England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Foskett
[2013] EWHC 498 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/10/2014

Lord Justice Richards :

1. The primary issue in this appeal is whether the use of control and restraint on persons being removed by aircraft from the United Kingdom is subject to a sufficient framework of safeguards to meet the requirements of Articles 2 and 3 of the European Convention on Human Rights ("the ECHR"). The appellant's case is that, in breach of the obligation imposed by those articles, the respondent Secretary of State has failed to develop and approve techniques for the use of force in the specific environment of an aircraft, and to train staff how to use force in that situation, so as to minimise to the greatest extent possible any risk to life or risk of harm. The policy on the use of force is also said to be unlawful under domestic law on the ground that it gives rise to an unacceptable risk of unlawful action in individual cases.
2. A secondary issue is whether the Secretary of State's decision not to publish parts of the existing policy, as set out in the Use of Force Training Manual ("the Manual"), is unlawful.
3. In relation to those issues, Foskett J dismissed the claim for judicial review brought by a claimant referred to as Z: see [2013] EWHC 498 (Admin). In granting permission to appeal, Pitchford LJ permitted the substitution of a new appellant, a woman referred to as FI who had been subject to restraint by a number of officers within an aircraft during an unsuccessful attempt to remove her in September 2011. The case does not depend, however, on the individual circumstances of either FI or the former claimant. The arguments concern the framework itself, not the use of force on a specific set of facts.
4. This judgment proceeds as follows. First, I will explain the legal basis of the use of force in effecting removals from the United Kingdom. I will then describe the Manual, the respects in which it is alleged to be deficient, and the relevant factual history. Many of those matters are dealt with at length by Foskett J, which enables me to cut back on some of the detail. Having set out the background, I will consider the issues in the appeal.

The legal basis of the use of force

5. The powers and functions of officers escorting persons in the course of removal from the United Kingdom are conferred by and regulated under Part VIII of the Immigration and Asylum Act 1999 ("the 1999 Act"). Section 156(1)(b) empowers the Secretary of State to make arrangements (referred to as "escort arrangements") for the delivery of persons from a place of detention for the purpose of their removal from the United Kingdom in accordance with directions given under the Immigration Act 1971. Section 156(2) provides that escort arrangements may provide for specified functions to be performed by "detainee custody officers". Schedule 13 makes further provision about escort arrangements. Paragraph 2 of Schedule 13 reads:

"(1) A detainee custody officer acting in accordance with escort arrangements has power … [to search etc]

…

(3) As respects a detained person for whose delivery or custody he is responsible in accordance with escort arrangements, it is the duty of a detainee custody officer –

(a) to prevent that person's escape from lawful custody;

(b) to prevent, or detect and report on, the commission or attempted commission by him of other unlawful acts;

(c) to ensure good order and discipline on his part; and

(d) to attend to his wellbeing.

…

(5) The powers conferred by sub-paragraph (1), and the powers arising by virtue of sub-paragraph (3), include power to use reasonable force where necessary."

Schedule 11 confers corresponding powers on detainee custody officers when exercising custodial functions.

6. The requirement that force is to be used only where necessary, and that the force used must be reasonable and no more than is necessary, is underlined by Rule 41 of the Detention Centre Rules 2001 and by Operating Standards issued by the UK Border Agency ("UKBA").

The Manual

7. Private security firms who contract to provide overseas escort services are required to ensure that where control and restraint procedures are used, they are those approved by the Prison Service. The approved techniques are set out in the Manual, the latest version of which was published (in redacted form) in 2006 and runs to 100 pages. The Manual is summarised at paragraphs 54-73 of Foskett J's judgment.
8. Section B of the Manual contains general guidelines on the use of force. It emphasises the need for a sound understanding of the law on the use of force and refers to the requirements of domestic law and of the ECHR, including Articles 2 and 3. Paragraph 1.1.5 states that several common principles are apparent: force may be used only when it is reasonable in all the circumstances and necessary, and the force used must be no more than is necessary and must be proportionate to the seriousness of the circumstances. In relation to proportionality, one of the points made is that the nature of incidents is so diverse that it is not realistic to cover every possible scenario, and for this reason there will be occasions when individual officers resort to techniques that are not described in the Manual. The text states that in such circumstances the actions of the officer will not necessarily be wrong, provided that they have acted reasonably and within the law; and that in all circumstances where force is used the individual concerned must account for their own decisions and actions. That last point is picked up in paragraph 1.2, on handling confrontational situations, where the further point is made that following an incident where force has been used every member of staff must record the circumstances that led up to the use of force, reasons for the level of force used, and any other relevant information relating to the circumstances. Report writing is the subject of an entire section later in the Manual (Section F).
9. Section C sets out medical considerations. Paragraph 1.1, headed "Medical warning signs", states that it is extremely important that staff involved in applying restraints or using force of any kind are aware of the signs and symptoms that may indicate that a prisoner is in distress; it may be the case that an incident should be treated as a medical emergency rather than a control and restraint incident; and a member of health care medical staff must, whenever reasonably practicable, attend every incident where staff are deployed to restrain violent or disturbed prisoners. It stresses that the onset of a serious medical condition following the application of physical or mechanical restraints is extremely rare but has been known, and prisoners in both prison and police custody have died as a result of being restrained. Details are given of the signs for which officers should look when a violent prisoner is being restrained. The text emphasises that if a medical emergency occurs the prisoner must be released from all holds at once and medical advice must be sought immediately. Paragraph 1.2 deals specifically with positional asphyxia. Among other matters, it advises that a degree of positional asphyxia can result from any restraint position in which there is restriction of the neck, chest wall or diaphragm; it sets out warning signs; and it specifies the action to be taken, namely immediately release or modify the restraint as far as practicable to effect a reduction in body wall restriction, and summon medical attention.
10. Section D concerns officers' personal safety. Among other matters, it deals with communication skills; it advises that the majority of situations where there is a potential for violence can be handled through communication; it sets out a strategy for defusing situations; and it details a variety of defensive techniques and disarming techniques, which are subject to extensive redactions.
11. Section E relates to control and restraint basic techniques. The introduction includes the following:

"1. The techniques described in this manual are basic techniques approved by the Prison Service for use by prison officers and such others for whom this training has been authorised for resolving incidents following violent and recalcitrant prisoners, and other persons.

2. It is not suggested that the appropriate response to disruptive or threatening behaviour is necessarily the use of force or that violence should necessarily be met by violence. Every opportunity should be taken to de-escalate the incident and only as a last resort should Control and Restraint techniques be used.

3. Control and Restraint Basic techniques are used by three officers to control and restrain a violent prisoner, using no more force than necessary. The use of force is only lawful if its use is reasonable and proportionate. Where fewer than three officers are present, or in the case of multiple violent prisoners less than a ratio of three officers to one violent prisoner, and it is necessary to use force immediately, staff will need to use whatever force is necessary to protect themselves and others, as long as such force is reasonable and proportionate in the circumstances as they see them.

4. The description of Control and Restraint techniques in the basic manual reflect their use in an ideal controlled environment where the techniques represent the optimum solution for resolving the incident. Operational experience will not always mirror tutorial contrived situations. The unpredictable behaviour of the prisoner requires the officer to have an open-minded approach when applying to a live incident those aspects of training experienced in a controlled environment. In the daily operation of these techniques, the local geography of the establishment or physical inability of staff to perform the techniques as described in this manual, may require staff to adapt those techniques to enable them to gain effective control of the prisoner" (emphasis in the original).

12. The first subsection within Section E relates to "planned removal". Its introduction reads:

"The deployment of a three officer team is the approved method of dealing with a violent or recalcitrant prisoner. It must only be used as a last resort after all other means of de-escalating (e.g. persuasion or negotiation) the incident, not involving the use of force, have been exhausted. The techniques to be taught in this Section of the syllabus, appertain to the formation of the team and the restraint of the prisoner.

The rest of the introduction has been redacted. It describes the key body targets for gaining control of a violent or recalcitrant prisoner."

13. It goes on to describe the role of the control and restraint supervisor, the role of the health care staff, and the formation of a three officer team, detailing the respective responsibilities of the Number 1, the Number 2 and the Number 3 in the team. For example, the Number 1 is responsible inter alia for the control and protection of the prisoner's head, whereas the responsibilities of the Numbers 2 and 3 include taking control of the prisoner's arms on their respective sides. This is followed by a description of detailed techniques, considerably redacted. Subsection 2 gives additional control techniques, whilst subsection 3 relates to a situation where the prisoner is or may be armed. Subsection 4 concerns unplanned control and restraint and includes the following:

"There may be instances when dealing with unplanned incidents that the 3-1 staff/prisoner ratio is impossible to fulfil. Staff should be aware that they have a duty of care to both staff and prisoners. Staff may need to use whatever force is necessary to protect themselves or others, as long as such force is reasonable and proportionate in the circumstances as they see them.

If one officer is present at [a] violent incident then Personal Safety should be adopted. Once there are two officers present they should use 'whatever reasonable force is necessary' in order to try to bring the situation under control. When three or more officers are present Control & Restraint techniques must be employed."

14. The witness statement of Mr Jonathan Collier, a prison officer based at the National Tactical Response Group ("the NTRG") of NOMS, states that the techniques contained within the Manual have been devised and amended by staff from within the NTRG. The Manual was last fully reviewed in 2006. Since then there has been an amendment to one technique, not relevant for present purposes. Mr Collier also describes the training that is carried out by reference to the Manual.

The alleged deficiencies in the Manual

15. The appellant's essential complaint about the Manual is that the techniques described in it and on the basis of which training is given were developed for use in and around prisons and are often unsuitable for use in the specific environment of an aircraft cabin.
16. One example is that the Manual's section on planned removals describes techniques for use by a three-officer team. For removals by aircraft, however, the ratio of contractor staff to detainees is often 2:1. Where only two staff are available for the exercise of control and restraint, one of the roles assigned by the Manual to the Numbers 1, 2 and 3 in a team (control and protection of the head, and control of each of the arms) cannot be fulfilled. The narrow aisles or rows of seats in an aircraft also mean that the three-officer techniques are often impossible. The very fact that people are seated on an aircraft is said to add to the problems, and the application of restraint to a person in a seated position is said to increase the risk of medical difficulties. A related concern is that, whilst a medical escort will be provided where assessed to be required on medical grounds or where there is a high risk that control and restraint will be used, a medical escort is not an automatic rule. Mr Southey also made some reference to problems about handcuffing on an aircraft but made clear that this is a minor aspect of the appellant's case.
17. It is said that in the absence of approved techniques for the use of force specifically on aircraft, and of training in such techniques, staff have to apply ad hoc and unapproved techniques, which significantly increases the risk of injury or even fatality.
18. The general tenor of these concerns is illustrated and supported by the expert report of Dr RT Shepherd, a consultant forensic pathologist instructed on behalf of the original claimant. At section 7 of his report Dr Shepherd states:

"a. It is my opinion that the cabin of a commercial aircraft is a completely different environment to that of a prison not only because of the narrow passages and limited spaces between rows of seats but also because, at altitude and with the standard reduction in cabin pressure that is used, there will be a reduction in the availability of oxygen to those within the cabin. This is of little or no significance in normal situations but any reduction may assume great importance during restraint.

b. Further the environment is 'closed', the staff present must perforce deal with any and all situations themselves.

…

d. I am struck by the complete absence within [the Manual] of any discussion, documentation or description of the placing of an individual onto an aircraft, the placing of an individual into a seat of an aircraft and the restraint of the individual within the aircraft shell or on an aircraft seat …."

19. Dr Shepherd states in his conclusions:

"1. I am extremely concerned that staff involved in aviation deportation do not have specific training for the environment in which they have to work. This lack of specific training in my opinion will significantly increase the risk to any individual who is being deported and it will also increase the risks to members of staff.

…

4. It is likely that in a few situations an individual may well need to be restrained while on an aeroplane. At present there are no specific techniques detailed in the Use of Force Manual that staff may employ. The staff engaged in these duties will have to apply known techniques or variations of known techniques, in essence they are left to develop ad hoc variations of methods of restraint in the heat of the moment. The history of deaths during restraint repeatedly shows that it is the un-tested and un-approved 'spontaneous' techniques that most commonly result in fatalities."

The relevant history

20. The history is set out at paragraphs 10-51 of Foskett J's judgment. I set out below what appear to me to be matters of particular importance.
21. The first important document is a "Project Status Report" dated 3 July 2008 prepared by NOMS (specifically, by the NTRG) in response to a request by UKBA to review the operational use of restraint prior to and during the removal of detainees from the United Kingdom and specifically to look at the effectiveness of control and restraint techniques in the "unique circumstances regarding restraint on aeroplanes". The report contained a number of recommendations, including that a facility be sought to provide training in a realistic scenario, more specifically involving an aircraft with centre aisle and passenger seats on both sides (recommendation 1); that "all seated restraints remove the use of head support from the front" (recommendation 9); and that techniques be developed that would be applicable when fewer than three staff were present, to include restraint techniques in a seated position (recommendation 10).
22. The evidence relating to that July 2008 report is considered at paragraphs 20-29 of the judgment below. It is not clear what happened to the report but it does not appear that any action was taken on it at the time. Whilst that gives cause for concern, the issues came subsequently to be examined and pursued in greater detail, as described below.
23. The next relevant event was the publication of Baroness O'Loan's report on 12 March 2010 (see paragraphs 17-19 and 30 of the judgment below). The report considered complaints about abuse of detainees. It made various recommendations concerning the use of force but did not contain any specific recommendations about the use of control and restraint on aircraft.
24. On 12 October 2010 there occurred the death of Mr Jimmy Mubenga due to asphyxia while he was being restrained by detention custody officers on an aircraft prior to its departure to Angola. The judge refers at paragraph 31 of his judgment to the expert reports considered by the CPS in reaching an initial decision not to bring charges against any of the officers concerned (we were told that manslaughter charges have since been brought). The experts suggested that there were shortcomings in the training given to the security guards. They said that the training on how positional asphyxia might occur and the warning signs for identifying positional asphyxia were both flawed. In addition, they criticised the lack of specific training for use of restraint on board an aeroplane. The concerns raised by the experts were drawn to the attention of UKBA, NOMS and the contractor concerned (G4S).
25. As the judge says at paragraph 32 of his judgment, the tragedy immediately brought the issue of restraint on aircraft squarely into the public arena. The immediate response of UKBA to the death of Mr Mubenga was to suspend the use of restraint when enforcing the departure of detainees, pending a review by NOMS. Having been advised by NOMS that the techniques used by escorts were not fundamentally dangerous, UKBA lifted the suspension on 25 October 2010. It appears that the initial advice was given orally but was to be followed up by a written report. A letter dated 26 October 2010 from UKBA to NOMS refers to three areas of work with which, as agreed at an earlier meeting, UKBA was asking NOMS to assist:

"Firstly, we would like you to review the current restraint techniques that are being used for overseas removals to ensure that they are not inherently unsafe …

The second piece of work is the review of all restraint techniques and mechanical restraints being used by the UK Border Agency, recommendations on what should be used going forward and the accreditation of all techniques and mechanical restraints to be used ….

The third piece of work is the production of training manuals and course materials for the above …."

26. In relation to the first of those areas of work, NOMS produced a consultation report dated 1 November 2010. Under the heading "Background" it referred to the assurances required by UKBA that the control and restraint basic techniques used by G4S escort staff "are safe and being delivered as outlined in Prison Service Order 1600, Use of Force policy, and the NOMS Use of Force manual". It continued:

"C&R Basic was designed by NOMS primarily for use in a confined custodial environment. It is historically and medically proven to be a safe and effective system of restraint, provided all aspects of the training manual and policy are fully adhered to. Any techniques used by UKBA or its sub-contractors outside of the Manual and policy are therefore not supported by NOMS.

C&R Basic is a risk assessed, safe system of work which should only be applied by supervised, competently accredited, trained staff.

Any Use of Force has inherent dangers, particularly when misapplied. Staff are trained to recognise this risk and are also advised that the risk can increase when the subject being restrained is in the prone or seated position."

27. The report gave a generally favourable conclusion in relation to the use of control and restraint by escort staff but suggested some interim measures and made a number of recommendations for longer term review and improvement of the system. The "Conclusion" included the following:

"We conclude that C&R in its purest form is a safe system of restraint, provided it is not stretched outside its design specifications. When supported with a number of safeguards risk is reduced further. This can be summed up as medical support, competent supervisors and staff, effective policies, safe systems of work and risk assessments.

Equally, because custody of the detainee may fall within a number of agencies, an effective communication system should be in place so that each receiving agency is provided with the medical and security implications of the detainee.

Local instructors must therefore ensure that escort staff are fully competent in recognising the [symptoms] of medical distress which may occur during restraint. They should refrain from applying any technique which may affect a person's natural cycle of breathing or exacerbate any other medically related problem.

A consistent system for recording information must be in place and collated as part of the Escort Pack which is then passed on to the various holding agencies throughout the escort process.

A thorough risk assessment and medical examination of the deportee should be carried out prior to any UKBA deportations, ensuring that no known medical risk exists which could compromise a safe, secure flight."

28. The judge refers at paragraph 38 of his judgment to key changes made to UKBA's practice to reflect the advice given in the report: in particular, supplementary briefing on the dangers of positional asphyxia, and the automatic assignment of medical support where there was a high risk of control and restraint being necessary. Reference is also made to improvement to the risk assessment process in the light of concerns subsequently expressed by the Home Affairs Select Committee.
29. The "Recommendations" section of the NOMS report of 1 November 2010 included recommendations that the entire process of the management of foreign nationals be examined as part of a full review, from the arrest of the person to exchange of custody with the authorities at the final destination, to include training for arrest teams, custodial staff and those responsible for escort and repatriation (Recommendation 1); that all overseas staff receive a generically designed aide memoire regarding medical advice and the law in relation to restraint and relevant policies (Recommendation 3); and that a system be developed for the restraint of violent detainees when boarding an aeroplane, which would be generic to overseas staff and would be in addition to the existing physical skills taught as part of control and restraint and of physical control in care (Recommendation 6). The reasoning underlying Recommendation 6 was this:

"In many instances foreign nationals are repatriated on commercial flights. The vast majority are carried out with no reported occurrences. However, at times there are difficulties for staff in the event of the detainee becoming violent.

The normal staffing level is 2-3 staff per detainee. No video recording equipment is allowed onto the aeroplane; no additional hand luggage is allowed for the provision of medical equipment. The escort will only continue with the approval of the flight Captain; he/she can order the detainee off the flight just as they can any member of the public who behaves in such a way that could jeopardise the flight. With no dedicated supervisor, Healthcare or additional staff, these situations can be the most vulnerable for both staff and detainee.

The seated position and the close confines make any physical restraint hazardous. The application of handcuffs is effective in securing the hands but is subject to ethical debate about their appropriateness. One point to note for staff when restraining a detainee on a commercial flight is the public perception. It is often the case that many passengers are of the same nationality as the detainee and will support them against staff. This has led to the personal safety and well-being of staff being at great risk."

30. In line with the recommendations in that report, UKBA requested NOMS to assess the feasibility of reviewing all the restraint techniques and mechanical restraints used by it. A scoping report produced by NOMS in December 2010 in response to UKBA's request outlined the methodology, options, costings and timescales. It envisaged a service level agreement to provide a four phased approach to the work, namely a research phase, curriculum development, an implementation and evaluation phase, and a legacy phase. It said that to reach the legacy phase might take between two to three years.
31. As the judge says at paragraph 43 of his judgment, the approach outlined in the scoping report must have been accepted, because on 31 January 2012 the NTRG produced a research phase report (though the version we have seen is dated 26 October 2012). Under the heading "Current training provision", the report stated that "although it has been confirmed that the techniques used by overseas escorts on aircraft and which are accredited by NOMS are not fundamentally dangerous the recommendations focus on the variation in the environments where force may be used by UKBA". In the section on findings and recommendations, under the sub-heading "UKBA specific training package", the report referred to the fact that current training was designed to be used in a custodial environment and that training was lacking for some environments, including aircraft. It also referred to the impact of the configuration of the aircraft and to the fact that "[t]he current NOMS C&R training works on a ratio of no less than 3 staff to 1 prisoner and as such a system for 2:1 ratio, particularly for flights will require development". It recommended:

"Develop a bespoke training package which better meets the needs of UKBA and contractor staff. It may be possible to base the package on existing material but the differences and associated risks need to be addressed. The package will need to be accredited by an appropriate organisation such as NOMS and be signed off by the relevant UKBA minister."

32. The judge observed at paragraph 45 that "this appears to be substantially the same recommendation as was made in July 2008 and reflected in other recommendations subsequently". He went on to describe as follows the position as it stood at the time of his judgment (March 2013):

"46. Nonetheless, the recommendation was accepted by UKBA and NOMS was asked to take it forward. I have been told that this part of the project (which I assume to be the 'curriculum development phase' of the four-phased approach referred to … above) commenced in May last year and NOMS is due to report in March this year. Their remit includes producing a new manual and training material (e.g. training materials for trainers) specifically directed to the use of force on aircraft and within vehicles. It was a requirement of NOMS that UKBA should establish an independent 'advisory panel' the purpose of which would be to assess independently the quality of safety of systems of restraint and equipment proposed for use on escort vehicles, at airports and on to, on-board and off the aircraft. The advisory panel, in its conception, was to act as 'a critical friend of the NOMS team' and to review the techniques as they were developed and to submit a final report with recommendations to ministers. I have been told that the 'Independent Advisory Panel on Non-compliance Management' was appointed in January this year with a view to taking up appointment in March. It comprises a panel of experts, two of whom are medically qualified, one of whom being Professor Shepherd who has provided a report in support of the arguments advanced on behalf of the Claimant in these proceedings.

47. If the advisory panel has only recently been set up, it is unlikely that it will have played any part in the formulation of the training package due to be completed by March this year, but its first task, as I understand it, will be to review that package, discuss it with NOMS and other bodies, with a view, if agreement can be reached, to reporting unanimously to Ministers. If unanimity cannot be reached, the report will indicate the areas of disagreement and it will be for Ministers to decide what to do. I have been told that the panel has been recruited for twelve months or a lesser period if its work can be completed earlier and that the maximum time it can spend on the project is 24 months.

48. I have also been told that '[in] parallel with the work of NOMS in developing the training package and the panel in reviewing it, UKBA is working to source access to a training environment tailored to the use of force on aircraft'. I am told that work on this aspect of the recommendations continues.

49. Ms Abdel-Hardy [Deputy Director in the UK Border Agency] concludes the part of her witness statement that relates to this process as follows:

'The final phase of this project will be implementing the revised training which will start once we have a training manual and materials produced by NOMS, approved by the advisory panel and agreed by Home Office Ministers.'"

33. Since the date of that judgment the Assistant Deputy Coroner, Ms Karon Monaghan QC, has reported on the inquest into the death of Mr Mubenga. Her report recorded the concerns expressed about the use of control and restraint in the confines of an aircraft and stated that, whilst the work being undertaken made clear that there was a recognised need for improvements, the timeline for introducing changes was "extraordinarily long". It also referred to evidence of existing bad practice and to the dangers of handcuffing to the rear, especially on an aircraft. It made a number of related recommendations. The Home Office's response, dated 26 September 2013, referred to the work being done by NOMS to develop a bespoke training package for escorts and to the appointment of the advisory panel. It stated that the proposed training package was currently being considered by the panel for approval, adding:

"Whilst we wish to see the training package delivered as quickly as possible, and are driving progress through regular project board meetings, the timescale for delivery depends on both NOMS and the Panel. Every effort is being made to ensure there is pace, however this is balanced to meet our commitment to providing the best possible system we could have for escorts on vehicles and aircraft."

34. We were informed at the hearing of the appeal, in June 2014, that the new bespoke training package had been approved by the advisory panel in March 2014 and that work was ongoing with the contractor (now Reliance Task Management, the third interested party) for its roll-out later in the year.

The issues in the appeal

35. Three broad issues are raised by the appellant:

(1) It is submitted that the publicly available framework relating to the use of force on those being removed by aircraft from the United Kingdom does not comply with the obligations imposed by Articles 2 and 3 ECHR, in that the Secretary of State has failed to regulate and organise the use of force in this context in such a way as to minimise to the greatest extent possible the risk of harm, in particular by failing to develop and approve techniques for the use of force in the specific environment of an aircraft and to train staff how to use force in that situation.

(2) The policy on the use of force is also submitted to be unlawful under domestic law on the ground that it gives rise to an unacceptable risk of unlawful decision-making or action in individual cases.

(3) The redactions to the Manual are challenged: it is submitted that the refusal to disclose the full policy on the use of force is unlawful, in particular because it is impossible to assess the lawfulness of the policy in the absence of disclosure.

Whether the legal and administrative framework complies with Articles 2 and 3

36. The challenge relates to the duty under Articles 2 and 3 to put in place an appropriate legislative and administrative framework. The different levels of duty were explained by Lord Hope of Craighead DPSC in Smith v Ministry of Defence [2013] UKSC 41, [2014] AC 52, at paragraph 68:

"The positive duties on the state operate at various levels, as one idea is handed down to another. There is a lower-level, but still general, duty on a state to take appropriate measures to secure the health and well-being of prisoners or people who are in some form of detention. This in its turn gives rise, at a still lower level, to two general obligations …. The first is a systemic duty, to put in place a legislative and administrative framework which will make for effective prevention of the risk to their health and well-being or, as it was put in Oneryildiz, para 89 [Oneryildiz v Turkey (2004) 41 EHRR 325], effective deterrence against threats to the right to life. Depending on the facts, this could extend to issues about training and the procurement of equipment before the forces are deployed on operations that will bring them into contact with the enemy. The second … is to ensure that, where there is a real and immediate risk to life, preventative operational measures of whatever kind are adopted to safeguard the lives of those involved so far as this is practicable."

37. The leading case concerning the framework duty is the decision of the Grand Chamber of the European Court of Human Rights ("the ECtHR") in Makaratzis v Greece (2005) 41 EHRR 49. The facts of that case were graphic. The applicant, having driven through red traffic lights and then failed to stop for the police, was pursued by police officers in cars and on motorcycles. After he had broken through five roadblocks the police officers started firing at his car. They continued firing when he stopped at a petrol station. Following his arrest he was found to have sustained several injuries, including bullet wounds. Relying inter alia on Articles 2 and 3, he complained that the police had used excessive fire-power against him, putting his life at risk. The Court considered the matter under Article 2, stating that no separate issue arose under Article 3. Specifically, at paragraphs 56-72, it considered the alleged failure of the authorities in respect of their positive obligation to protect the applicant's right to life by law.
38. At paragraph 56 the Court referred to the fundamental importance of Article 2 and to the need to interpret and apply it so as to make its safeguards practical and effective. It then set out the well-established positive obligation on the state to secure the right to life by putting in place an appropriate legal and administrative framework to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It stated next that the use of force by police officers may be justified in certain circumstances but that unregulated and arbitrary action by state officials is incompatible with effective respect for human rights. The judgment continued:

"58. … This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force, and even against avoidable accident.

59. In view of the foregoing, in keeping with the importance of Art 2 in a democratic society, the Court must subject allegations of breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the state who actually administered the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination. In the latter connection, police officers should not be left in a vacuum when exercising their duties, whether in the context of a prepared operation or a spontaneous pursuit of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect.

60. Against this background, the Court must examine in the present case not only whether the use of potentially lethal force against the applicant was legitimate but also whether the operation was regulated and organised in such a way as to minimise to the greatest extent possible any risk to his life" (emphasis added).

39. The Court went on to examine the particular facts of the case. In the course of so doing, it referred to the fact that the law in force at the material time authorised the use of firearms "only when absolutely necessary and when all less extreme methods have been exhausted" and that there were at the time no other provisions regulating the use of weapons during police actions or laying down guidelines on planning and control of police operations. It said that the insufficiency of the framework was confirmed by the evidence of the way in which the particular operation was conducted. The Court was struck by the chaotic way in which firearms were actually used and it referred to the absence of clear chains of command. It took account of the fact that this was an unplanned operation giving rise to developments to which the police had to react without preparation, and that the positive obligation under Article 2 "must be interpreted in a way which does not impose an impossible burden on the authorities". It continued:

"70. Nonetheless, while accepting that the police officers who were involved in the incident did not have sufficient time to evaluate all the parameters of the situation and carefully organise their operation, the Court considers that the degeneration of the situation, which some of the police witnesses themselves described as chaotic, was largely due to the fact that at that time neither the individual police officers nor the chase, seen as a collective police operation, had the benefit of the appropriate structure which should have been provided by the domestic law and practice. In fact, the Court points out that in 1995, when the event took place, an admittedly obsolete and incomplete law for a modern democratic society was still regulating the use of weapons by state officials. The system in place did not afford to law enforcement officials clear guidelines and criteria governing the use of force in peacetime. It was thus unavoidable that the police officers who chased and eventually arrested the applicant enjoyed a greater autonomy of action and were able to take unconsidered initiatives, which they would probably not have displayed had they had the benefit of proper training and instructions. The absence of clear guidelines could further explain why other police officers took part in the operation spontaneously without reporting to a central command.

71. In the light of the above, the Court considers that as far as their positive obligation under the first sentence of Art 2(1) to put in place an adequate legislative and administrative framework was concerned, the Greek authorities had not, at the relevant time, done all that could reasonably be expected of them to afford to citizens, and in particular to those, such as the applicant, against whom potentially lethal force was used, the level of safeguards required and to avoid real and immediate risk to life which they knew was liable to arise, albeit only exceptionally, in hot pursuit police operations" (emphasis added).

40. The words I have emphasised in paragraph 60 of the Court's judgment form the basis of Mr Southey's contention on behalf of the appellant that the framework duty of the Secretary of State extends to putting in place techniques for control and restraint on aircraft that "minimise to the greatest extent possible" any risk to life and, by parity of reasoning, any risk of ill-treatment contrary to Article 3. It is submitted that paragraph 60 represents the logical conclusion of the preceding paragraphs and sets out the primary test to be applied when assessing the compatibility of the framework with those articles.
41. It seems to me, however, that in paragraph 60 of the judgment the Court is not dealing with the content of the framework duty but is turning to consider, against the background of the framework duty, the way in which the particular operation under consideration was regulated and organised. It is not saying that the framework itself must "minimise to the greatest extent possible" any risk arising in respect of the situations in which force may foreseeably be used. The "background" to which it refers is the requirement that policing operations must be sufficiently regulated "within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force, and even against avoidable accident" (the words I have emphasised in paragraph 58 of the judgment), and that "a legal and administrative framework should define the limited circumstances in which law enforcement officials may use force and firearms" (the words I have emphasised in paragraph 59). That is the point picked up in paragraph 71, where the Court refers to the failure of the Greek authorities to do "all that can reasonably be expected" of them to afford the level of safeguards required. In my judgment those passages, rather than paragraph 60, are the best indicators of the test to be applied when considering the general question whether the framework is sufficient to comply with Articles 2 and 3, as distinct from the question whether a particular operation has been planned and organised in a way that complies with those articles. The emphasis in respect of the framework is on reasonable safeguards, not on regulation of such detail as to minimise to the greatest extent possible any risk to life or risk of ill-treatment.
42. The language of "minimise [risk] to the greatest extent possible" is to be found in other cases, in the context of Article 3 as well as Article 2. In each case, however, it is used in relation to the conduct of a particular operation, not in relation to the legislative and administrative framework. Thus, in Kurnaz & Others v Turkey (application no. 36672/92, judgment of the Fourth Section dated 24 July 2007, paragraph 56) the Court found that the use of force in dealing with a prison riot was excessive, stating inter alia that "the Government have not provided any information showing that the operation launched by the gendarmerie was properly regulated and organised in such a way as to minimise to the greatest extent possible any risk of serious bodily harm to the detainees". In Kemal Bas v Turkey (application no. 38291/07, judgment of the Second Section dated 19 February 2013, paragraph 30) the Court used almost identical language in finding a breach of Article 3 in relation to the use of force by police in dispersing a demonstration.
43. Putintseva v Russia (application no. 33498/04, judgment of the First Section dated 10 May 2012) concerned the death of a serving soldier who had been shot when trying to escape while being escorted from a military hospital to the garrison's detention unit to serve a period of detention following a charge of absence without leave. In relation to general principles the Court stated that in determining whether the force used is compatible with Article 2 it may be relevant "whether an operation has been planned and controlled so as to minimise to the greatest extent possible recourse to lethal force or incidental loss of life" (paragraph 45). The judgment went on, however, to look separately at the framework duty:

"46. In addition to setting out the circumstances in which deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which officials may use force and firearms, in the light of the relevant international standards (see Makaratzis … §§57-59). In line with the above-mentioned principle of strict proportionality inherent in Article 2 …, the national legal framework regulating arrest operations must make recourse to firearms dependent on a careful assessment of the surrounding circumstances and, in particular, on an evaluation of the nature of the offence committed by the fugitive and of the threat he or she poses.

47. Furthermore, national law must ensure a system of adequate and effective safeguards against arbitrariness and abuse of force and even against unavoidable accident (see Makaratzis … §58). In particular, officials must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the letter of the relevant regulations, but also with due regard to the pre-eminence of respect for human life as a fundamental value …."

44. In considering the application of those principles, the Court dealt with the "Assessment of the relevant legal framework" (paragraphs 64-67) separately from the "Assessment of the actual use of force and the authorities' conduct preceding the incident" (paragraphs 68-71). In relation to the framework, it found the relevant legal provision to be fundamentally deficient: "Apart from requiring a general warning that a firearm would be used, Article 201 did not contain any other safeguards to prevent the arbitrary deprivation of life. It did not make use of firearms dependent on an assessment of the surrounding circumstances and, most importantly, did not require an evaluation of the nature of the offence committed by the fugitive and of the threat he posed" (paragraph 64). In relation to the particular circumstances of the case, it found that the use of potentially lethal force was not "absolutely necessary" and was prohibited by Article 2. It concluded that the Russian State had failed to comply with its obligations under Article 2 "in that the relevant legal framework on the use of force was fundamentally deficient and that the applicant's son was killed in circumstances in which the use of firearms to prevent his escape was incompatible with Article 2" (paragraph 72).
45. It seems to me that the way in which the Court in Putintseva v Russia dealt with the legal and administrative framework, including its citation of paragraphs 57-59, not paragraph 60, of the judgment in Makaratzis, supports my analysis of that judgment.
46. The only case cited to us which bears directly on the issue of regulation or guidance in respect of specific techniques of control and restraint is Affaire Saoud v France (application no. 9375/02, judgment of the Second Section dated 9 October 2007, full judgment available only in French, with an unofficial summary in English). In that case the deceased had suffered a cardiac arrest after police had immobilised him in a particular position on the ground during a violent incident. The Court found a breach of the positive obligation under Article 2 to protect the life of the deceased. The reasoning included the following:

"103. Enfin, la Court déplore qu'aucune directive précise n'ait été prise par les autorités françaises a l'égard de ce type de technique d'immobilisation et que, malgré la présence sur place de professionels formés au secours, aucun soit n'ait été prodigué à Mohamed Saoud avant son arrêt cardiaque (cf., mutatis mutandis, Makaratzis …. §70-71 …)."

It may be noted that the passage in Makaratzis to which the Court there referred was paragraphs 70-71, not paragraph 60, and that the language of "minimise to the greatest extent possible" did not feature. I acknowledge, however, that the Court was not engaging here in a detailed examination of what Article 2 requires by way of legal and administrative framework. The judgment is consistent with my analysis of Makaratzis but does not take the matter any further.

47. Having considered at some length the Strasbourg case-law concerning the framework duty, I turn to consider its application to the facts of the present case.
48. Foskett J expressed his main conclusion on that issue at paragraph 102 of his judgment:

"Against that background, it does seem to me to be impossible to say that the domestic framework for the use of force is not compliant with the Convention even though the techniques set out within the framework may need some adaptation to cater for the situation in which force is needed within an aircraft. There is undoubtedly room for greater clarity in the way in which use of force techniques are used in the specific context of their use in the confined setting of an aircraft. However, that does not render the current framework non-compliant. Judged by the standards set by Makaratzis and Putintseva, albeit not by reference to the test of whether 'to the maximum extent possible' steps have been taken to avoid risk to life, it seems to me plain that the UK meets its Convention obligations by the framework in place. I will summarise the position as I see it in paragraphs 109-111 below, but the position broadly is that, whilst the Convention obligations may be better met by a 'bespoke package' of 'C and R' approved for use within an aircraft, that does not make the present approach non-compliant."

49. At paragraphs 109-111 he said that the evidence demonstrated that, during the period since Mr Mubenga's death, (i) there had been a renewed emphasis on the need to avoid any restraint technique that could lead to positional asphyxia, particularly in the seated position, (ii) when the prior risk assessment carried out in the case of each person subject to a removal operation showed a high risk of control and restraint being required, someone with medical training would be assigned to the removal, (iii) although not officially approved or accredited, the contractor G4S did adapt a number of the techniques used in such situations which were reviewed by NOMS and no concerns were raised, and (iv) there was a degree of independent scrutiny of the process of removals. All that was against the background of a legislative and regulatory framework that placed considerable emphasis on the need, if possible, to avoid situations where force was necessary, but where it was necessary to use only reasonable and proportionate force. That catalogue of considerations led him to conclude that, as things stood, the framework within which force was used within an aircraft when a removal was being effected was Convention-compliant.
50. In my judgment Foskett J was correct, for the reasons I have given, not to proceed on the basis that the framework had to minimise risk to the greatest extent possible. He did not articulate precisely the legal test that he was applying, but his approach was consistent with that which I have derived from Makaratzis and I am not persuaded that he misdirected himself on this issue.
51. I also agree with his conclusion, but for reasons that I would express somewhat differently.
52. When considering the sufficiency of the legal and administrative framework, I think it important to start from the regulation and guidance already in place, the nature and degree of which make this a very different case from those that met with such criticism in Makaratzis and Putintseva.
53. First, the law empowering the use of force makes clear that such force may be used only when necessary and to the extent necessary. Compliance with the law is subject to effective control by the courts, through its ordinary civil and criminal processes and also, in cases of death, through the inquest system. The legal limitations on the use of force and the personal accountability of officers for its use are underlined by the relevant rules and operating standards and by the general guidelines in Section B of the Manual.
54. The Manual itself is of central importance not just for those general guidelines but for the guidance in Section C about medical considerations, including positional asphyxia; for the advice in Section D about avoiding and defusing violent situations; and of course for the detailed control and restraint techniques described in Section E. It recognises that those techniques relate particularly to a three-officer situation and that the description reflects their use in an ideal controlled environment, but reference is made to the need to adapt the techniques in their daily operation, and the various techniques described are of potential value across the range of incidents where force is required.
55. Detainee custody officers receive practical training by accredited instructors, covering the relevant contents of the Manual. Compliance is reinforced by the requirement to report all instances of restraint and by a system for the monitoring of removals and the investigation of complaints. Each detainee being removed is the subject of a risk assessment, including consideration of any medical or mental health issues, which is recorded in the Person Escort Record so that relevant staff are provided with all necessary information about the detainee. A medical escort is provided where health care clinicians consider that one is required or where there is a high risk that control and restraint will be used.
56. The system accords with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the United Nations in 1990.
57. Whilst a need has been identified for a bespoke package of techniques and training tailored to the specific environment of an aircraft, it must not be forgotten that following the death of Mr Mubenga the techniques currently used by escorts were assessed by NOMS not to be fundamentally dangerous and that the November 2010 report produced by NOMS was understood by UKBA, in my view reasonably, to provide a green light to continuing with removals. Mr Mubenga's death was, moreover, an isolated incident and there is little evidence of systemic problems in the control and restraint techniques actually applied in the course of removals. For example, the evidence before the court includes a witness statement of Mr Mark Hartley-King, an official with responsibility for UKBA's Professional Standards Unit which examines all serious misconduct complaints and serious incidents. The details he gives reveal no such systemic problems.
58. In those circumstances I see considerable attraction to the judge's view that the development of a bespoke package for the aircraft environment should be regarded simply an improvement to a framework that is Convention-compliant in any event.
59. For all the merits of the existing framework, however, I do not think that it would have been acceptable to do nothing further once the need for a bespoke package had been identified. Inaction in the face of an identified need is not a position I would expect the ECtHR to approve, even at the level of the framework duty, and is not one that the national court should approve. It is therefore necessary to go on to consider the steps that have been taken in response to the identified need.
60. Recommendations relating to the development of training and techniques for the specific environment of an aircraft were first made in the NTRG report of July 2008. The failure to take any action on that report remains unexplained. When similar recommendations were made in the November 2010 report, they were taken up and the matter was progressed consistently thereafter. The phased approach envisaged in the December 2010 scoping report was pursued. It led to the research phase report of January 2012; and although that report contained substantially the same recommendation as had been made in July 2008, it led in turn to the development of a bespoke package and the setting up of an independent advisory panel. I see no reason to reject Mr Eadie QC's submission that the whole exercise has been one of some complication, involving as it did the development of a package of materials and training, its review and approval by the independent panel, and the implementation of a training programme following approval. The December 2010 scoping report envisaged that it might take two to three years to reach the legacy phase, whereas in the event it will have taken three to four years. The timeline since the end of 2010 has been a long one but I do not accept that it has been unreasonably long.
61. In my view, therefore, at the date when the judicial review claim was brought, in February 2011, the Secretary of State was doing all that could reasonably be expected of him to afford an appropriate level of safeguards. That remained the position as at the date of Foskett J's judgment and, if it is of any relevance, at the time of the appeal.
62. In those circumstances I do not think that there is any basis for finding a breach of Article 2 or Article 3 in relation to the legislative and administrative framework governing the use of force on persons being removed by aircraft from the United Kingdom. The delay between 2008 and 2010 in reacting to the identified need for a bespoke package is not a sufficient reason for finding such a breach. The matter was being taken forward appropriately by the time the present proceedings were brought. At no time during the course of the proceedings could the Secretary of State reasonably have been required to do more than was already being done.

Whether the policy gives rise to an unacceptable risk

63. The alternative way in which the appellant's case is advanced by Mr Southey is by reference to the principle stated in R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148 that a policy is unlawful if it gives rise to a significant risk of treatment contrary to Article 3 (see paragraphs 29 and 80 of the judgment in Munjaz). It is submitted that the policy on the use of force, as set out in particular in the Manual, gives rise to such a risk (and/or to a significant risk to life, contrary to Article 2) and is therefore unlawful, again by reason of the lack of techniques and training adapted to the specific environment of an aircraft.
64. Foskett J rejected that line of argument, essentially for reasons set out in paragraph 105 of his judgment:

"… As I have said, there is always some risk of an unexpected and unintended serious injury or even death arising from the use of force, but the evidence is that there has been but one death (that of Mr Mubenga) in the whole history of escorted removals from the UK over a period of nearly 20 years since private contractors were engaged in the process. That death did arise from actions undertaken within an aircraft. Tragic though, of course, it was, it could of itself not be sufficient to put permanently on hold all escorted removals while new guidelines on the use of force were promulgated. The result of the immediate review at the time demonstrated that, subject to the additional warnings about positional asphyxia …, the use of force guidelines used for training purposes were sound and safe. There is no compelling evidence of any serious injury having been occasioned to any detainee whilst being subjected to force within an aircraft since that time and, notwithstanding reservations that may have been expressed about the level of complaints about the use of force in such a situation, the evidence of a complaint level of about 1 in 10 cases is hardly indicative of a major systemic problem. Baroness O'Loan concluded that there was no such systemic problem on the evidence she considered and nothing before me contradicts that view. There may be occasions when an individual DCO goes beyond what is necessary and proportionate in the circumstances. In such circumstances, an inquiry may well be justified and disciplinary action (or civil or even criminal proceedings) may also be justified. But occasions such as these, regrettable and reprehensible as they may be, do not condemn the whole system as contrary to Article 3 or indeed Article 2."

65. I agree with the judge's rejection of the argument for the reasons he gave. Those reasons echo some of the points made in rejecting the primary case put forward as to non-compliance of the framework with Articles 2 and 3. Indeed, I do not see how the alternative argument could sensibly succeed once the direct challenge to the compatibility of the framework with Articles 2 and 3 is rejected.
66. In support of his submissions Mr Southey placed considerable reliance on the judgment of the Court of Appeal in R (C (A Minor)) v Secretary of State for Justice [2008] EWCA Civ 882, [2009] QB 657, as involving a factually similar challenge to policy. In my view, however, the case does not take him very far. It was in fact a challenge to rule amendments relating to the treatment of young persons in detention, whereby physical restraint of the sort set out in the Manual (physical control in care, or "PCC") was permitted to be used "for the purposes of ensuring good order and discipline". The ratio decidendi, as appears from paragraphs 58-65 and 79 of the judgment of Buxton LJ, with whom the other members of the court agreed, was that PCC engaged Article 3 but had not been shown to be necessary for the purposes of ensuring good order and discipline. That is not an issue of any relevance to the present case. It is true that in obiter dicta at paragraphs 66-78, Buxton LJ rejected a contention on behalf of the Secretary of State that adherence to the code of practice with which the relevant rules were to be read meant that there was no significant risk of future conduct that was in breach of Article 3. Mr Southey submitted that certain of the considerations to which Buxton LJ referred applied equally to the present case. Those considerations were based, however, on the evidence before the court in C's case. They cannot in my view be transposed to the present case, in relation to which the evidence was different. Foskett J's conclusion was based on findings properly open to him on that evidence. The conclusion is not undermined by what was said in C's case.

The challenge to the redactions to the Manual

67. The final issue concerns the Secretary of State's decision to publish the Manual only in redacted form. The issue is dealt with at paragraphs 111-141 of Foskett J's judgment.
68. In those paragraphs the judge describes first the nature of the case advanced by Mr Southey, that there should be sufficient disclosure of the Manual to enable the claimant (i) to protest about the use of force, for example on the grounds that the policy states it is prohibited, unauthorised or dangerous, (ii) to bring proceedings that force used was a violation of Article 3 because the policy shows it was dangerous and/or prohibited, and (iii) to bring proceedings to show that the framework is unlawful.
69. The judge describes next the case for the Secretary of State that the redactions have been made for operational reasons of sensitivity and security, the judgment having been made that it would be damaging and contrary to the public interest for the redacted parts to be published. Reference was made to earlier proceedings before the Information Commissioner in which disclosure of the full Manual was sought by a journalist but the Commissioner concluded that the public interest in maintenance of the exemption from disclosure outweighed the public interest in disclosure. The Secretary of State relied on the same justification to resist disclosure in the present case, contending that disclosure would have a seriously prejudicial effect on security and good order, and on the physical health and safety of prison staff and other prisoners, because (i) the Manual is used in training across the NOMS estate and in immigration detention facilities and the effect of releasing the redacted material would be that this would be available for all serving adult prisoners; (ii) prisons hold a diverse range of individuals, including those who are violent, dangerous and manipulative, as well as those who are vulnerable, and if the redacted parts were to be released all adult prisoners and detainees would be able to study the techniques and prepare to counteract them; (iii) this would increase the risk of insecurity within the detention estate through an inability to control violent and disruptive elements; (iv) the Prison Service and the Secretary of State each has a duty of care to those individuals who are detained as well as to staff who work with them and people who visit them; the increased risk of insecurity would make it more difficult to comply with that duty; detention would be less safe and more intimidating.
70. The judge said at paragraph 127 that whilst he was not bound by the Commissioner's decision and the test he had to apply was different, the essential judgment to which he had to come was the same. He considered it plain that the Secretary of State's decision to withhold publication of the redacted parts was lawful. There were obvious risks to the public involved in putting out into the open descriptions of the techniques that had been withheld. A balance had to be struck and he was unable to say that the decision to withhold the information represented the result of an erroneous decision-making process.
71. At paragraphs 128-141 the judge went on to consider, for the sake of completeness, the issue of public interest immunity ("PII") which, for reasons he explained, had not been dealt with in the draft judgment originally sent to the parties. He was satisfied that PII had been established even in the absence of a formal PII certificate.
72. In my view, the Secretary of State has put forward cogent reasons for the decision not to publish the redacted parts of the Manual, and the judge was right to find that the decision was lawful. An appropriate balance is struck between description of the relevant techniques (with a proper indication of what has been redacted) and the maintenance of security. I am not persuaded that disclosure of the redacted parts is necessary for the purpose of enabling the appellant to mount her challenge under Articles 2 and 3 to the framework for the use of force in the aircraft environment, as is apparent from the detailed consideration it has been possible to give to that challenge on the basis of the Manual in its redacted form. We are concerned in this case with the framework, not with a specific instance of the use of force, where particular issues of disclosure of relevant parts of the Manual might arise. As to Mr Southey's fall-back position that disclosure of the redacted parts of the Manual might reveal techniques that were inherently dangerous or gave rise to an unacceptable risk, the case amounts in that respect to a fishing expedition in which the appellant does not even have a relevant interest.
73. Mr Southey relied on the statement in the ECtHR's judgment in Oneryildiz v Turkey (2004) 41 EHRR 325, in the context of the framework duty and the need to take practical measures to ensure the effective protection of citizens whose lives might be put at risk by dangerous activities, that "particular emphasis should be placed on the public's right to information" (paragraph 90). Plainly, however, that general proposition does not mean that material must be published even where its publication will endanger security.
74. Mr Southey criticised the fact that the judge upheld PII in non-disclosure of the redacted parts without himself reviewing the redacted material. The issue certainly took an unusual course, without even a formal PII certificate, but it seems to me that it was open to the judge to adopt the approach he did and that his conclusion was properly open on the material before him. What was said in Somerville v Scottish Ministers [2007] UKHL 44, [2007] 1 WLR 2734 about the need for the court to inspect documents in respect of which PII is claimed was based on the circumstances of that case and was not expressed to apply as an invariable rule.
75. Mr Southey suggested that disclosure of the redacted material could have been made to the claimant's legal team and expert witness, subject to appropriate undertakings as to confidentiality, because the arguments were not such as to require instructions from the lay client. But since in my view the just disposal of the case did not require any form of disclosure of the redacted material, the judge was correct to dismiss the idea of a confidentiality ring. He was also right to observe that a confidentiality ring would have given rise to significant practical difficulties (as considered, albeit in a more sensitive context, in AHK v Secretary of State for the Home Department [2013] EWHC 1426 (Admin) at paragraphs 21-28); and in the absence of a compelling need for disclosure, such issues were plainly best avoided.
76. Accordingly, I see no basis for departing from the judge's analysis and conclusion on this issue.

Conclusion

77. For the reasons given I would dismiss the appeal.

Lord Justice Christopher Clarke :

78. I agree.

The Chancellor :

79. I also agree.