing the officers that they were to return immediately . He did not know where the car was at the time or what the reason for the recall was . When Inspector PERSON who was in the car asked if it was urgent , the PERSON told him it was a priority message and further instructions would be given on arrival .

At the time of the message , the police car was waiting in a queue of traffic in ORG . PERSON told the driver to put on siren and beacons . The car pulled out into the opposite lane to overtake the queue of traffic . They cut back into the proper lane at the lights at the junction with PERSON and continued north along FAC in the outer lane . As they passed the ORG garage , the CARDINAL policemen in the car heard shots . PERSON instructed the driver to continue . When he looked back , he saw QUANTITY persons lying on the pavement . The car went round the sundial roundabout and returned to stop on the other side of the road opposite the ORG garage . The police siren was on during this time . When the car stopped , the CARDINAL policemen got out , CARDINAL of them jumping the central barrier and NORP walking round to arrive at the scene .

Officers P , Q and R were in the vicinity of the ORG petrol station and also arrived quickly on the scene of the ORG and PERSON shootings . Officers P and R placed their jackets over the bodies . Officer P dropped his gun while crouched and had to replace it in his holster . Officer Q and PERSON carried out a search of the bodies .

DATE . The shooting took place on a fine DATE TIME , when there were many people out on the streets and the roads were busy with traffic . The ORG garage was also overlooked by a number of apartment buildings . The shooting consequently was witnessed by a considerable number of people , including police officers involved in the operation , police officers who happened to pass the area on other duties , members of the surveillance team and a number of civilians and off - duty policemen .

Almost all the witnesses who gave evidence at the inquest recalled that ORG had carried her bag under her right arm , not as stated by Soldiers A and B under her left arm . The Coroner commented in his summing - up to the jury that this might have had significance with regard to the alleged justification of the soldiers for opening fire , namely , the alleged movement of the bag across the front of her body .

More significantly , CARDINAL witnesses , CARDINAL of whom gave an interview on the controversial television documentary concerning the events " Death on GPE , gave evidence which suggested that PERSON and PERSON had been shot while lying on the ground . They stated that they had witnessed the shooting from apartment buildings overlooking the ORG petrol station ( see paragraph CARDINAL below ) .

PERSON saw a man lying on a pavement with another nearby with his hands outstretched : while she did not see a gun she heard shots which she thought came from that direction . After the noise , the man whom she had thought was shooting appeared to put something inside his jacket . When shown a photograph of the aftermath of the scene , PERSON failed to identify either Soldier A or B as the man whom she thought that she had seen shooting .

Mr Proetta saw a girl put her hands up though he thought it was more in shock than in surrender . After she had been shot and fallen to the ground , he heard another fusillade of shots . He assumed that the men nearby were continuing to fire but agreed that there was an echo in the area and that the sound could have come from the GPE tunnel area .

PERSON saw a man and a woman raise their hands over their shoulders with open palms . They were shot , according to her recollection , by men who jumped the barrier . When the bodies were on the ground , she heard further shots and saw a gun in the hand of a man crouching nearby , though she did not see any smoke or cartridges ejecting from the gun . She assumed since she saw a gun that the shots came from it . It also appears that once the bodies fell they were obscured from her view by a low wall and all she saw was a man pointing in their direction .

Mr PERSON recalled seeing a man reeling backwards under fire with his hands thrown back .

None of the other witnesses saw PERSON or PERSON put their hands up or the soldiers shoot at the bodies on the ground .

Witness I , a member of the surveillance team , stated that he saw ORG and PERSON shot when they were almost on the ground , but not on the ground .

While the soldiers were not sure that any words of warning were uttered by ORG , CARDINAL witnesses ( Officers P and Q , Witness K and Police Constable Parody ) had a clear recollection of hearing words " Police , Stop " or words to that effect .

DATE . Officer P , who was approaching from the north and had reached the perimeter wall of the ORG garage , states that he saw ORG make a move as if going for a gun and that ORG made a move towards her handbag which made him think that she was going for a detonator . Officer Q , who was watching from the other side of the road , also saw PERSON make a move towards her handbag , as did Police Constable Parody , an off - duty policeman watching from an overlooking apartment .

At the inquest the evidence of Soldiers C and D was to the following effect .

DATE . After the CARDINAL suspects had split up at the junction , Soldier D crossed the road and followed PERSON who was heading towards the GPE tunnel . Savage was wearing jeans , shirt and a jacket . Soldier C was briefly held up on the other side of the road by traffic on the busy road but was catching up as D closed in on Savage . D intended to arrest by getting slightly closer , drawing his pistol and shouting " Stop . Police . Hands up " . When D was QUANTITY away , he felt that he needed to get closer because there were too many people about and there was a lady directly in line . Before D could get closer however , he heard gunfire to the rear . At the same time , C shouted " Stop " . Savage spun round and his arm went down towards his right hand hip area . D believed that PERSON was going for a detonator . He used one hand to push the lady out of line and opened fire from CARDINAL three metres away . D fired CARDINAL rounds at rapid rate , initially aiming into the centre of Savage ’s body , with DATE at his head . Savage corkscrewed as he fell . D acknowledged that it was possible that PERSON ’s head was inches away from the ground as he finished firing . He kept firing until PERSON was motionless on the ground and his hands were away from his body .

Soldier C recalled following after PERSON , slightly behind PERSON was QUANTITY from the entrance to the tunnel but maybe more . C ’s intention was to move forward to make arrest when he heard shots to his left rear from the direction in which ORG and ORG had headed . Savage spun round . C shouted " Stop " and drew his pistol . PERSON moved his right arm down to the area of his jacket pocket and adopted a threatening and aggressive stance . C opened fire since he feared PERSON was about to detonate the bomb . He saw something bulky in PERSON ’s right hand pocket which he believed to be a detonator button . He was QUANTITY from Savage . He fired CARDINAL times as Savage spiralled down , aiming at the mass of his body . CARDINAL shot went into his neck and another into his head as he fell . C continued firing until he was sure that Savage had gone down and was no longer in a position to initiate a device .

At the inquest , both soldiers stated under cross - examination that once it became necessary to open fire they would continue shooting until the person was no longer a threat . C agreed that the best way to ensure this result was to kill . D stated that he was firing at Savage to kill him and that this was the way that all soldiers were trained . Both soldiers , however , denied that they had shot Savage while he was on the ground .

Soldier E ( the attack commander ) stated that the intention at the moment of opening fire was to kill since this was the only way to remove the threat . He added that this was the standard followed by any soldier in the army who opens fire .

The soldiers put on berets after the incident to identify themselves to the police .

Witnesses H , I and J had been involved in surveillance of the CARDINAL suspects in or about the ORG PERSON area .

Witness H had observed Soldiers A and B moving after ORG and PERSON up FAC . He moved to follow PERSON whom he noticed on the corner about to turn into the alleyway leading to the GPE tunnel . He indicated Savage to Soldiers C and D who were accompanying him at this point . While he was moving to follow ORG saw the ORG and PERSON shooting from a distance . He continued to follow after PERSON , who had gone into the alleyway . He heard a siren , a shout of " Stop " and saw PERSON spin round . The soldiers were QUANTITY away from Savage . H then turned away and did not witness the shooting itself .

Witness I had met with Witness H and Soldier D and had confirmed that Savage had gone towards the GPE tunnel . Witness I entered the alleyway after the shooting had begun . He saw CARDINAL or CARDINAL shots being fired at Savage who was on the ground . He saw CARDINAL soldier firing from a distance of CARDINAL , QUANTITY . He did not see the soldier put his foot on ORG ’s chest while shooting .

Witness J had followed after Savage when he had separated from ORG and PERSON . When PERSON was QUANTITY into the alleyway near a large tree , she heard noise of gunfire from behind and at that same time a police siren in fairly close proximity . Savage spun round very quickly at the sound of gunfire , looking very stunned . J turned away and did not see the shooting . When she turned round again , she saw PERSON on his back and a soldier standing over him saying , " Call the police " .

Mr PERSON witnessed part of the shooting but as he fell to the ground himself and later took cover behind a car he saw only part of the incident . He did not recall Savage running . When he saw the soldier standing over Savage , there were no more shots .

The evidence of Mr PERSON was surrounded by the most controversy . A handwritten statement made by him appears to have been used by ORG in its documentary " Death on LOC ( see paragraph CARDINAL below ) . The draft of an affidavit , prepared by a lawyer acting for ORG who interviewed Mr PERSON , but not approved by him , was also used for the script of the programme . In them , he alleged that while in a friend ’s car on the way to the frontier via ORG , he passed the GPE tunnel . He heard " crackers " and saw a man bleeding on the floor . He saw another man showing an ORG card and wearing a black beret who had his foot on the dying man ’s throat and was shouting , " Stop . It ’s OK . It ’s the police " . At that instant , the man fired a further CARDINAL shots . At the inquest , he stated that the part of the statement relating to the shooting was a lie that he had made up . He appeared considerably confused and contradicted himself frequently . When it was pointed out to him that until the inquest it had not become known that the soldiers wore berets ( no newspaper report had mentioned the detail ) , he supposed that he must have heard it in the street . When asked at the inquest why he had made up the statement , he referred to previous illness , pressure at work and the desire to stop being telephoned by a person who was asking him to give an interview to the media .

Miss PERSON claimed that she was in the path leading from the tunnel and that she was between PERSON and the first of the soldiers as the firing began , though not in the line of fire . She recalled that PERSON was running and thought that he was shot in the back as he faced towards the tunnel . She did not see him shot on the ground . Her account contained a number of apparent discrepancies with the evidence of other witnesses ; she said the soldier shot with his left hand whereas he was in fact right - handed ; no one else described PERSON as running ; and she described the body as falling with feet towards the nearby tree rather than his head which was the way all the other witnesses on the scene described it . The Coroner in his summing - up thought that it might be possible to reconcile her account by the fact that Miss PERSON may have not been looking at Savage as he spun round to face the soldiers and that by the time she did look he was spinning round towards the tunnel in reaction to the firing . CARDINAL . Mr Bullock and his wife stated that a man pushed past them as they walked up ORG to the junction and that they saw that he had a gun down the back of his trousers . They saw him meet up with another man , also with a gun in his trousers , on the corner of the alleyway to the Landport tunnel . The men were watching the shooting outside the ORG garage and , when the shooting stopped , they turned and ran out of sight . After that there was another long burst of shooting .

Another witness , Mr PERSON , however , who was in a car in the traffic queue in ORG and who remembered seeing Mr Bullock dive for cover , cast doubts on his version . In particular , he stated that Mr PERSON was not near the end of ORG but further away from the ORG garage ( QUANTITY away ) and that he had dived for cover as soon as there was the sound of shooting . He agreed that he had also seen persons crouching looking from behind a wall at the entrance to the pathway leading to the tunnel .

At TIME , E received a message in the operations room that apprehension of the CARDINAL suspects had taken place . It was not clear at that stage whether they had been arrested or shot . By TIME , the report was received in the operations room that the CARDINAL suspects had been shot .

At TIME , Soldier F handed a form to the Commissioner returning control . According to the transcript of the evidence given by the Commissioner at the inquest , this form addressed to him by Soldier F stated that " at TIME on DATE a military assault force was completed at the military option in respect of the terrorist bombing ORG in GPE . Control is hereby handed back to ORG " . Deputy Commissioner PERSON telephoned to FAC for the evacuation plans to be put into effect . Instructions were also given with a view to taking charge of the scenes of the incidents . Soldier G was also instructed to commence the clearance of the car .

After the shooting , the bodies of the CARDINAL suspects and ORG ’s handbag were searched . No weapons or detonating devices were discovered .

At the ORG garage scene , the shell cases and cartridges were picked up without marking their location or otherwise recording their position . The positions of the bodies were not marked .

At the scene of the Savage shooting , only some of the cartridge positions were marked . No police photographs were taken of the bodies’ positions . Inspector PERSON had made a chalk outline of the position of ORG ’s body . Within that outline , there were MONEY , CARDINAL in the area of the head .

Chief Inspector PERSON ordered a general recall of personnel and went directly to the assembly area to begin cordoning it off . The fire brigade also arrived at the assembly area .

The bomb - disposal team opened the suspect white ORG car but found no explosive device or bomb . The area was declared safe between TIME .

Chief Inspector PERSON was appointed in charge of the investigation .

Inside PERSON ’s handbag was found a key ring with CARDINAL keys and a tag bearing a registration number MACARDINALAF . This information was passed at TIME to the NORP police who commenced a search for the car on the suspicion that it might contain explosives . During TIME DATE , the NORP police found a red ORG with that registration number in GPE . Inside the car were found keys for another car , registration number MACARDINALAJ , with a rental agreement indicating that the car had been rented at TIME on DATE by PERSON , the name on the passport carried in PERSON ’s handbag .

At TIME on DATE , a ORG car with registration number MACARDINALAJ was discovered in a basement car - park in GPE . It was opened by the GPE bomb - disposal squad and found to contain an explosive device in the boot concealed in the spare - wheel compartment . The device consisted of CARDINAL packages of Semtex explosive ( altogether QUANTITY ) to which were attached CARDINAL detonators and around which were packed CARDINAL rounds of ammunition . There were CARDINAL timers marked TIME and TIME QUANTITY respectively . The device was not primed or connected .

In the report compiled by the NORP police on the device dated GPE DATE , it was concluded that there was a double activating system to ensure explosion even if CARDINAL of the timers failed ; the explosive was hidden in the spare - wheel space to avoid detection on passing the NORP / NORP customs ; the quantity of explosive and use of cartridges as shrapnel indicated the terrorists were aiming for greatest effect ; and that it was believed that the device was set to explode at the time of the military parade on CARDINAL DATE .

Chief Inspector PERSON , who acted also as Coroner ’s Officer , traced and interviewed witnesses of the shooting of the CARDINAL suspects . Police officers visited residences in the area knocking on doors and returning a second time when persons were absent . The Attorney - General made CARDINAL or CARDINAL appeals to the public to come forward . At the inquest , Inspector PERSON commented that the public appeared more than usually reluctant to come forward to give statements to the police .

A post - mortem was conducted in respect of the CARDINAL deceased suspects on DATE . Professor PERSON , a highly qualified pathologist from GPE , carried out the procedure . His report was provided to a pathologist , Professor PERSON , instructed by the applicants . PERSON was later made at the inquest by both pathologists with regard to defects in the post - mortem procedures . In particular , the bodies had been stripped before Professor PERSON saw them , depriving him of possible aid in establishing entry and exit wounds , there had been no X - ray facilities and Professor PERSON had not later been provided either with a full set of photographs for reference , or the forensic and ballistics reports .

An inquest by ORG into the killings was opened on DATE . The families of the deceased ( which included the applicants ) were represented , as were the ORG soldiers and ORG . The inquest was presided over by the Coroner , who sat with a jury chosen from the local population .

ORG . Prior to the inquest , CARDINAL certificates to the effect that certain information should not , in the public interest , be disclosed , were issued by the Secretary of ORG for ORG , the Secretary of ORG and the Deputy Governor of GPE , dated respectively CARDINAL DATE , DATE and DATE . These stated that the public interest required that the following categories of information be protected from disclosure :

In the case of the CARDINAL 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 DATE ;

( 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 .

In the case of ORG witnesses , the objection was to the disclosure of information which would reveal :

( a ) the identities of members of ORG , and details of their deployment , training and equipment ;

( b ) all sources of intelligence information ;

( c ) all details of the activities and operations of ORG .

As was , however , expressly made clear in the certificates , no objection was taken to the giving of evidence by either military or ORG 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 DATE and the circumstances surrounding them , including evidence relating to the transfer of control to the military power .

The inquest lasted until DATE and during DATE it sat , evidence was heard from CARDINAL witnesses , including the soldiers , police officers and surveillance personnel involved in the operation . Evidence was also heard from pathologists , forensic scientists and experts in relation to the detonation of explosive devices .

Evidence was given by Professor PERSON , the pathologist who had conducted the post - mortem on the deceased on DATE and also by Professor PERSON called on behalf of the applicants ( see paragraph CARDINAL above ) .

Concerning PERSON , it was found that she had been shot CARDINAL times in the back , from a distance of QUANTITY according to Professor PERSON . She had CARDINAL wounds to the head and neck . The facial injuries suggested that either the entire body or at least the upper part of the body was turned towards the shooter . A reasonable scenario consistent with the wounds was that she received the shots to the face while facing the shooter , then fell away and received the shots to the back . Professor PERSON agreed that the upward trajectory of the bullets that hit PERSON indicated that she was going down or was down when she received them . Altogether she had been shot CARDINAL times .

Concerning ORG , he had been shot in the back twice and had CARDINAL wounds in the head . The wound on the top of the head suggested that the chest wounds came before the head wound and that he was down or very far down when it was inflicted . The shots to the body were at about a CARDINAL angle . He had been hit by CARDINAL bullets . CARDINAL . Concerning Savage , he had been hit by CARDINAL bullets . He had CARDINAL wounds to the head and neck , CARDINAL on the front of the chest , CARDINAL on the back of the chest , CARDINAL on the top of each shoulder , CARDINAL in the abdomen , CARDINAL in the left leg , CARDINAL in the right arm and CARDINAL on the left hand . The position of the entry wounds suggested that some of the wounds were received facing the shooter . But the wounds in the chest had entered at the back of the chest . Professor PERSON agreed that PERSON was " riddled with bullets " and that " it was like a frenzied attack " . He agreed that it would be reasonable to suppose from the strike marks on the pavement that bullets were fired into ORG ’s head as he lay on the ground . Professor PERSON also agreed that the evidence from strike marks on the ground and the angle and state of wounds indicated that PERSON was struck by bullets when lying on his back on the ground by a person shooting standing towards his feet . He insisted under examination by counsel for the soldiers that the CARDINAL strike marks on the ground within the chalk outline corresponded with wounds to the head . In his view " those wounds must have been inflicted when either the head was on the ground or very close to the ground indeed " and when pressed " within inches of the ground " . CARDINAL . Forensic evidence at the inquest

A forensic scientist specialising in firearms had examined the clothing of the CARDINAL deceased for , inter alia , powder deposits which would indicate that shots had been fired at close range . He found signs of partly burnt propellant powder on the upper - right back of PERSON ’s jacket and upper - left front of ORG shirt which suggested close - range firing . He conducted tests which indicated that such a result was only obtained with a PERSON pistol at a range of QUANTITY . The density on ORG ’s jacket indicated a muzzle - to - target range of QUANTITY and on ORG shirt of QUANTITY .

Issues arose at the inquest as to whether , even if the CARDINAL suspects had been carrying remote - control devices , they would have been able to detonate the suspected bomb which was QUANTITY from the place where they were shot . Also it was questioned whether the soldiers could reasonably have expected that the applicants could have concealed the devices on their persons without it being apparent and whether in fact the device could have been detonated by pressing CARDINAL button .

Mr GPE gave evidence for the Crown . He was a forensic scientist employed at ORG at ORG , with DATE experience of explosives . He produced an ORG ICCARDINAL transmitter , as an example of a device used in GPE , which was the size of a standard commercial walkie - talkie . It was also produced in evidence by the Government to both ORG in the GPE proceedings ( see paragraph CARDINAL below ) .

While referring to the factors which could affect the range ( for example , terrain , weather conditions ) Mr GPE stated that the equipment could , in optimum conditions , operate up to a QUANTITY range . In his opinion , the aerial on the suspect car could have received a signal though its efficiency would have been fairly poor as it was not the right length for the frequency . He considered that one would have to assume that from the distance of QUANTITY a bomb could be detonated by remote control using that aerial .

The applicants called PERSON , who held a masters degree and doctorate in engineering and was a licensed radio operator . He had been involved in CARDINAL IRA trials in GPE . He had conducted tests with similar receivers along the route taken by the CARDINAL suspects . He referred to the fact that there was rising ground between the sites of the shootings and the assembly area as well as a thick wall and a considerable number of buildings . The ORG used encoders and decoders on their devices to prevent spurious signals detonating their bombs : this required that a good clean signal be received . He also stated that the bomb could have been neutralised by removing the car aerial and that such a manoeuvre would not have destabilised the explosive device .

PERSON also explained how the transmitter would operate . Assuming the dial setting the frequency was already set , it would be necessary to activate the on / off power switch , followed by the on / off switch on the encoder and then a third button would have to be pressed in order to transmit . While it would be possible to set the device so that it would be necessary to press CARDINAL button ( the transmit button ) in order to detonate a bomb , this would require leaving the power switches on for both the transmitter and the encoder with the risk that the batteries would run down . There would also be the risk that the device might be set off accidentally by being bumped in the street or being hit by a bullet or by a person falling awkwardly so as to hit the edge of a pavement or bench .

Captain PERSON was called by the lawyer representing the soldiers to rebut this evidence . He was a member of ORG and had experience in ORG radio in combat net radio spectrum . He carried out tests to see if voice communications were possible on an ORG - type radio in the area of or from the ORG garage to FAC . The equipment used was not identical to that of PERSON . He stated that it was possible to receive both voice communication and a single audio tone at the site of the shootings from the assembly area . He did not however use an encoder and his equipment was matched and compatible . Mr GPE was also recalled . He gave the opinion that if a weak voice communication could be received then the signal would be sufficient to set off a bomb .

It appears to have been accepted by all that the ORG have developed the use of high - frequency devices , which require shorter aerials and have a surer line - of - sight effect . These are stated to have the characteristics suitable for detonation when the operator of the device has line of sight of the bomb and carry with them less possibility of interference from other radio sources or countermeasures . No examples were known or at least given as to this type of remote - control detonation being used other than in line - of - sight conditions .

At the inquest , the representative of the applicants , Mr PERSON , questioned the witnesses and made submissions to the effect , inter alia , that either the decision to shoot to kill the suspects had been made by ORG prior to the incident and the soldiers were ordered to carry out the shootings , or that the operation was planned and implemented in such a way that the killing of the suspects by the soldiers was the inevitable result . In any event , in light of the circumstances , the use of lethal force by the soldiers was not necessary or , if it was necessary , the force used was excessive and therefore not justified . He maintained throughout , however , that he did not challenge that the Commissioner of Police and his officers had acted properly and in good faith .

Soldier F ( the senior military commander ) and Soldier E ( the tactical commander ) denied that there had been a plan , express or tacit , to execute the suspects . When it was put to Soldiers A , B , C and D , they also denied that they had been sent out either expressly or on the basis of " a nod or a wink " to kill the suspects .

At the conclusion of the inquest , the Coroner addressed the jury in respect of the applicable law , in particular , LAW ( see paragraph CARDINAL below ) . As inquest proceedings did not allow for the parties to make submissions to the jury , he summed up the respective propositions of the ORG representatives and the representatives of the soldiers and the ORG referring to the evidence . He concluded from the evidence given by the soldiers that when they opened fire they shot intending to kill and directed the jury as to the range of possible verdicts :

" ... If the soldiers set out DATE with the express intent to kill that would be murder and it would be right to return a verdict of unlawfully killed . Example CARDINAL : were you to find in the case of PERSON ( or any of the other CARDINAL for that matter ) that he was shot on the ground in the head after effectively being put out of action , that would be murder if you come to the conclusion that the soldiers continued to finish him off . In both cases they intended to kill not in self - defence or in the defence of others or in the course of arrest ... so it is murder and you will return a verdict of unlawfully killed . If in this second example you were to conclude that it is killing in pursuance of force used which was more than reasonably necessary , then the verdict should also be killed unlawfully but it would not have been murder . The third example I offer is precisely of that situation . If you accept the account that the soldiers’ intention was genuinely to arrest ( in the sense that they were to apprehend the CARDINAL suspects and hand them over live to the NORP police force ) and that the execution of the arrest went wrong and resulted in the CARDINAL deaths because either ( a ) force was used when it was not necessary or ( b ) the force that was used was more than was reasonably necessary , then that would not be murder ... and the verdict would be , as I say , unlawfully killed . CARDINAL : if you are satisfied that the soldiers were acting properly but nevertheless the operation was mounted to encompass the deaths of the CARDINAL suspects to the ignorance of the soldiers , then you would also bring in a verdict of unlawfully killed .

... So there are CARDINAL verdicts reasonably open to you and these are :

( a ) ORG unlawfully , that is unlawful homicide .

( b ) PERSON lawfully , that is justifiable , reasonable homicide .

( c ) Open verdict .

Remembering that you must be satisfied beyond reasonable doubt where the verdict of unlawfully killed is concerned , there are CARDINAL situations to consider . The first concerning the soldiers themselves , the second if they have been the unwitting tools of a plot to dispose of the CARDINAL suspects .

As to the first concerning the soldiers themselves , I must tell you that if you are not satisfied beyond a reasonable doubt that they have killed unlawfully , you have then to decide whether your verdict should be an open verdict or CARDINAL of justifiable homicide . My direction to you is that you should bring in a verdict of justifiable homicide , i.e. killed lawfully , because in the nature of the circumstances of this incident that is what you will have resolved if you do not return a verdict of unlawful homicide in respect of the soldiers themselves . That is the logic of the situation . You may reach a situation in which you can not resolve either way , in which case the only alternative is to bring in an open verdict , but I must urge you , in the exercise of your duty , to avoid this open verdict . As to the second situation where they are unwitting tools , the same applies ... "

The jury returned verdicts of lawful killing by a majority of CARDINAL to CARDINAL .

The applicants were dissatisfied with these verdicts and commenced actions in ORG in GPE against ORG 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 DATE .

On DATE the Secretary of ORG for Foreign and Commonwealth Affairs issued certificates under section CARDINAL ( CARDINAL ) a of LAW , as amended by LAW . LAW ) b of the same LAW excludes proceedings in GPE against the Crown in respect of liability arising otherwise than " in respect of Her ORG in GPE " . A similar exemption applies to the ORG in GPE pursuant to the DATE Order . A certificate by the Secretary of ORG to that effect is conclusive . The certificates stated in this case that any alleged liability of the ORG arose neither in respect of Her ORG in GPE , nor in respect of Her ORG in GPE .

ORG 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 DATE , but withdrawn on CARDINAL DATE , after 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 DATE .

On DATE CARDINAL ORG broadcast its documentary entitled " Death on the Rock " ( see paragraph CARDINAL above ) , during which a reconstruction was made of the alleged surveillance of the ORG car by the NORP police and witnesses to the shootings described what they had seen , including allegations that PERSON and PERSON had been shot while on the ground . A statement by an anonymous witness was read out to the effect that PERSON had been shot by a man who had his foot on his chest . ORG had rejected a request made by ORG Secretary to postpone the programme until after the holding of the inquest into the deaths .

While an invitation had been made by the GPE police for a NORP police officer to attend the inquest to give evidence relating to the role of the NORP police , he did not attend , apparently since he did not receive permission from his superiors .

The Government provided the ORG with a copy of a statement made by Chief Inspector PERSON , a police officer in GPE , dated DATE . According to this statement , the GPE police had at DATE provided the NORP police with photographs of the possible members of the ORG , named as PERSON , PERSON and PERSON . The CARDINAL individuals were observed arriving at FAC on DATE but trace of them was lost as they left . There was then a search to locate the CARDINAL suspects during DATE .

This statement provided by the Government was not included in the evidence submitted at the inquest , as the Coroner declined to admit it following the objection by Mr PERSON who considered that it constituted hearsay in the absence of any police officer from GPE giving evidence in person .

This statement , dated DATE and supplied on behalf of the applicants , was made by a journalist who acted as consultant to the makers of the GPE Television programme " Death on the Rock " . He stated that the white ORG car used by the ORG was under surveillance by the NORP authorities as it proceeded down the coast towards GPE . ORG is alleged to have been conducted by CARDINAL police cars which " leapfrogged " to avoid suspicion , by helicopter and by agents at fixed observation points . The details of the car ’s movements were transmitted to the authorities in GPE who were aware of the car ’s arrival at the border . He refers to the source of this information as being Mr PERSON , a spokesman for ORG in GPE , with whom he and Mr PERSON , a reporter for ORG , had an interview lasting from TIME on DATE .

The applicants intended submitting this statement as evidence before the inquest . The Coroner decided however that it should also be excluded as hearsay on the same basis as the statement relied upon by the Government ( see paragraph CARDINAL above ) .

An ORG transmitter device was provided to ORG by the Government with an improvised encoder attached . The dimensions of the transmitter are QUANTITY x QUANTITY ; the encoder ( which is usually taped to the transmitter and which can be contained in a small flat NORP tin ) is QUANTITY . The aerial from the transmitter is QUANTITY long .

CARDINAL The applicants also submitted a further opinion of PERSON , dated DATE , in which he reiterated his view that it would have been impossible for the CARDINAL suspects to have detonated a bomb in the target area from the location where they were shot using an ORG or any other conceivable concealable transmitter / aerial combination , which he maintains must have been well known to the authorities . He also drew attention to the fact that the strength of a hand - held transmitter is severely attenuated when held close to the human body ; when transmitting it should be held well clear of the body with the aerial as high as possible .

In its report of CARDINAL DATE , the ORG made the following findings on questions of fact :

- that the suspects were effectively allowed to enter GPE to be picked up by the surveillance operatives in place in strategic locations for that purpose ( at paragraph CARDINAL ) ;

- that there was no evidence to support the applicants’ contention of a premeditated design to kill Mr GPE , PERSON and Mr Savage ( at paragraph CARDINAL ) ;

- that there was no convincing support for any allegation that the soldiers shot Mr PERSON and PERSON when they were attempting to surrender or when they were lying on the ground . However the soldiers carried out the shooting from close proximity . The forensic evidence indicated a distance of QUANTITY in the case of PERSON ( at paragraphs GPE and CARDINAL ) ;

- PERSON and Mr PERSON were shot by Soldiers A and B at close range after the CARDINAL suspects had made what appeared to the soldiers to be threatening movements . They were shot as they fell to the ground but not when they were lying on the ground ( at paragraph CARDINAL ) ;

- it was probably either the sound of the police siren or the sound of the shooting of PERSON and PERSON at the ORG garage , or indeed both , which caused PERSON to turn round to face the soldiers who were behind him . It was not likely that Soldiers C and D witnessed the shooting of PERSON and PERSON before proceeding in pursuit of PERSON ( at paragraph CARDINAL ) ;

- there was insufficient material to rebut the version of the shooting given by Soldiers C and D. Mr Savage was shot at close range until he hit the ground and probably in the instant as or after he hit the ground . This conclusion was supported by the ORG evidence at the subsequent inquest ( at CARDINAL and CARDINAL ) ;

- Soldiers A to D opened fire with the purpose of preventing the threat of detonation of a car bomb in the centre of GPE by suspects who were known to them to be terrorists with a history of previous involvement with explosives ( at paragraph CARDINAL ) ;

- a timer must in all probability have been mentioned at the Commissioner ’s operational briefing . For whatever reason , however , it was not a factor which was taken into account in the soldiers’ view of the operation ( at paragraph CARDINAL ) .

LAW provides :

" CARDINAL . 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 .

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 relevant domestic case - law establishes that the reasonableness of the use of force has to be decided on the basis of the facts which the user of the force honestly believed to exist : this involves the subjective test as to what the user believed and an objective test as to whether he had reasonable grounds for that belief . Given that honest and reasonable belief , it must then be determined whether it was reasonable to use the force in question in the prevention of crime or to effect an arrest ( see , for example , ORG v. ORG [ DATE ] ORG CARDINAL ; R v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL , at p. CARDINAL ; and R v. PERSON [ DATE ] ORG CARDINAL , at p. CARDINAL ) .

The test of whether the use of force is reasonable , whether in self - defence or to prevent crime or effect an arrest , is a strict CARDINAL . It was described in the following terms in the report of ORG appointed to consider the law relating to indictable offences ( [ DATE ] CARDINAL ORG CARDINAL , at p. CARDINAL ) :

" We take one great principle of the common law to be , that though it sanctions the defence of a man ’s person , liberty and property against illegal violence , and permits the use of force to prevent crimes to preserve the public peace and to bring offenders to justice , yet all this is subject to the restriction that the force used is necessary ; that is , that the mischief sought to be prevented could not be prevented by less violent means ; and that the mischief done by or which might reasonably be anticipated from the force used is not disproportionate to the injury or mischief , which it is intended to prevent . "

Lord Justice McGonigal in Attorney General for GPE Reference ( [ DATE ] ORG CARDINAL ( ORG ) ) stated his understanding of this approach as follows ( at p. CARDINAL ) :

" ... it appears to me that , when one is considering whether force used in any particular circumstances was reasonable , the test of reasonableness should be determined in the manner set out in that paragraph . It raises CARDINAL questions :

( a ) Could the mischief sought to be prevented have been prevented by less violent means ?

( b ) Was the mischief done or which could reasonably be anticipated from the force used disproportionate to the injury or mischief which it was intended to prevent ?

These are questions to be determined objectively but based on the actions of reasonable men who act in the circumstances and in the light of the beliefs which the accused honestly believed existed and held . ORG is not reasonable if

( a ) greater than that necessary , or

( b ) if the injury it causes is disproportionately greater than the evil to be prevented . "

The document annexed to the operational order of the Commissioner of Police entitled " Firearms - rules of engagement " provided in so far as relevant :

" General rules

Do not use more force than necessary to achieve your objective .

If you use firearms you should do so with care for the safety of persons in the vicinity .

Warning before firing

( a ) A warning should , if practicable , be given before opening fire . It should be as loud as possible and must include an order to stop attacking and a statement that fire will be opened if the orders are not obeyed .

( b ) You may fire without warning in circumstances where the giving of a warning or any delay in firing could lead to death or serious injury to a person whom it is your duty to protect , or to yourself , or to another member in your operation .

Opening fire

You may open fire against a hostage taker

( a ) If he is using a firearm or any other weapon or exploding a device and there is a danger that you or any member involved in the operation , or a person whom it is your duty to protect , may be killed or seriously injured .

( b ) If he is about to use a firearm or any other weapon or about to explode an explosive device and his action is likely to endanger life or cause serious injury to you or another member involved in the operation , or any person whom it is your duty to protect ...

If he is in the course of placing an explosive charge in or near any vehicle , ship , building or installation which , if exploded , would endanger life or cause serious injury to you or another member involved in the operation or to any person whom it is your duty to protect and there is no other way to protect those in danger ... "

Also attached to the operational order was a guide to police officers in the use of firearms which read :

" Firearms : Use by Police .

The object of any police firearms operation is that the armed criminal is arrested with the least possible danger to all concerned . It is the first duty of the police to protect the general public , but the police should not endanger their lives or the lives of their colleagues for the sake of attempting to make an early arrest . The physical welfare of a criminal armed with a firearm should not be given greater consideration than that of a police officer , and unnecessary risks must not be taken by the police . In their full use of firearms , as in the use of any force , the police are controlled by the restrictions imposed by the law . The most important point which emerges from any study of the law on this subject is that the responsibility is an individual one . Any police officer who uses a firearm may be answerable to the courts or to a coroner ’s inquest and , if his actions were unlawful ( or improper ) , then he as an individual may be charged with murder , manslaughter or unlawful wounding . Similarly , if his use of a firearm was unlawful or negligent the individual could find himself defending a civil case in which substantial damages were being claimed against him . That a similar claim could be made against the Commissioner of Police will not relieve the individual of his liabilities .

The fact that a police officer used his firearms under the orders of a superior does not , of itself , exempt him from criminal liability . When a police officer is issued with a firearm he is not thereby given any form of authority to use it otherwise than strictly in accordance with the law . Similarly , when an officer is briefed about an operation , information about a criminal may indicate that he is desperate and dangerous . Whilst this will be CARDINAL of the factors to consider it does not of itself justify shooting at him .

The final responsibility for his actions rests on the individual and therefore the final decision about whether a shot will or will not be fired at a particular moment can only be made by the individual . That decision must be made with a clear knowledge of the law on the subject and in the light of the conditions prevailing at the time . "

ORG on ORG ( " ORG Firearms Principles " ) were adopted on DATE by ORG on ORG and the Treatment of Offenders .

DATE Firearms Principles provides , inter alia , that " intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life " .

Other relevant provisions provide as follows :

" ... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms , with sufficient time for the warnings to be observed , unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons , or would be clearly inappropriate or pointless in the circumstances of the incident . "

" ... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances . In cases of death and serious injury or other grave consequences , a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control . "

" Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process , including a judicial process . In the event of the death of such persons , this provision shall apply to their dependants accordingly . "

Article CARDINAL of ORG on ORG , Arbitrary and Summary Executions , adopted on DATE by ORG CARDINAL/CARDINAL , ( " ORG on ORG " ) provides , inter alia , that :

" There shall be a thorough , prompt and impartial investigation of all suspected cases of extra - legal , arbitrary and summary executions , including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ... "

Articles CARDINAL to CARDINAL contain a series of detailed requirements that should be observed by investigative procedures into such deaths .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant was born in DATE and lived in GPE .

On DATE the applicant announced , as required by LAW , to ORG his intention to organise a demonstration on DATE on FAC in GPE , in front of ORG .

On DATE ORG refused to deal with the application . It observed that on DATE the area in question had been declared , by ORG itself and for an indefinite period of time , a “ security operational zone ” ( biztonsági műveleti terület ) , in view of the tumultuous events in GPE in DATE . It was as such outside ORG jurisdiction as regards the prohibition of , or acquiescence in , a demonstration . On DATE ORG dismissed the applicant ’s request for judicial review , observing in essence that no decision on the merits of the case had ever been adopted by the administrative authorities DATE which excluded such a review .

On DATE the Deputy Head of ORG dismissed the applicant ’s further complaint . On DATE the applicant filed an action with ORG , challenging the decisions of both DATE and DATE .

On DATE the Head of GPE Police dismissed the applicant ’s renewed complaint . On DATE the Deputy Head of ORG partly reversed this decision and instructed ORG to substitute the indefinite measure in question with one of definite duration . On DATE ORG dismissed the applicant ’s ensuing action , essentially endorsing the police authorities’ earlier reasoning . It pointed out that the proceedings only concerned the police ’s decision on non - competence and did not constitute review of the police ’s original decision declaring FAC a “ security operational zone ” .

Upon a further complaint , on DATE ORG quashed the decisions of DATE and CARDINAL DATE and remitted the case to ORG . In reaction to the applicant ’s petition for review , on DATE ORG quashed the decision of DATE and remitted the case to ORG . The latter ’s procedure was then interrupted on DATE on account of the applicant ’s death . The applicant ’s son and heir joined the proceedings as successor on CARDINAL DATE .

The Government submitted that the subject matter of the litigation pending before ORG was the police ’s original decision declaring FAC a “ security operational zone ” .

In another case concerning the same area , on DATE a Mr PERSON challenged the police ’s very decision to declare FAC a “ security operational zone ” . On DATE the Budapest Police Commander rejected his complaint , but this decision was quashed by the ORG Commander on DATE . In the resumed administrative proceedings , on DATE the GPE Commander again rejected the complaint . On DATE the ORG Commander upheld this decision . PERSON challenged this ruling in court .

Mr PERSON ’s action was dismissed by ORG . However , on appeal ORG quashed this decision , together with the one of DATE .

In the resumed second - instance administrative proceedings , on DATE the ORG Commander again upheld the GPE Commander ’s decision . PERSON requested judicial review .

On DATE ORG quashed , in judgment no . CARDINAL.K.CARDINAL.CARDINAL/CARDINAL/CARDINAL . , both the first- and the second - instance administrative decisions and remitted the case to the GPE Commander . The court pointed out that the impugned decisions did not contain any concrete elements establishing the necessity and proportionality of maintaining the “ security operational zone ” after the prolongation of DATE . Nor did they address the plaintiff ’s suggestion that the mere fencing - off of ORG ’s immediate vicinity – rather than the global ban on FAC – would have been sufficient in the circumstances .

In the resumed first - instance administrative proceedings , on DATE the GPE Commander partly sustained PERSON complaint , noting that , in the absence of evidence to the contrary , the proportionality of the impugned measure had successfully been challenged .


The applicants are the PERSON family , all GPE nationals , resident in GPE :

( CARDINAL ) NORP Dr PERSON , born in DATE ; husband

( CARDINAL ) PERSON , born in DATE ; wife ; and their children

( CARDINAL ) Mr PERSON , born in DATE ,

( CARDINAL ) PERSON , born in DATE ,

( CARDINAL ) Mr PERSON , born in DATE ,

( CARDINAL ) Mr PERSON , born in DATE .

They are represented before the ORG by PERSON , of FAC , GPE .

The facts of the case , as submitted by the applicants , may be summarised as follows .

The first and second applicants decided to put themselves forward to adopt a child . In DATE , they were approved by ORG as prospective adopters and were matched with a child , PERSON , who was born on DATE and in the care of ORG ( “ the local authority ” ) . They stated that they made it clear that they could not envisage adopting a “ boisterous ” child or any child who presented challenging behavioural or physical disabilities .

During the matching process , the applicants were not shown inter alia ORG DATE school report which noted that there were “ constant arguments when he was with others ” and that he “ can be aggressive ” , a report of a previous foster carer which depicted J. as a very troublesome presence in the family home and a report by ORG which stated that J. would find it harder to find adoptive parents given his history of difficult behaviour . The documents on PERSON ’s background gave a clear picture of a troublesome and difficult child with a disturbed background , far from the child whom the applicants envisaged they would be caring for .

On DATE , ORG moved into the applicants’ home . It was immediately apparent that he had serious behavioural problems , that he was prone to persistent foul moods and required constant one to CARDINAL attention .

The applicants began to discover information that demonstrated that J. had not been a suitable child for them to adopt and felt very strongly that they had been severely misled by the local authority . Had full and candid disclosure been made they felt that they would never have accepted J. as suitable for their family . For example , they were not told of the possibility that J. might have had a genetic disposition to fragile X syndrome until shortly after he arrived in their home ; they were not told until DATE that he had been removed from his first foster placement after an alleged sexual incident between him and the foster mother ’s daughter ; and they were not told until DATE that it was the unsubstantiated belief of a previous social worker that J. had been abused at a pre - verbal stage . Nor had they been told of the correct number of previous placements ( there had been CARDINAL , not CARDINAL ) or of the extent of disruption that J. had caused in these placements .

In DATE , the applicants reached the painful decision to discontinue their relationship with J. However social worker delays in responding to the situation left the applicants in the impossible situation of finding that they did not want to adopt him but having to keep him as the local authority could not place him anywhere else . In DATE , they decided that he could remain with them as a foster child while attending boarding school most of DATE .

On DATE , the applicants initiated the local authority ’s internal complaints procedure complaining about their poor social work practices and also seeking access to the files to ensure the records accurately reflected the difficulties surrounding the placement . Their complaints were upheld in DATE and the applicants received reimbursement of their legal costs of MONEY .

Following further disputes with the local authority about payment of ORG boarding school fees , the applicants applied for a residence order for J. in DATE . This order was made on DATE .

J. has remained difficult throughout his teenage DATE and exhibits disturbed and disordered behaviour .

The applicants took legal advice concerning their remedies in respect of the local authority ’s failings in their case .

Notes of a consultation with ORG on DATE referred to the case - law which indicated that it was problematic to establish that a local authority owed a duty of care to foster parents in the area of child care . A pending case of PERSON v. ORG ( DATE WLR CARDINAL ) was expected to clarify if a cause of action could arise in a similar situation . It was also pointed out that difficulties arose concerning the ability of the applicants to demonstrate that they had suffered damage , as it would be necessary to show that there had been economic loss or a psychiatric condition caused to the parents or the other children .

On DATE , ORG issued its judgment in the case of PERSON v. ORG , holding that the foster GPE claim against the local authority could not be struck out and should proceed on the merits .

On DATE , advice from ORG noted that recent authorities indicated that the applicants might have an arguable claim that the local authority owed them a duty of care in respect of the information which they imparted about any child offered for fostering . However , the difficulty with their claim was that they had not suffered any damage recognised by law . They had not suffered any physical injury and had been able to protect their own children against J. Unlike the foster parents in PERSON v. ORG , they had not needed psychiatric treatment or been forced to abandon paid employment or otherwise incurred any overall financial loss . She therefore advised that there was no basis on which the courts would accept that they had suffered any damage of a kind that the local authority had a duty to prevent or of a kind that was recoverable .