CEDH · CASELAW;REPORTS;ENG — 4 mars 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 18984/91               Margaret McCANN, Daniel FARRELL and John SAVAGE                                   against                             the United Kingdom   REPORT OF THE COMMISSION                          (adopted on 4 March 1994)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 19-171) . . . . . . . . . . . . . . . . . . . . . . . 3         A.    Introduction            (paras. 19-20) . . . . . . . . . . . . . . . . . . . . . 3         B.    Particular circumstances of the case            (paras. 25-159). . . . . . . . . . . . . . . . . . . . . 3         C.    Evidence before the Commission            (paras. 160-168) . . . . . . . . . . . . . . . . . . . .28         D.    Relevant domestic law and practice            (paras. 169-171) . . . . . . . . . . . . . . . . . . . .30   III.   OPINION OF THE COMMISSION       (paras. 172-251). . . . . . . . . . . . . . . . . . . . . . .32         A.    Complaints declared admissible            (para. 172). . . . . . . . . . . . . . . . . . . . . . .32         B.    Point at issue            (para. 173). . . . . . . . . . . . . . . . . . . . . . .32         C.    Evaluation of the evidence            (paras. 174-179) . . . . . . . . . . . . . . . . . . . .32         D.    Article 2 of the Convention            (para. 180). . . . . . . . . . . . . . . . . . . . . . .33         E.    General Considerations            (paras. 181-184) . . . . . . . . . . . . . . . . . . . .33         F.    The Present Case            (paras. 185-186) . . . . . . . . . . . . . . . . . . . .34         G.    "Everyone's right to life shall be protected by law"            (paras. 187-201) . . . . . . . . . . . . . . . . . . . .34         H.    Requirements of Article 2 para. 2            (paras. 202-250) . . . . . . . . . . . . . . . . . . . .37              i.     The conspiracy theory                  (paras. 208-216) . . . . . . . . . . . . . . . . .38              ii.    Conduct of the operation                  (paras. 217-250) . . . . . . . . . . . . . . . . .40                    a.    The actions of the soldiers                       (paras. 218-233). . . . . . . . . . . . . . .40                    b.    Operational responsibility                       (paras. 234-250). . . . . . . . . . . . . . .43         CONCLUSION       (para. 251) . . . . . . . . . . . . . . . . . . . . . . . . .46         DISSENTING OPINION OF MR. S. TRECHSEL JOINED BY       MR. F. ERMACORA . . . . . . . . . . . . . . . . . . . . . . .47         DISSENTING OPINION OF MRS. J. LIDDY JOINED BY       MM. G. B. REFFI AND M. A. NOWICKI . . . . . . . . . . . . . .48         DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . . . .52   APPENDIX I        HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .55   APPENDIX II       DECISION ON ADMISSIBILITY. . . . . . . . . . . . .56   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicants are Margaret McCann, Daniel Farrell and John Savage who are Irish and United Kingdom citizens born in 1945, 1914 and 1952 respectively and resident in Belfast. They are represented by Mr. Douwe Korff, Counsel, and Mr. P.J. McGrory & Co., Solicitors practising in Belfast.   3.     The application is directed against the United Kingdom.   The Government are represented by their Agent, Mrs. Audrey Glover, of the Foreign and Commonwealth Office.   4.     The case concerns the applicants' complaint that the killings of Daniel McCann, Mairead Farrell and Sean Savage (aged respectively 30, 31 and 24) by   members of the SAS (Special Air Service) in Gibraltar on 6 March 1988 were in violation of Article 2 of the Convention.   B.     The proceedings   5.     The application was introduced on 14 August 1991 and registered on 24 October 1991.   6.     On 20 February 1992, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the application.   7.     The Government submitted their written observations on 11 August 1992.   The applicants submitted their written observations in reply on 13 January 1993.   8.     The Commission granted the applicants legal aid on 23 October 1992.   9.     On 2 April 1993, the Commission decided to invite the parties to an oral hearing on the admissibility and merits.   10.    At the hearing which was held on 3 September 1993, the Government were represented by   Mrs. Audrey Glover, Agent, Mr. Stephen Richards, Counsel, Mr. James Eadie, Counsel, Mr. Nicholas Lavender, Counsel, and Mr. David Pickup, Mr. Michael Venables and Mr. David Seymour as advisers.   The applicants were represented by Mr. Douwe Korff, Counsel, and Mr. P.J.B. McGrory, Solicitor.   11.    On 3 September 1993, the Commission declared the application admissible. The parties were then invited to submit any additional observations on the merits of the application.   12.    On 12 November 1993, the Government submitted further observations on the merits. On 16 and 17 November 1993, the applicants submitted additional observations.   13.    After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 10 September 1993 and 12 November 1993. In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   14.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO   15.    The text of the Report was adopted by the Commission on 4   March 1994 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Introduction   19.    The events in this case have been surrounded with considerable controversy. They are however to a large extent not in dispute between the parties to this application. With regard to the circumstances surrounding the deaths of the three terrorist suspects, the Commission has established the facts from the evidence at its disposal, including the observations, documents and exhibits submitted by the parties and the transcript of the Inquest into the deaths held on Gibraltar.   20.    The evidence given in the Inquest is summarised in the section below. Insofar as there is need to resolve conflicts of evidence in the determination of the issues under the Convention, the Commission's findings appear in its Opinion (see paras. 172-251).   B.     Particular circumstances of the case   Background to the events on Gibraltar   21.    Prior to 4 March 1988, and probably from at least the beginning of the year, the United Kingdom, Spanish and Gibraltar authorities were aware that the Provisional IRA (PIRA) were planning a terrorist attack on Gibraltar. From the intelligence received and from observations made by the Gibraltar police, it became apparent that the target was to be the assembly area south of Ince's Hall where the Royal Anglian Regiment usually assembled to carry out the changing of the guard every Tuesday at 11.00.   22.    Prior to 4 March 1988,   an advisory group was formed to advise and assist Mr. Joseph Canepa, the Gibraltar Commissioner of Police ("the Commissioner"). It consisted of Soldier F (senior military adviser and officer in the Special Air Service or "SAS"), Soldier E (SAS attack commander), Soldier G (bomb disposal or EOD adviser), Mr. Colombo (Acting Deputy Commissioner of Police), Detective Chief Inspector Ullger, attached to Special Branch and Security Service officers. The Commissioner issued instructions for an operational order to be prepared to deal with the situation.   23.    Soldier F and his group, including Soldier E and a number of other SAS soldiers, had arrived in Gibraltar prior to 4 March 1988. Preliminary briefings had been conducted by the Ministry of Defence in London. According to the Rules of Engagement issued to Soldier F by the Ministry of Defence, the purpose of the military forces being in Gibraltar was to assist the Gibraltar police in arresting the PIRA ASU (active service unit) should the police request such military intervention. The Rules also instructed F to operate as directed by the Commissioner.   24.    The Rules also specified the circumstances in which the use of force by the soldiers would be permissible:         "Use of force         4. You and your men will not use force unless requested to do so       by the senior police officer(s) designated by the Gibraltar       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         5. 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         6. 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         7. If the circumstances in paragraph 6 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."   25.    The Operational Order of the Commissioner, which was drawn up on 5 March 1988, stated that it was suspected that a terrorist attack   was planned in Gibraltar and that the target was highly probably the band and guard of the First Battalion of the Royal Anglian Regiment during a ceremonial changing of the guard. 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"   26.    The methods to be employed were listed as police surveillance, having sufficient personnel suitably equipped to deal with any contingency, to arrest the offenders using the minimum force and by disarming the offenders and the gathering of subsequent evidence for a court trial. Annexed to the order were, inter alia, lists of attribution of police personnel, firearms rules of engagement (see Relevant Domestic Law and Practice) and a guide to firearms use by police.   27.    A plan for evacuation of the expected area of attack was drawn up on 5 March 1988 by Chief Inspector Lopez. It included a plan to evacuate and cordon off the area to a radius of 200 metres, 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.   Conduct of the operation in Gibraltar   28.    The operation in Gibraltar to counter the expected terrorist attack was run from a joint operations room in or about the centre of Gibraltar. In the operations room there were three distinct groups - the army or military group (comprising the SAS 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 two principal means of communication in use were however the two 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.   First sighting of the suspects in Spain on 4 March 1988   29.    On 4 March 1988, there was a reported sighting of the ASU in Malaga in Spain.   Operational Briefing on 5 March 1988   30.    At midnight   on 5 March 1988, the Commissioner held a briefing which was attended by officers from the Security Service (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 Gibraltar police (Officers P, Q and R and Detective Chief Inspector Ullger, Head of Special Branch, and Detective Constable Viagas).   31.    The Commissioner conducted the police aspect of the briefing, the members of the Security Service 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 in smaller groups, E continuing to brief the soldiers under his command but in the same location.   32.    The Commissioner explained the rules of engagement and firearms procedures. He also expressed the importance to the police of gathering evidence for a subsequent trial of the terrorists - a particular concern mentioned was the fact that the members of the Security Service had stated that they did not normally give evidence in court and most would leave Gibraltar at the end of the operation.   33.    The briefing by the representative of the Security Services included the following assessments:   a.     PIRA intended to attack the changing of the guard ceremony on the morning of Tuesday 8 March 1988;   b.     An ASU of 3 would be sent to carry out the attack, consisting of Daniel McCann, Sean Savage and   a third member, later positively identified, as Mairead Farrell. McCann had been previously convicted and sentenced to 2 years' imprisonment for possession of explosives. Farrell had previously been convicted and sentenced to 14 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 three suspects.   c.     The   three 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 large car bomb.   e.     Use of a blocking car   34.    Consideration was given in the intelligence assessment as to whether a blocking car would be used, ie. that the terrorists would drive a car into Gibraltar before 8 March to ensure that when the car carrying the bomb arrived a parking space would be available. According to O (the senior Security Services Officer who did not attend the briefing but had briefed the representative who presented the assessment on his behalf) this possibility was discounted as less likely since it would mean the terrorists having to make 2 trips; it would not be necessary since parking spaces would be available on the night before or early on Tuesday morning itself; there was the possibility that the blocking car would itself get blocked by careless parking and also it would need two drivers which might render them more conspicuous. Use of a blocking car, on this view, seemed over- complicated and risky and so the assessment was that it was more likely that the ASU would drive in at the last moment Monday night or on Tuesday.   35.    Soldier F also recalled that the intelligence assessment was that terrorists would not employ a blocking car, but would bring the bomb in early. He however thought it would probably be at some time over the weekend or at the latest on Monday 7 March. Soldier E also thought that a blocking car was discounted and that the car which came in would contain the bomb.   36.    O's assumption that there would be no problem in respect of the terrorists finding a parking place was contradicted by Chief Inspector Lopez. He had not been at the briefing but at the Inquest stated that while the operation was geared for Monday or Tuesday, he himself would not have brought in a bomb on Tuesday since it would be busy and difficult to find a parking place.   f.     Mode of detonation of bomb   37.    Various methods of detonation of the bomb were mentioned : by timing device, by RCIED (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 impractical 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 Enniskillen 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.   38.    The recollection of the others present at the briefing differs on this point.   39.    The police witnesses remembered both a timer and remote control device being discussed. The Commissioner's recollection of the briefing was that detonation would be either by timer or remote control and was prepared for either. Deputy Commissioner Colombo, briefed by the Commissioner, was also expecting either type of device. Officer R and Chief Inspector Ullger recalled specific mention of the remote device as being more likely since it would be a more reliable and effective method. Officer P was the only officer who did not recall a timer being mentioned. Chief Inspector Ullger also recalled being shown photographs of positions on the Rock which could be suitable for a line of sight detonation.   40.    The surveillance officers at the briefing thought an emphasis was put on the use of a remote control device, with the timer being secondary. M stated that the remote control device would probably be used but that it was not definite.   41.    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" ie. radio controlled so that the bomb could be detonated at the press of a button. He referred in cross-examination at the Inquest to earlier briefings with intelligence sources concerning possible methods of detonation, stating that he believed that there had been a Provisional Army Council directive not to repeat the carnage of Enniskillen and to keep the loss of life to innocent civilians to a minimum. 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.   42.    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. Soldier G said that at the briefing they were told that it was going to be a radio-controlled car bomb. He denied that there had been discussion as to whether a radio-controlled device or a timer would be used.   43.    Soldier A recalled that they were told at the briefing that the device would be radio-controlled though from the context of the question is not apparent whether the soldiers were told this at the general briefing or by E. A stated that he remembered only the gist of the briefing, his recollections of various briefings being mixed up. Soldier B recalled being told that there was a threat from a radio- controlled bomb.   Soldier C said that a timer was never mentioned and that Soldier E stressed to them that it would be a "button job". Soldier D stated initially that they were   told that it would probably be a remote controlled device but on further question by the Coroner stated it would be a remote controlled device. He referred to having received daily updates or discussions with E.   g.     Use of device by the ASU to detonate on arrest   44.    If the means of detonation was by radio control, it was possible that the suspects might, if confronted, seek to detonate the device. This was the assessment given by O.   45.    Soldier F also recalled that the assessment was that any one of the three could be carrying a device.   In answer to a question pointing out the inconsistency of this proposition with the assessment that the IRA wished to minimise civilian casualties, F 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.   46.    Soldier E confirmed that they had been told that the three suspects were ruthless and if confronted would resort to whatever weapons or "button jobs" which they carried. He had particularly emphasised to his soldiers that there was a strong likelihood that at least one of them would be carrying a button job.   47.    Soldier B recalled being told by E that one or possibly all three would be carrying a device. They were warned that the suspects were highly dangerous, dedicated and fanatical. He did not remember being told that they would attempt to detonate if arrested but was aware of that possibility in his own mind. Soldier C said that he was told by E that the three suspects were very experienced terrorists who would not hesitate to use weapons or to detonate the bomb. His understanding was that all three would have carried a detonator. Soldier D also confirmed being told that all three might have carried a gun and detonator and that they were dangerous and fanatical.   48.    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 one button.   49.    As regarded the range of the device, Soldier F said that the military were told that the equipment which PIRA had was capable of detonating a radio-controlled bomb over a distance of a mile and a half.   Events on 6 March 1988   50.    Members of the surveillance teams were on duty in the streets of Gibraltar 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 9mm Browning 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, one 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.   51.    The operations room opened at 8.00. The Commissioner was on duty there from 10.30 to 12.30. When he left, Deputy Commissioner Colombo took his place.   Surveillance at the border   52.    On 6 March 1988, at 8.00, Detective Constable Huart went to the frontier to keep observation for the three suspects from the computer room at the Spanish immigration post. He was aware of the real names of the three suspects and had been shown photographs. The Spanish officers had photographs. The computer room was at some distance from the frontier crossing point itself. The Spanish 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 two men and one woman. Several pictures were flashed up for him during the course of the day 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 three suspects might be employing. Then,   however, he thought that he remembered the name of Coyne being mentioned in relation to Savage and that at the time he must have known the aliases of all three, as must the Spanish officers. Chief Inspector Ullger, who had briefed Huart however, had no recollection of the name of Coyne being mentioned before 6 March and he only recalled the name of Reilly in respect of McCann. However, if Huart recalled it, he did not doubt that it was so.   53.    On the Gibraltar 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 Gibraltar but he understood that matters were arranged that way as a matter of security. The Coroner commented on this aspect of the evidence in his summing-up to the jury.   54.    At the Inquest, Chief Inspector Ullger stated, when pressed about the failure to take more scrupulous measures on the Gibraltar 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."   55.    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 (10-15 seconds per car) and the alleged lack of prior warning from the Spanish side.   Arrest options: Advisory Group policy   56.    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. He referred also to four key indicators formulated by the Advisory Group with a view to guiding the Commissioner in determining how the arrest operation was to run:   i.     if a car was driven into Gibraltar and parked in the assembly area by an identified member of the ASU;   ii. (slight variation on i.) if a car was driven in by ASU member without prior warning;   iii.   the presence in Gibraltar of the other members of the ASU;   iv.    if there was clear indication that terrorists   having parked their car bomb intended to leave Gibraltar ie. they were heading for the border.   57.    The plan was for the arrest was to be carried out once all the members of the ASU 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 ASU with possible risk resulting and as leaving no evidence for the police to use in court.   Sighting of Savage   58.    Detective Constable Viagas 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 about 12.30, while Viagas was letting into the premises another person from security service, 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 the Security Service commented that the driver had taken time to get out and fiddled with something between the seats. Viagas saw the man lock the car door and walk away towards the Southport Gate. One of the Security Service officers present consulted a colleague as to possible identification but neither was sure. A field officer was requested to confirm the identity. Viagas could not himself identify the man from his position. Within half an hour, the field officer reported that the driver was not one of the suspects. This information does not appear to have been received or recalled by the personnel in the operations room.   59.    Witness N of the Security Service team on surveillance in the car park in the assembly area recalled   that at 12.45 a white Renault car drove up and parked, the driver getting out after 2-3 minutes and walking away.   60.    A young man resembling Savage was spotted next at about 14.00 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. Witness N also saw the suspect at the rear of John Mackintosh Hall and at 14.10 reported over the radio to the operations room that he identified him as Savage and also as the man who had earlier parked the car in the assembly area.   61.    Officer Q who was on duty on the street recalls hearing over the surveillance net at about 14.30 that Savage had been identified.   62.    The Commissioner however did not recollect being notified about the identification of Savage until he arrived in the operations room at 15.00. Colombo did not recall hearing anything about Savage either until it was reported that he had met up with two other suspects at about 14.50. Soldiers E and F recalled however that a possible sighting of Savage was reported at about 14.30. Soldier G also refers to the later sighting at 14.50 as the first identification of Savage.   63.    There appears to have been a certain lag in information between information on the ground either being received in the operations room or in 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.   64.    Savage was followed for approximately an hour 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 Savage, for an estimated 45 minutes, and considered that Savage was alert and taking precautions, for example, stopping round the corner at the end of alleyways to see who followed.   Sighting of McCann and Farrell   65.    Witness M who was leading the surveillance at the border stated that two suspects passed the frontier at about 14.30 though apparently they were initially not clearly identified.   They were on foot and reportedly taking counter-surveillance measures (Farrell looking back frequently). Their progress into Gibraltar was followed.   66.    At 14.30, Soldiers E and F recall a message being received that there was a possible sighting of McCann and Farrell entering on foot. Colombo rang the Commissioner from the operations room stating that two persons believed to be McCann and Farrell had been seen crossing the border on foot.   Sighting of three suspects in assembly area   67.    At about 14.50, it was reported to the operations room that the suspected McCann and Farrell had met with a second man identified as the suspect Savage and that the three were looking at a white Renault car in the car park in the assembly area. It is at this point Colombo and Soldier F recall being told that Savage was the man who had parked the car. Soldier E remembers the time as being 15.00.   68.    Witness H stated that the three suspects spent some considerable time staring across to where a car had been parked, in his assessment as if they were studying it to make sure it was absolutely right for the effect of the bomb.   69.    Detective Constable Viagas also witnessed the three suspects meeting in the area of the car park, stating that all three turned staring towards where the car was parked. He gave the time as about 14.55. He stated that the Security Services made identification of all three at this moment.   70.    At this moment, with the three suspects static in the area of a car driven in by one of them, the possibility of effecting arrest was considered. There are different recollections. Colombo 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 80% identification. Almost immediately the three suspects moved away from the car through Southport gates. Colombo recalled that the movement of the three suspects towards the south gave rise to some discussion as to whether this indicated that the three 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. He considers that he did not pass control at all to the military. Soldier F thought that control did pass but that, when the three moved away, control was returned. Soldier E also thought control passed though for not more than a few seconds. Both Soldiers A and B were informed of this apparent passing of control: at this time they were in the Main Street area not far away from the location of the suspects.   71.    At 15.00, Colombo rang the Commissioner to inform him that it was more and more likely to be McCann and Farrell. When the Commissioner arrived shortly afterwards, Colombo informed him that McCann and Farrell had met up with a third person thought to be Savage and that an arrest had almost been made.   72.    The Commissioner asked for positive identification of the three suspects. Identification was confirmed by 15.25 when it was reported to the operations room that the three suspects had returned to the assembly   area and gone past looking at the car again. The three suspects continued north and away from the car. Soldiers E and F recalled that control was passed a second time to the military but immediately taken back as the Commissioner requested further verification of the identities of the suspects. The soldiers on the ground were also aware of this momentary change of control but the Commissioner did not refer to it in his account of events at the Inquest. The confirmation of identity which the Commissioner had requested was received almost immediately.   Examination of the suspect car in the assembly area   73.    After the three suspects' identities had been confirmed and they had moved away from the assembly area, Soldier G went down to examine the suspect car. He conducted an examination from the exterior without touching the car. He described it as a newish-looking white Renault. 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 less than 2 minutes. 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 without tearing it apart it could not be said that it was not a car bomb - "it is suspicious".   74.    The Commissioner recalled that G had reported that it was a suspect 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".   75.    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.   76.    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".   77.    Soldier A stated that he believed 100% that there was a bomb in the debussing area, that the suspects had remote control devices and were probably armed. This was because of what he had been informed over radio. Soldier C recalled that it had been confirmed by Soldier E that there was a device in Ince's Hall area which could detonated by one of three suspects who was more likely to be Savage because he had been seen fiddling with 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 three suspects might not be carrying the remote control devices with them on the Sunday or that possibly they had not brought a bomb in. He had been told that there was a bomb in the car and he believed that a bomb was there because he had been informed of this by Soldier E whom D fully trusted.   78.    At the Inquest Soldier G was described as being the bomb disposal adviser. He had experience of car bombs from Northern Ireland 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.   Passing of control to military for arrest   79.    After receiving the report from Soldier G and in view of the fact that the three suspects were continuing northwards leaving the car behind, the Commissioner decided that the three suspects should be arrested on suspicion of conspiracy to murder. At 15.40, 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, Joseph Luis Canepa, Commissioner of Police, having       considered the terrorist situation in Gibraltar 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."   80.    After the   form was signed, Soldier F walked across to the tactical net and issued instructions that the military should intervene.   81.    Soldier E ascertained the positions of the soldiers by radio. Soldiers C and D had been visually monitoring the movement of the three suspects up Line Wall Road and Smith Dorrien Avenue. Soldiers A and B were making their way north through Casements Square and into the Landport tunnel. The soldiers were informed that control had passed to them to make an arrest.   82.    The evidence at the Inquest given by the soldiers and a police witness was that the soldiers had practised arrest procedures   on several occasions with the police.   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.   83.  &#