England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 July 2012

Mr Justice COLLINS :

1. At the material time, the claimant was detained at Colnbrook Immigration Removal Centre (IRC) pending his removal to Algeria, of which he is a national. On four occasions in July and September 2010 he had to be taken to Hillingdon hospital for investigation or treatment of physical problems. During all the hospital visits he was restrained either by ratchet handcuffs or by what are known as Closet chains, which are handcuffs at either end of a chain 2.5 metres in length. He claims that these restraints were unlawful in that they breached either Article 3 or Article 8 of the ECHR.
2. Colnbrook IRC is staffed by the first defendant. The second defendant has overall responsibility and issues guidance which must be applied by the first defendant. The second defendant's guidance relating to the use of restraint during hospital visits is attacked by the claimant on the ground that it is too imprecise and gives rise to an unacceptable risk that the application of restraint measures will be unlawful.
3. This claim was lodged on 17 November 2010. It was accordingly over three months since the first July visit which was on 10 July 2010 and since the commencement of the second July visit. In its Acknowledgement of Service the first defendant took a delay point. Permission was granted by Frances Patterson, Q.C. on 14 December 2010 without referring to the delay point. Mr Beer, Q.C. sought to raise delay before me. But once permission has been granted without limitation he could not re-open delay save under section 31(6)(b) of the Senior Courts Act 1981. In my view there was no good reason to do that and I was satisfied that in the circumstances it was appropriate to consider all the visits. In reality as will become clear, the claimant's case is strongest in relation to the second July visit.
4. The claimant entered the United Kingdom in May 1994 and claimed asylum. He said he had worked for the government as a security officer during the civil war and had been shot twice. He feared further retribution. His claim was refused in 1996 and his appeal dismissed in April 1999. Since this preceded the Human Rights Act, he made a further application based on the Act but that was refused in March 2002. He then overstayed. Between 1999 and 2002 he committed a number of offences which resulted in conditional discharges, community service orders and community rehabilitation orders. In January 1999 he was convicted of threatening behaviour. In March 1999 he was convicted of criminal damage and affray and in January 2002 of an assault and resisting arrest. He persistently failed to surrender to custody and so he was dealt with in court finally in April 2004.
5. While none of these offences were particularly serious judging by the punishments imposed, they showed a worrying tendency to act in a violent and irresponsible fashion. However, he did not commit any criminal offences after 2002 until September 2009. He was engaged with the Home Office in attempting to avoid removal. On 26 December 2008 he was admitted to hospital having, he said, attempted to poison himself following receipt of a letter from the Home Office stating that he was to be deported. He made an application to be allowed to remain based on long residence in May 2009. He was being supported by his local MP in Liverpool in his efforts to persuade the Home Office to allow him to remain but became increasingly frustrated that those efforts seemed to be getting nowhere. It was in those circumstances that he committed a serious offence on 21 September 2009.
6. He attended his MP's constituency office. He was asked to wait and then he poured petrol over himself. When the MP came out of her office having smelt petrol he was holding a cigarette lighter and he threatened to set fire to himself. She persuaded him to give her the lighter. While she was at the time understandably upset by what he had done, she wrote to the judge who was dealing with the claimant who had been charged with and pleaded guilty to affray stating that in her view the claimant was suffering from great stress and trauma and she felt that his actions came from desperation not malice. She asked the judge to consider his case sympathetically. On 23 December 2009 he was sentenced to 10 months imprisonment.
7. He served his sentence at Liverpool Prison. When he would have been entitled to be released having served one half of the sentence in February 2010, he was detained under powers contained in Schedule 2 to the Immigration Act 1971. The application he had made in May 2009 was refused on 22 January 2010. Thus he was to be removed. While in prison, he had expressed suicidal thoughts and had gone on hunger strike on occasions. He was particularly badly affected by the refusal of his application. He was believed to be suffering from a depressive illness (albeit this was not the view of all doctors who examined him) which resulted from his experiences in Algeria, the death of his infant daughter, who had been smothered when his wife fell asleep when feeding her, followed a year later by his wife's death from cancer and then the death of his 16 year old son in a drowning accident. When admitted to Colnbrook IRC, he was taking medicines for depression and it was noted that he had made threats of self harm.
8. On 23 April 2010 he made what was put forward as a fresh claim for asylum or humanitarian protection, but this was refused on 5 May 2010 on the ground that it was not a fresh claim. He had this decision overturned by judicial review. I have not been told what the current position is in relation to his attempts to remain in the United Kingdom. However, he has been released on bail. He has independently of this claim issued civil proceedings claiming damages for wrongful detention. I am not concerned with these save that he was on 20 March 2012 granted an order by consent that his name be anonymised as FGP. He has applied for a similar order to apply in this claim. The anonymity order was granted because following his release on bail he was harassed by being doorstepped by a journalist and there were as a result reports in three tabloid newspapers which apparently suggested inter alia that he was claiming £50,000 (this was he says inaccurate) and a photograph of him identifying his address. The result of this was unpleasant and threatening comments from members of the public. It seems to me in the circumstances that such pressures are thoroughly undesirable and so I was prepared to make the anonymity order requested. Neither defendant raised any objection. The order does not, of course, prevent a fair and accurate report of this judgment.
9. It is clear and must have been apparent to those responsible for the claimant at Colnbrook IRC that he was a vulnerable individual. A Room-Sharing Risk Review was carried out on his admission since it was necessary to ascertain whether he would behave in such a way as might be a risk to anyone with whom he shared a room. On 16 June 2010 it was concluded that the risk to any room mate was low and that there was no new information to link him with violent offences. Further, there was, it was said, no history of self harm. That assessment did not change prior to the claimant's visits to hospital in July 2010. Nor, so far as a risk of harm to a room mate was concerned, was there any reason for it to change throughout the period covered by the matters raised in this claim.
10. There were four hospital visits during which restraints were imposed. Three were short, taking place within a day, but one involved a stay in hospital for treatment over 8 days. The first visit was on 10 July 2010. The previous day he had complained of severe abdominal pain and it was decided that he should go to hospital for tests the following day. Blood and urine samples were given. The diagnosis was a urine tract infection, but he had a history of a peptic ulcer. Following his return to Colnbrook, he did not improve. Severe pain continued and he was unable to keep food down. He was taken to hospital as an emergency case at 6 p.m. on 15 July. He was kept in hospital undergoing treatment and various tests until 23 July. This treatment included intravenous antibiotics and pain killers between 15 and 21 July and he had a catheter inserted which remained in place for at least 24 hours. He also underwent an endoscopy and a gastroscopy. Once he was in a ward or later in a sideroom he was restrained by means of a closet chain.
11. The third visit was on 1 September 2010. He again suffered abdominal pains and tests, including an endoscopy under sedation, were deemed necessary. The tests showed that he had inflammation of the oesophagus and stomach and a bacterial infection. The final hospital visit was on 24 September 2010. This was for an X-ray and lasted some 45 minutes.
12. Before taking any detainee out of the IRC, what is called an External Escort Risk Assessment had to be carried out. The purpose of this was to determine what restraints should be applied. The assessment considered the detainee's previous history and current behaviour. There was a box on the form headed 'Special Information' and sub-headed 'Comments – Drugs/Violence/Danger to public'. In addition, the Security of the Destination was considered and the relevant box required comments on any special procedures and recommendations for restraints. Finally, any healthcare recommendations had to be indicated.
13. In deciding the extent to which restraints should be applied during a hospital visit, guidance issued by both defendants was material. However, although at least one of the officers who were responsible for deciding on the nature of the restraints was aware of what is described as the Detention Services Order O8/2008 issued by the second defendant on 28 August 2008, the others understandably applied the first defendants Rule on Escorting dated August 2008. That annexed the previous Home Office Detention Services Order 1/2002. This Order had in fact been amended in February 2007 by Order 02/2007, but the amendment is not referred to in the first defendant's Rule. The relevant parts of the Order 1/2002 read as follows:-

"The purpose of handcuffing detainees is to reduce the risk of

i) Abscond

ii) Harm to the public, detainees or staff

iii) Damage to property

iv) preventing their own removal from the U.K.

v) preventing the removal of another detainee.

Handcuffs must only be used when necessary and not as a matter of routine. Their application must be appropriate in the circumstances. For example, those granting authority must state in writing whether it applies to the whole escort, including the vehicle journey, or only a part."

Under the heading 'Health Factors' it is said that restraints will not normally be used:

"i) On a detainee with a mental disorder who is subject to an order or directions for compulsory detention under the Mental Health Acts …

ii) On detainees attending for medical treatment if the detainee's medical condition renders handcuffs inappropriate.

iii) When a Doctor so recommends on health grounds."

14. It is to be noted that that guidance does not in terms indicate that handcuffing should be avoided if possible during any medical treatment. However, the 2007 Order states:-

"Where handcuffs have been used during a medical escort the normal presumption is that they should be removed during any medical consultation or treatment, unless the original risk assessment dictates otherwise. If a medical doctor or other person with direct responsibility for treating the detainee in the hospital requests the removal of handcuffs, either during any medical consultation/treatment or for other reasons, this request must be complied with."

While this does identify the important presumption that handcuffs should not normally be used during medical consultations or treatments, it requires the officer making the risk assessment to consider whether restraint is required during such consultation or treatment. If that assessment indicates that handcuffing must apply at all times, that will prevail, unless the treating doctor or nurse requests otherwise.

15. The 2008 Order deals with the use of handcuffs for any detainee who has to leave the IRC under escort. The purpose of handcuffing is to reduce the risks of:

"(i) Escape/abscond

(ii) Harm to the public, detainees or staff

(iii) Damage to property

(iv) Preventing their own removal from the U.K.

(v) Preventing the control of another detainee."

Self harm is not specifically identified as a material risk although it might be covered by (iv). Two of the officers who were responsible for the risk assessments stated that they would not regard restraints to be appropriate to deal with threats of self harm. However, one said that such behaviour was 'indicative of unpredictable behaviour which does indicate a certain level of risk' and the other, a Mr Willock who gave evidence before me, made the same point, stating 'it does indicate a level of volatility which is relevant to the risk assessment.'

16. The 2008 Order deals with restrictions on handcuffs and removal of restraints, which are, with one exception only applicable in exceptional circumstances for overseas escorts, limited to handcuffs. The relevant part reads as follows:-

"Removal of restraints

Restraints should be removed in specific circumstances on the risk assessment. For example;

(i) On arrival in a courtroom.

(ii) At funeral services or during visits to dying relatives.

(iii) During hospital treatment, and if requested by medical professional.

(iv) In an emergency where life is being threatened.

(v) When a female is attending an antenatal check, or giving birth.

(vi) Where a medical professional requests their removal on health grounds.

Restrictions on handcuffing

(i) A detainee must not be handcuffed to a member of staff using rigid bar handcuffs.

(ii) Detainees must not be handcuffed in pairs.

(iii) Under no circumstances will a tetraplegic or paraplegic detainee be handcuffed.

(iv) If the detainee's medical condition renders restraints inappropriate or a risk assessment demonstrates they are unnecessary. Restraints will not normally be necessary when the detainee's mobility is severely limited, e.g. when he or she is on crutches.

(v) On a detainee who is subject to an order or directive for compulsory detention under the Mental Health Acts, unless the Centre Manager, with the agreement of a doctor, directs that they must be used.

(vi) On detainees attending for medical treatment if the detainee's medical condition renders handcuffs inappropriate.

(vii) When a medical professional recommends on health grounds. "

17. I will consider this part of the Order further when I deal with the claim against the second defendant. The Restrictions clearly apply when the officer in charge is carrying out the risk assessment. The medical professional referred to in Paragraph (vii) refers to a professional at the IRC and similarly the question whether the detainee's medical condition precludes the use of handcuffs as set out in Paragraph (vii) is to be decided as part of the risk assessment. No doubt if on a previous hospital visit where there is, for example, a need for ongoing treatment a doctor at the hospital has indicated that restraints are inappropriate, that would have been reported back and should be acted on.
18. The circumstances in which removal of restraints should occur during an escort should also be identified in the Risk Assessment. So much is clear from the opening and the matters set out in Paragraphs (i) to (vi) are examples only. However, it is apparent that they can apply even if not identified in the Risk Assessment should the need arise. Paragraph (iv) is an obvious example. But Paragraphs (iii) and (vi) are equally relevant. Indeed, since (vi) is identical to (viii) under Restrictions on Handcuffing, it can only sensibly apply if a request is made during the hospital visit. Paragraph (iii) is not well drafted, since the comma together with the word 'and' creates an ambiguity. A possible construction is that there are two alternatives, namely during hospital treatment and also if a medical practitioner so requests, whether or not during treatment. However, all counsel have agreed that it should be construed as a single requirement namely that they should only be removed during treatment if the medical practitioner responsible for that treatment so requests. It follows that nowhere does the guidance specifically indicate that restraints should not be applied during treatment. Assuming that the Risk Assessment indicates that they should be applied generally, removal will only take place if a medical practitioner requests that it should. The presumption against handcuffing referred to in the 2007 Order is not repeated, albeit that presumption was limited by the proviso that it only applied where the risk assessment did not dictate otherwise.
19. As I have said, there were four visits to hospital. Statements by the four different officers who were responsible or who were aware of the basis for the Risk Assessments for each visit were served. Each of the assessments recommended that restraints should be applied at all times. Mr Southey, Q.C. requested that two of the officers should attend for cross examination. It was left to me to decide whether to agree to that for the two of the officers who dealt with the July visits. Mr Southey did not pursue any request in relation to the officers dealing with the September visits. The first defendant submitted that such cross examination was unnecessary since there was no factual issue which needed to be decided which could assist the claimant's case. Mr Southey was concerned that without any testing of the evidence the court would be bound to accept it at face value. That had happened in a previous case relating to handcuffing in which he had appeared for the claimant, R(Faizovas) v Secretary of State for Justice (2008) 103 BMLR 28. I decided to allow the request and the two officers gave evidence. Mr Southey has sought to rely on some of the matters which he elicited in cross examination.
20. Mr Willock, who had been a prison officer, had training in particular in carrying out room sharing assessments. He had not himself been responsible for the 10 July assessment, but was able to comment upon it from his experience generally and of the claimant. The claimant's previous history refers to his criminal record and particular to the affray in the MP's office. There was also reference to a history of self harm. Mr Willock said that he was aware that the claimant had been sentenced to 10 months imprisonment for the affray and that showed he was a potential risk to the public. While the other convictions were not recent, they suggested a potential to use violence, to resist arrest and so indicated a risk of absconding. Hillingdon hospital was a low security establishment and escape from it would be simple. The healthcare staff did not say that there was any reason why restraints should not be applied. He agreed with the recommendation which stated:-

"Restraints to be applied at all times. Remove in medical emergency or with the authority of Operations Manager following risk assessment."

21. In addition, Mr Willock had attended the hospital on two occasions when the claimant was being kept there between 15 and 23 July. The first attendance was for ½ hour between 6.30 and 7 a.m. on 19 July. He said that he checked whether there were any problems. None of substance were put to him. He therefore saw no reason to vary the restraint regime. He noticed that the claimant was in a side room. The second attendance was between the same times on 23 July. He read the Occurrence Record and noted that there were entries which showed that the claimant had been aggressive, as he put it, on a few occasions. After waiting for some time to see a doctor when first admitted on 15 July, the claimant is said to have been rude to a nurse and to have refused pain killers. He is said to have told the officer with him that he would teach him a lesson and threatened him. No more detail is given and five minutes later he agreed to take pain killers. He was upset that he had been in considerable pain and he had not been seen by a doctor for 4 hours. On 19 July it is noted that he was becoming agitated and threatened to knock his drip over. This was because he felt he had not been treated as he should have been and he was not a criminal. It does not seem that he threatened violence to anyone. Otherwise, the record shows that he was generally calm and cooperative. The point is made by Mr Beer that the record shows no complaints being made and there are many entries which record that he was sleeping. There is nothing to indicate that he was or threatened to be violent other perhaps than on 15 July.
22. It was put to Mr Willock that, since he was in a room on the 6^th floor, there was no reason to fear escape and his restraints could and should have been removed. But both he and Mr Geen, who also gave evidence, said that it would not have been right to leave him alone and unsupervised having regard to the fears that he might self harm together with the volatility disclosed by his record. Mr Willock accepted that the risk in his case was assessed as low and there was nothing out of ordinary in the escort. The closet chain was used. However, he accepted that once the risk assessment had been made recommending restraint throughout it could (unless there was some emergency) only be varied if the claimant or a medical practitioner requested it in which case instructions would be taken from the Operations Manager on duty. The request would be implemented unless there were good reasons not to do so. He was, he said, unaware of the particular circumstances of the affray at the MP's office.
23. Mr Geen was responsible for the 15 July risk assessment. This had to be done in a hurry since the admission to hospital was urgent. It was only intended to cover 24 hours, and the matter would be considered from day to day on the basis of the reports from the attending officers and visits made by more senior officers such as Mr Willock to check the situation. The previous history records the affray and the 10 month sentence together with threats to self harm. Under 'Current Behaviour' this is said:-

"No information for last month.

Has spent time on Rule 40 in June.

Staff to remain vigilant."

Rule 40 of the Detention Centre Rules 2001 enables a detainee to be removed from association with other detainees "when it appears necessary in the interests of security or safety". The claimant had been complaining of noise and had refused directions to go to his room. He had not shown any violence. Reference was made to the lack of security at Hillingdon Hospital and ratchet handcuffs were recommended at all times. The restraint recommendations were:-

"Restraints to remain in place at all times unless authorised by Duty Manager or in emergency medical situation."

24. Mr Geen's evidence was similar to that of Mr Willock. He accepted that location in the hospital could be relevant. Self harm risk should be taken into account so that to leave him alone in a room should not occur unless he was under permanent observation. He concluded his statement by saying that he believed he should take a cautious approach to public safety when making decisions on whether and the extent to which restraints should be applied. Neither he nor any of the other officers whose statements were provided had been required to take the view that there should be a presumption against restraints while medical treatment was being administered.
25. The visit on 1 September 2010 was for an endoscopy and lasted for about 1 hour. The only additional factor was that on 25 August 2010 the claimant had put a ligature around his neck as an apparent attempt at suicide and certainly self harm. He had as a result been removed from association and was on constant suicide watch. The officer concerned stated in his statement:-

"Although there was no history indicating that the Claimant had tried to escape previously this may simply mean that he had never had an opportunity to do so. There was lots of evidence that the claimant was not thinking rationally and had been on constant watch recently. I looked at him as someone who could clearly do something reckless."

26. The officer concerned with the assessment on 24 September adds little of substance. The only matter noted on the Risk Assessment form is the affray conviction: there is no reference to self harm. The officer makes the point that behaviour in the Colnbrook IRC, a particularly secure unit, is no real guide to the risk which a detainee might pose in an insecure environment such as a hospital. He also refers to the practice where detainees who are HIV positive visit the relevant clinic at Hillingdon Hospital. Because of the confidentiality issue, staff often require removal of restraints. An extra officer may be in attendance in order to guard all exits from the clinic.
27. Mr Southey has submitted that, since the affray conviction was clearly regarded as a very important indication of the need for restraint measures, there should have been an effort to ascertain the circumstances. If that had been done, it would have been clear that no actual violence to anyone had occurred and the MP herself had expressed sympathy for the claimant. The witnesses said they were not required to go further than the criminal record which showed that a sentence of 10 months had been imposed, thus showing it was a relatively serious matter. I do not accept that there is an obligation to go into the details of offences. No doubt if either the detainee or anyone else who can be expected to have knowledge of the circumstances raises matters or if for example a probation officer's report to the court is produced regard will be had to them. But it would be expecting too much of those responsible to impose an obligation to seek the details of any relevant offence even assuming they could be readily obtained.
28. The claimant has made statements describing his experiences at the hospital. He was in considerable pain while in hospital in July, and for much of the time had an intravenous drip. He was in a ward for the first two days and had no privacy. Thus if he needed to go out of his bed he was at all times seen to be restrained by being chained to an officer. This he found humiliating. Thereafter since he was always under restraint he could not shower, go to the lavatory or undress without an officer being present. He had to go from his room to shower or to relieve himself and so again was seen in chains. He complains that officers were present and talking when he was trying to sleep which meant that his sleep was disturbed. There are detailed records kept of his treatment, his giving of blood and urine specimens, discussions with medical staff of problems with his bowels and other medical details. Mr Beer accepts that these details should not have been entered in the Occurrence Record since they are confidential. I understand that instructions have been given so that in future no record is made of any such confidential details when it is necessary for restraints to be applied during medical treatment, investigations or the giving of specimens.
29. The claimant asserts that the handcuffs caused bruising to his left wrist. It is denied that he complained of such bruising and there is no medical evidence to support it. But he did, he says, feel degraded by the restraint and continual presence of officers and this exacerbated his depression. A psychiatric report from Dr Jenny Judge following an interview with the claimant on 6 October 2011 is before me. She notes that the claimant reported a history of depression and in 2008 he was admitted to hospital having drunk poison. While in Liverpool prison he was found to be suffering from symptoms of depression and there were concerns that he might harm himself, particularly following episodes of failing to eat or drink when he said he wanted to die. He received counselling when at Colnbrook on some eight occasions between July and September 2010.
30. It is to be noted that his removal from association under Rule 40 occurred either because he refused to obey an order to return to his room or on one occasion (25 August 2010) because of his apparent suicide attempt. It was because of the concern that he would self harm that his risk was raised from low to medium. But he had not used any violence, subject to the incidents recorded during his stay in hospital which do not seem to have involved any real violence and which stemmed from pain and frustration at not being treated as he saw it properly. Dr Judge gives her opinion that restraint while he was in hospital was not justified. That is not strictly speaking for her to decide as a doctor. She does however deal with the claimant's mental health. In her opinion he suffers from depression and his condition had, she says, deteriorated since being at Colnbrook. Her report was largely directed to an issue which was relied on in the claim, namely that inadequate medical care had been provided to the claimant. That issue has not been pursued. However, she does say that it is in her view likely that the use of the restraints had a detrimental effect on his mental state. I have no reason to doubt that he did find it humiliating and degrading and that Dr Judge is correct in her view that overall it had the detrimental effect she describes.
31. Before turning to the applicable law, I should deal with one submission made by Mr Southey. This was that since this was immigration detention rather than imprisonment following a conviction of crime danger to the public was not a relevant matter to be taken into account in deciding whether restraint was needed. He argued that a British national could not be detained once his sentence was served and so a foreign national detained for immigration purposes should be in no worse position. That submission I reject. A foreign national facing removal is detained because it is believed that it is not safe for him to be at large. This is no doubt in many, perhaps most, cases because it is believed he will abscond. But there is no reason why such detention should not, either in addition to concerns that the individual will abscond or independently, be based on concerns that he or she would be a danger to the public if at large. The detention itself is only lawful if there is a reasonable prospect of removal within a reasonable time, but so long as it is lawful concerns of harm which the individual might occasion if not detained can properly be taken into account. And those concerns can justify the imposition of restraints to ensure not only that the individual remains in custody but that he or she cannot harm anyone while out of the IRC. While, as two of the officers stated, restraints are not normally to be regarded as an appropriate means of preventing self harm, a fear of self harm may in given circumstances justify the presence of an officer or even restraint if that is regarded as necessary.
32. A number of cases both in the ECtHR and domestically have considered whether handcuffing while attending hospital for treatment has amounted to a breach of an Article of the Human Rights Convention. The two relevant Articles are 3 and 8. Article 3 prohibits degrading treatment. In R(C) v Secretary of State for Justice [2009] QB 657 (a successful challenge on behalf of a minor to the relevant Rules on inter alia the ground that in permitting physical restraint for the purpose of ensuring good order and discipline Article 3 was engaged), Buxton LJ with the approval of the other members of the court observed at Paragraph 58 on page 679:-

"We tend to think of obligations under Article 3 in terms of extreme violence, deprivation or humiliation. Convention jurisprudence however makes clear that depending on the circumstances Article 3 may be engaged by conduct that falls below that high level. Two circumstances that have been identified as imposing special obligations on the state are that the subject is dependent on the state because he has been deprived of his liberty, and that he is young and vulnerable."

He went on to cite passages from the judgment of the ECtHR in Selmouni v France (1999) 20 EHRR 403 where in Paragraph 100 this is said:-

"The court considers that … the 'minimum severity' required for the application of Article 3 [is], in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the age and state of health of the victim etc."

The claimant was deprived of his liberty and the application of restraint in the form of handcuffing was used on him. In those circumstances, there is clear authority from the ECtHR accepted in domestic cases that handcuffing during medical treatment can breach Article 3.

33. The decision in the ECtHR which established the approach that should be adopted is Mouisel v France (2004) 38 EHRR 34. The applicant in that case, who had been born in 1948, was sentenced in 1996 to 15 years imprisonment for armed robbery, false imprisonment and fraud. In 1999 he was diagnosed with chronic lymphocytic leukaemia. He attended hospital for chemotherapy on a number of occasions. A medical report in September 1999 had said that his condition was not compatible with the use of restraints on his lower limbs. Notwithstanding this, he complained that his feet had been chained up during the chemotherapy sessions and his wrists had been attached to his hospital bed. Chains had been applied during an operation in late 1999 and he said that this treatment coupled with the presence of gendarmes at all times was particularly humiliating and had led him to refuse consent to treatment in June 2000. In March 2001 he was released on parole with a condition that he undergo medical treatment.
34. The applicant relied not only on the alleged breach of Article 3 in the restraints imposed at the hospital during treatment but also on his continued detention after June 2000. In both respects the Court found a breach of Article 3. For our purposes, the application of restraints during hospital treatment is material, but the Court set out the approach to handcuffing generally in these terms in Paragraph 47:-

"The Court reiterates that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage."

35. In considering the facts of the case, the Court decided that the use of handcuffs was disproportionate to the needs of security having regard to the applicant's health, to the fact that he was being taken to hospital, to the discomfort of undergoing chemotherapy and to his physical weakness. There had been no previous conduct or other evidence which gave serious grounds to fear that that there was a significant danger of his absconding or resorting to violence. The Court cited the recommendations of the European Committee for the Prevention of Torture in these terms:-

" – that all medical check-ups, examinations and treatment in public hospitals take place out of the hearing and – unless the medical staff concerned express otherwise in a given case – out of the sight of law-enforcement officials

that the practice of attaching prisoners to their hospital beds for security reasons be prohibited."

These recommendations were directed at France. While they do not have the force of law here, they are indicative of the sort of approach that should in general be adopted in considering what restraints are needed during visits to hospital for treatment or examination.

36. The use of the word 'restraints' in the citation from Mouisel harks back to Raninen v Finland (1998) 26 EHRR 563 where the Court stated the test to be applied. The case itself concerned a draft evader who had been handcuffed for some two hours during part of which he had been exposed in public. His application failed because the handcuffing had not attained the minimum level of severity required by Article 3, largely because the Court was not persuaded that it had adversely affected the applicant physically or mentally. But in Paragraph 55 the Court said:-

"In order to fall within the scope of Article 3, the ill treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim etc.

Furthermore, in considering whether a punishment or treatment is 'degrading' within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, so far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. In this connection, the public nature of the punishment or treatment may be a relevant factor. At the same time, it should be recalled, the absence of publicity will not necessarily prevent a given treatment from falling into that category: it may well suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others."

37. In Raninen the Court also considered whether there was a breach of Article 8. It decided that it could "not exclude the possibility that there might be circumstances in which Article 8 could be regarded as affording a protection in relation to conditions during detention which [did] not attain the level of severity required by Article 3" (Paragraph 63). He failed on the same grounds as Article 3 in that it had not been shown that the handcuffing had affected him physically or mentally.
38. Uyan v Turkey (Application No 7496/03) in which judgment was given in January 2009 was relied on by Mr Southey. The applicant, a woman, had been convicted of being a member of a terrorist organisation and sentenced to 22 years imprisonment. She had to attend hospital for an ultrasound scan and so was examined by a gynaecologist. Prisoners who had been convicted of terrorist offences had by the relevant requirements of the law to be accompanied when in a place where there were poor security arrangements by gendarmes. She remained handcuffed and there were 3 male gendarmes present while she was being examined. The Court decided that these measures were disproportionate since there were practical alternatives. It said in Paragraph 32:-

"For example, the officers could have secured the room by leaving the female prison guard there and placing one of the gendarmes outside the window of the consultation room."

The Court noted that the doctor and the gendarmes had acted in compliance with the domestic legislation which required the officers to stay in the room but behind a folding screen and far enough away to avoid overhearing the applicant's conversation with the doctor. Handcuffs were not to be removed unless they hindered the medical examination and so long as the doctor did not request their removal. This in the Court's view failed to allow a flexible and more practical approach to be taken depending on the particular risk presented by the prisoner and the type of medical examination. In the circumstances, what occurred must in the Court's view have caused the applicant humiliation and distress. This was a decision by a majority of four to three and there was a powerful dissent in which the minority took the view that the majority had "gone beyond its task by taking the place of the domestic authorities in suggesting which alternative measures could have been taken and in basing its decision on the fact that the Government failed to demonstrate that the applicant did not present an acute security risk". It continued thus:-

"We consider that it is for the domestic authorities to assess the circumstances and to decide which security measures should have been imposed during the examination."

The applicant was a convicted terrorist in a public hospital and it was for the doctor to decide whether the handcuffs limited the examination.

39. Uyan depended on its particular facts. What seems particularly to have concerned the majority was the presence of male gendarmes during a gynaecological consultation and examination. In R(Faizovas) v Secretary of State for Justice [2009] UKHRR 1093 (a case to which I shall return later) Arden LJ considered that the importance of Uyan lay in its focus on security measures at the point of treatment and the ECtHR treated this stage differently from that at which a prisoner was, for example, escorted to the hospital. It highlighted the importance of separate consideration of the necessity for particular measures at the treatment stage. She continued in Paragraph 22:-

"For the first time the doctrine of proportionality led to a review of the type of security measures in the light of the particular type of treatment. While there is nothing new in the application of proportionality in this area, the application of proportionality in this particular way is, at any rate on the authorities we have been shown, new."

The authorities shown were Raninen and Mouisel. She also concluded that the real objection was to the presence of the male gendarmes and not so much to the handcuffs.

40. The most recent ECtHR case upon which Mr Southey relied is Duval v France (Application No 19868/08) judgment in which was given on 26 May 2011. The applicant had been sentenced in 2002 to 15 years imprisonment for rape of a minor. He was then 52 years old. He needed hospital treatment and in particular in 2004 and 2005 attended hospital for cardiological examinations, the second of which took place over 3 days. He was handcuffed and shackled with warders present at all times. He made complaints to the domestic courts and on 20 December 2005 obtained a report from the General Inspectorate of Social Affairs (IGAS) which commented that it seemed that security took precedence over the applicant's privacy and confidentiality and the risk of danger either to himself or to others was poorly supported. A subsequent hospital visit in February 2006 was without restraints and he was released on conditional licence in July 2007. On those facts, the Court observed that it could infer that 'the means of restraint used in the case, consisting of being both shackled and handcuffed at the same time, were disproportionate to the necessity of security'. It went on (Paragraph 50):-

"This assessment is reinforced by the fact that the measures were combined with the constant presence of guards or police officers during the medical examinations, some of which were of an intimate nature."

The Court also took account of the report of the CPT to which I have already referred that medical examinations and consultations should be carried out outside the hearing and – except at the request of the doctor in a particular case – out of view of the court staff. Thus the government had failed to show that the restraints applied together with the presence of the guards was strictly necessary in the interests of security. The use of the adverb 'strictly' is not entirely consistent with the approach accepted since Raminen that handcuffing is normally lawful so long as it does not go beyond what is considered reasonably necessary. The case cited to justify the conclusion, Avci v Turkey (Case No 70417/01) in which judgment was given on 27 September 2006 (of which I have a copy only in French) does not use the adverb, simply stating that the restraint was disproportionate having regard to the needs of security (Paragraph 43). If by using the adverb 'strictly' the Court was applying a higher standard against the state, I think it is not in accordance with the general jurisprudence and so I do not propose to follow it.

41. There are four domestic cases in which restraints of prisoners during hospital visits have been considered. In Spinks v Secretary of State for the Home Department [2005] EWCA Civ 295 the claimant, a convicted murderer, developed cancer of the colon. The claim was mainly directed at the refusal to grant compassionate release, but handcuffing during hospital treatment was raised. Elias J at first instance had concluded that on the facts the use of handcuffs had not reached the level required for Article 3, and Buxton LJ (with whom the other members of the court agreed) commended the following observations which had been made by Elias J:-

"Whilst in any event I do not consider that an over cautious use of handcuffs would infringe Article 3 in Mr Spinks' case, I do wonder whether such rigorous security was necessary when he was in hospital. The authorities will no doubt wish to reflect on the implications of the Mouisel decision and in particular the observations of the European Committee for the Prevention of Torture to which the court made reference. There is something rather Dickensian about clanking chains in the hospital ward. Plainly sometimes it is going to be necessary. One understands the concern that the public authorities have about the public reaction if a prisoner in those circumstances were to become violent or if a violent prisoner were to abscond. It may be that the present policy or at least its application in certain cases is over zealous and that is something the prison authorities may wish to consider."

42. The next case is a decision of Mitting J, R(Graham and Allen) v Secretary of State for Justice [2007] EWHC 2949 (Admin). Mitting J heard similar claims by two prisoners who asserted that handcuffing during hospital treatment breached Article 3 and perhaps Article 8 of the ECHR. Mr Graham developed Hodgkin's lymphoma and his condition deteriorated to such an extent that his doctor said that he was so ill that his chances of his escaping were non-existent and requested that he should not continue to be restrained while in hospital. Notwithstanding this, the restraints were maintained. Mitting J observed:-

"Assessment [of risk] is very much a matter for the prison officials who must make the assessment. Their assessment will ordinarily and properly include the following: the crime for which the prisoner has been sentenced, his previous history of offending, his category as a prisoner, his prison record, his fitness, in appropriate cases, information about his ability of or willingness of others to facilitate his escape, and no doubt many other factors."

43. He further observed that errors in the records which those making the assessment could properly take into account would not render a decision based on them unlawful. On the facts, he found that Mr Graham's Article 3 rights had been breached when handcuffs were applied during chemotherapy and for a period as an in-patient. Mr Allen's claim failed on its facts.
44. In R(JB) v GSL UK Ltd [2007] EWHC 2227 (Admin), Dobbs J had before her a claimant who was suffering from testicular cancer. He was handcuffed during chemotherapy and awoke from an operation to find he was handcuffed. He was a convicted terrorist, and (save for one occasion when handcuffs were removed when he was to supply a semen sample) it was decided that the security risk posed by him outweighed concern at the use of handcuffs. Dobbs J dismissed his claim, observing in Paragraph 26:-

"Those in charge of prisons have an enormous responsibility to shoulder when prisoners are conveyed from prison to other premises. They have a duty to protect the public, their staff, the hospital staff, as well as a responsibility to prevent the commission of criminal offences by one of their inmates, namely escape, and any other offence they may commit. It is well known that hospital visits are when security is at its most vulnerable."

45. R(Faizovas) v Secretary of State for Justice [2009] EWCA Civ 373 I have already referred to. Dyson LJ, who had dealt with the claim at first instance ((2008) 103 BMLR 28), had made the point that low risk did not equate to no risk and the court would be reluctant to criticise assessments made by the relevant officials. He thought that at the highest the case was one of an overcautious use of handcuffs, but that did not of itself render their use unlawful. The Court of Appeal did, however, state that the need for restraints during treatment should be reviewed in the light of both Mouisel and Uyan. The approach should be that handcuffs should be removed during treatment unless the risk of escape or violence creating danger was too high.
46. If the restraint does not on the facts reach the level to breach Article 3, it could breach Article 8. But if the restraint was proportionate in all the circumstances, there would be no breach since the interference with private life would be justified under Article 8(2). Article 8 can however be material insofar as the confidentiality inherent in a medical consultation is a matter which is of very great importance to a person's enjoyment of his right to private life – see Z v Finland (1997) 25 EHRR 371. While that case concerned disclosure of medical records in a criminal case, a requirement that medical consultations be held in private so that details are not disclosed is established by it. In this case, the officers, as indeed their record shows, were present at and heard all that transpired between the claimant and the medical professional concerned. However, it is to be noted that this requirement does not apply to the carrying out of a test such as an X-ray.
47. Mr Southey submitted that there was a failure to consider the question of restraint properly in three main ways. First, there was no separate consideration given to the need for handcuffing during treatment by and consultation with doctors. Secondly, no consideration was given to whether confidentiality in particular and safety in general could be maintained in some other way, for example the provision of additional escorts. Thirdly, the place where the claimant was being accommodated in the hospital was given no independent assessment. The approach was simply to regard the hospital as in general insecure. He submitted that there were three stages to be considered, namely the conveyance to hospital, the awaiting of treatment and remaining as an in-patient in hospital and treatment. He claimed that handcuffing was disproportionate having regard to what was known of the claimant, but recognised that he was on stronger ground if he focussed on the treatment stage.
48. Mr Southey submitted that the approach of the first defendant and its officers was that restraints should be applied at all times while at hospital unless a doctor insisted that they should be removed in which case the views of the senior officer on duty at the IRC would be sought. He relied on reports by HM Chief Inspector of Prisons, who had made an announced inspection of Colnbrook IRC in November 2008 and an unannounced follow-up inspection in August 2010. In the 2008 report, the Chief Inspector said this at Paragraph 8.17:-

"Although detainees attending hospital appointments were risk assessed, poor security at the local hospital, which was the destination for most escorts, was cited a sufficient cause for the use of handcuffs. This meant that, unless a detainee was physically incapacitated and unable to escape, he was always assessed as requiring the use of handcuffs."

The Chief Inspector recommended at Paragraph 8.56:-

"Restraints should not be used during visits to outside medical or dental facilities unless in exceptional circumstances following an individual risk assessment."

49. In the follow up report, it was said that this recommendation had not been achieved and was repeated. The Chief Inspector observed at Paragraph 8.11:-

"Nominal risk assessments were carried out for every detainee being escorted to hospital. However, there was an inappropriate presumption that all should be handcuffed unless there was evidence to the contrary, rather than handcuffed only if there was good reason. In effect, this meant almost all detainees were handcuffed during hospital visits."

50. Whether or not those views are correct, it seems to me that the recommendation that there should only be handcuffing in exceptional circumstances is to apply too high a test. Those making the risk assessment have to decide whether handcuffing is reasonably necessary and so proportionate having regard to all relevant circumstances, which will include the insecure nature of the hospital. The claimant had criminal convictions and the most recent for affray indicated that there had been violence or a threat of violence to others. In addition, he had a history which indicated that he was liable to react to pressure in a disruptive fashion and there was also the possibility of self harm. It was known that he was most anxious to avoid return to Algeria. One of the main reasons for his detention was concern that if not detained he would abscond.
51. In my judgment, what was known of the claimant justified the assessment that he should be restrained during the hospital visit. Having seen and heard the two witnesses who gave evidence, I am satisfied that they did consider in a proper fashion whether restraint was needed. Mr Willock said that he was of course aware that there might have to be treatment and consultation but nevertheless he considered that handcuffing was necessary. Mr Geen was, as I have said, concerned with the first 24 hours and took the same view. It is to be noted that no complaints thereafter were made nor were there any requests from medical staff to remove restraints. Mr Willock recalled that the claimant woke up when he visited on 19 July and, when asked, made no complaint about the behaviour of the officers attending nor of the restraints.
52. I am satisfied that the restraints applied during the three short visits, when tests were carried out, on 10 July, 1 September and 24 September did not breach the claimant's human rights. The episode of self harm in August 2010 had caused the risk assessment to be raised from low to medium, but that did not mean that restraints were disproportionate when the risk was low.
53. I am however concerned at the maintenance of restraint throughout the time the claimant was an in-patient between 15 and 23 July 2010. The witnesses did not accept that the accommodation of the claimant on the 4^th and then the 6^th floors of the hospital, initially in a ward and subsequently in a sideroom, made the application of restraints unnecessary. Each relied on the possibility of self harm and regarded Mr Southey's suggestion that the side room should be locked as unrealistic. But it is clear that the claimant, apart from the two episodes I have identified, was cooperative. He was obviously concerned about his physical well-being. Further, no consideration was given whether during treatment he should be restrained. Similarly, it is questionable whether it was necessary to handcuff him to his bed while he was to be sleeping. The officers' presence in or, if it was possible to see into the room, outside the door was surely all that was needed.
54. I recognise that I must give full weight to the views of those responsible for ensuring that the claimant neither absconded nor harmed himself or others. Nevertheless, it seems to me that there is a presumption that restraints should not be applied during treatment and there should be no attendance within earshot during consultations unless it is decided on proper grounds that such restraints or presence are needed. I do not think it is correct to approach the matter on the basis that restraints and presence will continue unless medical staff request otherwise. I have to decide whether the application of the restraints was at all times proportionate. The claimant has to establish a breach of Article 3. If interference with private life is shown, the state must establish that that interference was proportionate. The evidence of Dr Judge coupled with the claimant's own statements show that he was humiliated and so degraded by the restraints applied while undergoing treatment and when he had a shower or needed to go to the lavatory or provide specimens of urine or faeces. In those circumstances, there is a prima facie breach of Article 3 unless the application of the restraints was proportionate. Whether it was proportionate is for me to decide on all the evidence before me and I do not think that an approach based on a burden of proof as that is normally considered in our adversarial system is appropriate.
55. I recognise that those responsible for escorting detainees and for ensuring that they do not abscond or harm themselves or anyone else have a difficult task. But it must be recognised that restraints involve force applied to an individual and so care must be taken to ensure that the restraints are needed. There was here a failure to appreciate that restraints should only be applied during treatment or more generally while the detainee was an in-patient and so needing to wash and relieve himself and to consult with medical staff if it was regarded as necessary since no alternative was reasonably practicable. In my view, that failure led to restraints being applied at times when they were not needed and accordingly I am satisfied that Article 3 was breached. It perhaps is immaterial for the claimant whether Article 3 or Article 8 was breached.
56. I must now consider the claim against the second defendant. Mr Southey submits that the guidance in DSO 08/2008 is unhelpful because it fails to make clear that there should be a need to assess specifically whether restraint is required during treatment nor does it emphasise that there should be privacy to maintain confidentiality during consultation with doctors. Accordingly it creates an unacceptable risk that a breach of human rights will occur. He relies on two domestic and one ECtHR authorities to support his submission.
57. The ECtHR case is Makaratzis v Greece (2005) 41 EHRR 49. The complaint in that case was the use by the police of firearms. The applicant had driven through a red traffic light and then was chased by the police. There was an issue whether the police fired at his car or, as they said, in the air but certainly guns were fired. The application centred on the positive requirement covered by Article 2 to protect life and so policing operations had to 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 Court was struck by the chaotic way in which the police had acted and by the lack of any proper training or instructions. Further, the law in force was one which dated from 1943 when the Germans were occupying Greece and it failed to identify any proper safeguards in the use of lethal weapons. The Court's conclusion was in these words (Paragraph 71):-

"… [T]he Court considers that as far as their positive obligation under … Article 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 be reasonably 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."

58. Maharatzis was a clear case. The combination of lack of proper training and instructions and legislation which contained no adequate indications of limitations or the use of firearms (save that, according to a Presidential decree, they should only be used as a last resort) meant that there was a real risk of a breach of Article 2. The case turns on it own facts and is not in my view of any real assistance in reaching my decision.
59. R(C) v Secretary of State for Justice (supra) concerned the use of physical restraints on young offenders to maintain good order and discipline. Such restraints, the Court decided, were degrading and an infringement of human dignity and so prima facie contrary to Article 3. Thus the policy permitting such restraints clearly engaged Article 3. The Court decided that the defendant was unable to show that the policy was necessary and so it was struck down because it inevitably would result in a breach of Article 3. Further, there was a complete lack of any safeguards or proper instructions to the staff.
60. Particular reliance is place on a decision of Wyn Williams J in R(Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin). A number of claims were heard together challenging the practice of detaining families with children for immigration purposes. Mr Southey relies on this statement of what the law requires at Paragraph 137 of the judgment:-

"I am content to accept that as a matter of law a policy which cannot be operated lawfully cannot itself be lawful; further, it seems to me that there is clear and binding authority for the proposition that a policy which is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision-making is itself an unlawful policy."

61. I do not quarrel with this. However, it is important to consider the facts of any particular case to see whether whichever policy is being considered is unlawful because it gives rise to an unacceptable risk of a breach of human rights. The second defendant's guidance cannot be expected to descend to great detail. The first defendant is primarily responsible for safeguarding the human rights of the detainees under its control. It cannot rely on the second defendant to spell out all the circumstances which should dictate whether restraints are to be used. While the guidance can I think be criticised for not identifying as clearly as it should that there should be a presumption against restraints during treatment or consultations, that does not in my view render it unlawful. It is intended to give practical guidance but the second defendant is entitled to take into account that the first defendant has the immediate responsibility for any restraint measures. Individual officers were not relying on the second defendant's policy but on the first defendant's instructions and guidance. In all the circumstances, I do not think that the second defendant's policy fails the test set out by Wyn Williams J. The wording is not entirely satisfactory. Thus (iii) under 'Removal of Restraints' should be split so that 'during hospital treatment' stands on its own as a contraindication to the application of restraints and any request by a medical professional should have the same effect. This is perhaps covered by (vi) in any event which suggests that the draftsman may have had in mind that treatment ought to mean no restraints. In a given case if there really is a real risk created by the removal of restraints they can remain, but the circumstances must show a strong risk. In Spinks some 5 years ago the Court of Appeal asked the prison authorities to consider its view that the policy of handcuffing in hospital was over zealous. Little seems to have been done to meet those concerns and I can only express the hope that those observations will not only be noted but applied. If nothing is done claims such as this are more likely to succeed.
62. There was a claim that the first defendant's guidance was defective in two respects. First, it did not contain reference to the second defendant's most recent policy. It now does, but in any event I am satisfied it was not unlawful for the same reasons as I have set out in relation to the second defendant's policy. It is the application in particular cases that matters. Secondly, it is said that it was unpublished. It was available to those who needed to apply it and there was no need for any general publication. Thus the claim against the first defendant's policy fails.
63. The claim against the first defendant succeeds in part, but that against the second defendant is dismissed. I shall hear counsel on any appropriate order, probably if so desired a limited declaration.