Exclusive: UK cleared over killing of IRA gang: SAS 'did not use unnecessary force' in Gibraltar

THE EUROPEAN Commission of Human Rights has decided that the SAS soldiers who shot dead three unarmed IRA members in Gibraltar in 1988 did not use unnecessary force in violation of the European human rights convention.

But the case has been referred to the Commission's superior body, the European Court of Human Rights, for a final decision on whether there was a breach of Article 2 of the convention, which safeguards the right to life. The Court is not obliged to follow the Commission's finding, but in the past it has done so in four cases out of five.

The 17 members of the Strasbourg-based Commission were sharply divided in the case. Eleven found in favour of the British Government but six dissented, led by the Commission's Irish member, Jane Liddy. She attacked the Government's case, saying it was a 'chain of lack of care, omissions, errors and misleading information' which contained fundamental inconsistencies and inexplicable omissions.

The decision to re-run the case before the Court, together with the split in the Commission, ensure that the six-year controversy which has surrounded the case will be extended. The Court is expected to take more than a year to reach its verdict.

The case was taken by relatives of the three IRA members - Mairead Farrell, Sean Savage and Daniel McCann - who were killed by the SAS as they walked through Gibraltar in March 1988. The authorities argued that the soldiers were justified in shooting because of the danger that the IRA members were armed and the risk that they might have pushed a button to detonate a car bomb.

The IRA unit had earlier parked a car in a Gibraltar street. After they were shot it was found they were unarmed and had no detonating device. Last Friday, it emerged that a key figure in the security force operation was Brian Fitzsimons, the senior RUC Special Branch officer who was one of the casualties in the Mull of Kintyre helicopter crash.

The applicants had alleged there had been either serious negligence or premeditation in the killings, but in its majority verdict the Commission said it found no evidence of this.

The Commission accepted the evidence of the SAS soldiers, who said Farrell and McCann had made threatening movements. It said it found no convincing support for the allegation that the SAS continued to shoot the IRA members when they were attempting to surrender or lying on the ground.

It said: 'Farrell and McCann were shot as they fell to the ground but not when they were lying on the ground. Savage was shot at close range until he hit the ground and probably in the instants as or after he had hit the ground.' The Commission declared itself satisifed that the soldiers had opened fire with the purpose of preventing the threat of detonation of a car bomb. It ruled that the shootings 'can be considered as absolutely necessary for the legitimate aim of the defence of others from unlawful violence'.

In her dissenting opinion, Ms Liddy said that however abhorrent the murder and maiming planned by the IRA, its members were entitled to have their right to life respected.

She said she had examined a sample transmitter and decoder supplied to the Commission by the British Government, and found it a bulky and heavy object which Savage and McCann, dressed as they were, could not have hidden on their persons.

There was a fundamental inconsistency, she said, between the argument that the IRA members had to be shot because they might press a button and the fact that 27 bullets had been fired at them, any of which could have struck such the button and detonated a bomb.

There was a further inconsistency between the decision to allow a suspected car-bomb into Gibraltar, as the authorities had done, and the fear that the IRA members could set it off at any time. There was also no adequate explanation as to why the suspects could not have been surrounded and held with their arms pinioned. She concluded that the three could have been arrested without the use of lethal force.

Concern about the Gibraltar shootings has been expressed by the Irish government, the Catholic church, the Labour Party and various civil liberties organisations. At the time, the incident gave rise to serious violence in Belfast.

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