QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of Z)
- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and -
||First Interested Party
|- and -
||Second Interested Party
|- and -
|RELIANCE SECURE TASK MANAGEMENT
||Third Interested Party
|- and -
|SECRETARY OF STATE FOR JUSTICE
||Fourth Interested Party
James Eadie QC and David Blundell (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 12-13 February 2013
Crown Copyright ©
MR JUSTICE FOSKETT:
"We … now present findings from our dossier that has reached nearly 300 cases of alleged assault. Many additional allegations of assault have been reported to us that we simply have not had the resources to consider and therefore have not been included in the dossier. Because of this, coupled with the fact that other victims are fearful of coming forward, we feel our dossier is just the tip of the iceberg."
"48% of the assaults occurred at the airport before the detainee was placed on the plane and 12% took place in the transport van on the way to the airport. 24% of alleged assaults took place on the aeroplane before take-off and 3% after take-off. 7% took place in the van back to the detention centre after the removal had already failed and 6% took place within detention centres."
"12. There should be a review of the training provided for the use of force, and of the annual retraining, to ensure that, in any case in which force is used, officers are trained to consider constantly the legality, necessity and proportionality of that use of force.
13. On all occasions on which force is used, officers should be required to justify that use of force by reference to the necessity, proportionality and legality of the particular use of force.
14. There should be a review of the circumstances in which handcuffs are used and of the type of handcuffs used. In particular there should be clear guidance given to staff in relation to the occasions on which it is necessary and proportionate for people to be handcuffed at all, and when it is necessary to handcuff them behind their backs. The guidance should also include consideration of how people's toileting and personal hygiene arrangements should be provided for. This review should include the circumstances in which people may be handcuffed whilst receiving medical treatment and whilst hospitalised.
15. The existing instructions proscribing the pulling of handcuffed individuals by the handcuffs should be re-issued to all staff to ensure that there is compliance with the law.
16. In all circumstances in which force is used, every care should be taken to protect the privacy and dignity of the individual being restrained.
17. There should be a review of the control and restraint techniques and of the Guidance used to determine what improvements could be made. Such a review should encompass consideration of control and restraint training and the physical techniques used in mental health establishments."
"88. I have made inquiries about the response to this document. The Director and two Deputy Directors in post at the time have since left UKBA. Colleagues in Returns Directorate have searched paper records and the electronic files of these staff. (Electronic files do not go back to 2008 or 2009. Home Office IT colleagues have advised us they are unable to restore files which are this old.) I have also spoken to the NOMS [National Offender Management Service] staff who produced the note or were involved at the time.
89. We can find no evidence of what action the UKBA took following the 2008 note. We believe it was received because we did find an instruction which G4S issued to their staff in September 2008 with a quotation from Jon Collier picking up on recommendation nine from the 3 July report."
"An immediate recommendation from this review is that there must be no use of the head support position. This is not a position that we have shown in our training but it is worth re-emphasising the point to ensure that there is no misunderstanding.
The head support position is where the detainee's head is controlled by pushing it into their lap, similar to the "crash position". Medical advice suggests that use of the head support position in a confined space can increase the likelihood of positional asphyxia. The risk is heightened when the detainee is in an excited or distressed state."
"A degree of positional asphyxia can result from any restraint position in which there is restriction of the neck, chest wall or diaphragm, particularly in those where the head is forced downwards towards the knees. Restraints where the subject is seated require caution, since the angle between the chest wall and the lower limbs is already decreased. Compression of the torso against or towards the thighs restricts the diaphragm and further compromises lung inflation. This also applies to prone restraints, where the body weight of the individual acts to restrict the chest wall and the abdomen, restricting diaphragm movement."
"1. That a facility be sought to provide training in … realistic scenarios. More specifically this would involve an aircraft with centre [aisle] and passenger seats on both sides which replicates the chartered aircraft currently being used.
4. Develop a system for use of mechanical restraints, this to include Handcuffs, leg restraints, spit hoods and body restraints. Re-assess the current type of handcuffs being used for escort procedures.
5. Techniques are developed that are applicable when fewer than three staff are present. This to include restraint techniques in a seated position."
"On a separate issue the difficulties being experienced by the overseas escort team was discussed. At present they are trained in C&R and PCC, however this presents numerous concerns when it comes to physical restraint on an aeroplane or in the back of an escort vehicle on the road."
"Whilst I can understand NOMS position, I am equally not sufficiently convinced that us turning to the police is necessary (sic) the right approach, and given the synergies of our estate and already close working relationship on a number of other areas, I would be grateful if you might reconsider whether or not the remit of the mechanisms and personnel involved in the development and accreditation restraint techniques might be broadened to encompass the boarding of aircraft. I appreciate that there may be a cost attached to this work, and I would be open to discussing with you what that might be and how UKBA contributes."
"For some time, we have felt vulnerable in relation to the techniques used by escorts when boarding non-compliant detainees either in and out of vehicles but in particular on and off aircraft. One of G4S' home trainers has adapted a number of techniques for use in such situations, which I understand NOMS have reviewed. Again, I am told that there were no concerns raised, but NOMS felt at the time unable to accredit them as they do not fall within your core business.
This point has recently been picked up by the Independent Panel reporting to the Ministerial Board on Deaths in Custody, whose draft report on restraint (which is due to be presented to Ministers ahead of the next Board meeting on 21 October) makes a recommendation that we work closely with other agencies to find ways of accrediting these techniques. To quote the (draft) report:
"However, the IAP is aware that the three-person restraint techniques used by prison staff are often not appropriate for use on aircraft given the space restrictions on board, and further work is needed to address this gap.
The IAP suggests that UKBA continue to work with custodial sectors, particularly those sectors with experience of restraining individuals within confined spaces such as the police, to develop techniques based on best practice and to identify an appropriate accreditation route.""
"We have, however, only partially addressed recommendations about the use of restraint. Some required reminders to be issued to staff, which have been completed. Others are dependent on the NOMS review on restraint. You are aware of the difficulties we had in seeking NOMS agreement in the first place to conduct the review, and then having secured agreement, the difficulties NOMS faced following the Spending Review in relation to resources required. However, the review is now underway, and we anticipate receiving a report on the use of restraint by overseas escorts by the end of August. This will only outline the findings of the review; implementation of any recommendations will have to follow thereafter once we understand what they are and any associated costs."
"The experts suggested 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, the experts criticised the lack of specific training by G4S for use in restraint on board an airplane. However, G4S followed training recommended by the UK Border Agency and the National Offenders Management Service, which had been found to be 'safe and fit for purpose' after official review. I am, therefore, not satisfied that a jury would find any potential failure in the G4S training to be considered criminal.
However, in light of my conclusions regarding the various training issues, the Director of Public Prosecutions has asked me to write to the UK Border Agency, the National Offender Management Service and G4S to highlight the concerns raised by the experts in this case…."
"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." (Emphasis added.)
"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 systems 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."
"The Person Escort Record (PER) has now been adopted by the UK Border Agency and records the result of the risk assessment process. It has a dedicated section for healthcare clinicians to complete to highlight medical and mental health issues, as well as suicide and self-harm risk factors. The purpose of the PER is to ensure that all staff transporting and receiving detainees are provided with all necessary information about them, including any risks or vulnerabilities that the person may present."
"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 regarding 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."
"We take the opportunity to raise here our concerns about the evidence we have received about shortcomings in the application of the rules governing enforced removals from the UK. We took oral evidence on this subject from Lin Homer on 9 November and earlier from G4S, whose contract with the Government in respect of such removals has not been renewed. We may revert to this subject at a later date, but we are not at all convinced that the UK Border Agency is being effective in making sure that its contractors provide adequate training and supervision of their employees in respect of the use of force. This is a fundamental responsibility of the Agency and is not simply a matter of clauses in contracts or formal procedural requirements."
"The current Use of Force training supplied to UKBA and it contractors … is designed to be used in a custodial environment. Whilst many of the techniques contained within the training are suitable for many environments encountered by staff in UKBA, there are some environments where this training is lacking. These environments are: escorting vehicles, airports and aircraft. In addition there are some differences between prisoners and detainees that affect the Use of Force, mainly that Use of Force is often used in a public place under escort where there is the danger of misinterpretation by the public about what is going on and/or the risk of the public seeking to intervene. In a custodial environment, such as a prison, there is very limited possibility of the public viewing the Use of Force and intervening. From the observations that were undertaken, it was identified that contractor staff have a normal ratio of 2 staff to 1 detainee (unless a risk assessment suggests a higher ratio is required). The potential for a third escort's safe participation in Use of Force on an aircraft is impacted by the configuration of the aircraft, e.g. they are generally only 3 seats wide, which only allows space for 1 detainee and 2 escorts. If there is a 3rd escort, he or she has to be seated in the row in front and would have to lean over the seat which is not ideal and cannot be achieved during take-off, ascent, descent and landing. The 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."
"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."
"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."
"Use of Force training can only be conducted by Instructors who have current, valid accreditation from either of the Prison Service National Training Centres …. Local Instructors are only authorised to provide Use of Force training to Prison Service staff and contracted out staff within establishments, and employees of the escort contractors."
"1. The Contractor must ensure that force is used only when necessary to search a detainee, to keep a detainee in custody, to prevent violence, to prevent destruction of the property of the contractor or of others and to prevent detainees from seeking to prevent their own removal physically or physically interfering with the lawful removal of another detainee.
3. The Contractor must use and purchase training for control and restraint techniques from the Prison Service for England and Wales. Advanced training should be carried out by the Prison Service training establishments for England and Wales. Basic training may be carried out by the Contractor's own instructors provided that they have been trained and currently certified by the Prison Service for England and Wales.
6. All incidents involving the use of force must be properly authorised, recorded by the Contractor and reported to the Contract Monitor. Every such incident must be examined by the Contract Monitor and, where any concerns arise, the incident must be investigated. The Contract Monitor must keep a record of outcomes.
8. The Contractor must ensure that staff are trained in the use of force (see separate standard on Personnel: Staff Training).
9. The Contractor must have a system for recording all incidents where use of force is applied and to monitor that use."
"An officer in dealing with a prisoner shall not use force unnecessarily and, when the application of force is necessary, no more force than is necessary shall be used.
All reasonable efforts must be made to manage violent, refractory or disturbed behaviour by persuasion or other means that do not entail the use of force. The use of force must always be regarded as a matter of last resort." (Emphasis as in original.)
"Where extreme or excessive force is applied, or where the application of force is maintained for longer than necessary (even if its use is to achieve a lawful aim) this may amount to torture, inhumane or degrading treatment.
This may include the unnecessary/prolonged use of ratchet handcuffs."
"No More Force Than Is Necessary
No more force than is necessary shall be used. Any greater force than is necessary could be deemed as unlawful.
Proportionate In the Circumstances
Staff should demonstrate a reasonable relationship of proportionality between the means employed and the aim pursued. Action taken is unlikely to be regarded as proportionate where less injurious, but equally effective alternatives exists.
The nature of incidents are so diverse that it is not realistic to cover every possible scenario. For this reason, there will always be occasions when individual officers resort to techniques that are not described in this manual. In such circumstances, the actions of the officer will not necessarily be wrong or unlawful, provided that they have acted reasonably and within the law. In all circumstances where force has been employed the individual concerned must account for their own decisions and actions."
"Staff who use force on a prisoner are accountable for their own actions and cannot rely on their status or orders received to justify their actions. Following any incident where force has been used:
- every member of staff must record the circumstances that lead up to the use of force,
- reasons for the level of force used and
- any other relevant information relating to the circumstances
(See Section F – 'Use of Force Report Writing' for further information)"
"When in a conflict situation we should have one of three objectives, these are:
- Avoid danger
- Defuse the situation
- Control the situation"
"Defuse the Situation
It has always been recognised that our best defensive weapon we have are our verbal and non-verbal communication skills. Staff who successfully adopt effective communication strategies will find that they are able to defuse a potential conflict, however even when adopting the most reasonable of approaches, it must be recognised that a member of staff may at times have no other option than to use force.
Control the Situation
Adopting an approach that is positive, assertive and confident will help to reduce the likelihood of becoming the victim of unwelcome attention.
Controlling a conflict that has escalated beyond verbal reasoning may entail using force. However, all staff must make their own decision about how to act in a particular situation and should take into account the circumstances at the time.
Where Control and Restraint techniques aren't practical members of staff must resort to other means of protection (e.g. Personal Safety techniques).
Techniques for Personal Safety in this manual are intended to be effective and efficient and utilise gross motor skills."
"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. A member of health care staff must, whenever reasonably practicable, attend every incident where staff are deployed to restrain violent or disturbed prisoners.
It has to be stressed that the onset of a serious medical condition following the application of physical or mechanical restraints is extremely rare – however it has been known, and prisoners in both prison and police custody have died as a result of being restrained." (My emphasis.)
"Situations that need to be particularly closely monitored are:
- relocation of the prisoner - Staff must satisfy themselves that the prisoner is not in a physically distressed condition following relocation
- periods during which the prisoner is / has been laid in the face-down (prone) position. A prisoner must never be kept in the prone position with their hands held behind their back in ratchet handcuffs
- the use of C&R on a pregnant prisoner
One or more of the warning signs must alert staff that they need to be particularly vigilant in monitoring the prisoner's responses, and that they must be prepared to treat the incident as a medical emergency. Monitoring the prisoner's breathing will also assist C & R staff in judging whether the prisoner is in need of urgent medical attention.
IF A MEDICAL EMERGENCY OCCURS THE PRISONER MUST BE RELEASED FROM ALL HOLDS AT ONCE AND MEDICAL ADVICE MUST BE SOUGHT IMMEDIATELY."
"The Instructor must be satisfied that staff have an understanding of when force may be used and that the use of force is reasonable and proportionate in the circumstances as they perceive them.
The purpose of these techniques is to prevent an assault without increasing the risk of injury to the prisoner or staff.
The use of force must only be the force necessary in the circumstances – the aim is always to get away from the violent situation as quickly as possible."
"ATTACKS FROM THE REAR
Any attack from the rear will be unexpected. The attacker will have the element of surprise.
The rest of this section has been redacted. It describes the principles to be applied when dealing with an attack from the rear."
"DEFENCE AGAINST FIREARMS
This section has been redacted. It describes general techniques to be deployed in situations where an officer believes that an armed prisoner is about to use the firearm and their life is in imminent danger."
"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 involving 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 or 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 as in original.)
"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."
"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 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."
"A member of the healthcare staff must attend, whenever reasonably practicable, every incident where staff are deployed to restrain violent or disturbed prisoners.
When healthcare staff are on duty they must attend a planned C&R intervention.
The member of healthcare staff must monitor the prisoner and members of the C & R team, and provide clinical advice to the supervisor and/or team in the event of a medical emergency. Any clinical advice offered must be adhered to by the supervisor and/or team."
The legal submissions
"58. As the text of Article 2 itself shows, the use of lethal force by police officers may be justified in certain circumstances. Nonetheless, Article 2 does not grant a carte blanche. Unregulated and arbitrary action by State officials is incompatible with effective respect for human rights. 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 Article 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 (see McCann and Others v. the United Kingdom …). 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 (see, for example, the "UN Force and Firearms Principles", paragraphs 30 to 32 above).
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."
"62. At the time of the events in issue, however, the applicable legislation was Law no. 29/1943, dating from the Second World War when Greece was occupied by the German armed forces …. That statute listed a wide range of situations in which a police officer could use firearms without being liable for the consequences. In 1991, a presidential decree authorised the use of firearms in the circumstances set forth in the 1943 statute "only when absolutely necessary and when all less extreme methods have been exhausted" …. No other provisions regulating the use of weapons during police actions and laying down guidelines on planning and control of police operations were contained in Greek law. On its face, the above, somewhat slender, legal framework would not appear sufficient to provide the level of protection "by law" of the right to life that is required in present-day democratic societies in Europe."
" … the Court considers that the degeneration of the situation … 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 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 …".
"44. Accordingly, and with reference to Article 2 § 2 (b) of the Convention, the legitimate aim of effecting a lawful arrest or preventing the escape of a person lawfully detained can only justify putting human life at risk in circumstances of absolute necessity. The Court considers that in principle there can be no such necessity where it is known that the fleeing person poses no threat to life or limb and is not suspected of having committed a violent offence, even if failure to use lethal force may result in the opportunity to arrest the fugitive being lost (see the Court's approach in McCann and Others v. the United Kingdom … and, more recently, in Makaratzis v. Greece ….)
45. In keeping with the importance of Article 2 in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination. In determining whether the force used is compatible with Article 2, it may therefore 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 ….
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 …). In line with the above-mentioned principle of strict proportionality inherent in Article 2 (see McCann and Others …), 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 avoidable accident (see Makaratzis …). 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 (see the Court's criticism of the "shoot to kill" instructions given to soldiers in McCann and Others …)."
"Apart from requiring a general warning that a firearm would be used, [Article 201 of the Statute of Garrison and Sentry Service] 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 or she posed. The Court observes that under the regulation in question it was lawful to shoot any fugitive who did not surrender immediately in response to an oral warning or the firing of a warning shot in the air …. The laxity of the regulation on the use of firearms and the manner in which it tolerated the use of lethal force were clearly exposed by the events that led to the fatal shooting of the applicant's son."
"68. It was undisputed that the applicant's son was subject to ten days' detention for a non-violent offence. On 15 February 2002, following an altercation with junior sergeant L., both the applicant's son and Mr L. were sent to the military hospital for a medical examination. On the way back from the hospital, the applicant's son started running away from his sentry, Mr L., and escorting officer K. His attempt to escape was accompanied by foolishly inviting the officers to catch him but did not involve any use of violence. He was not armed nor did he represent a danger to the convoy or third parties, a fact of which both Mr L. and officer K. must have been aware.
69. Having regard to the above, the Court considers that in the circumstances of the present case any resort to potentially lethal force was prohibited by Article 2 of the Convention, regardless of any risk that the applicant's son might escape …. It is the Court's long-standing approach not to consider recourse to potentially deadly force as "absolutely necessary" where it is known that a person escaping from lawful detention poses no threat to life or limb and is not suspected of having committed a violent offence.
70. In addition, the conduct of Mr L., the junior sergeant who shot the applicant's son, calls for serious criticism in that he used grossly excessive force. It appears that there were other means available to prevent the applicant's son's escape. The applicant's son began his attempted escape in the grounds adjacent to the military hospital. He passed through the guarded gates of the hospital grounds without any attempt being made to stop him. He then continued running towards the checkpoint of the military unit, being observed by soldiers guarding it. However, once again no one tried to stop him. Furthermore, officer K. was in hot pursuit after the applicant's son, with merely twenty metres separating them when Mr Putintsev was shot. The personnel of the military unit had cars. The applicant's son was running in the middle of the day, along the road between two long fences separating different parts of the grounds of the military unit. He would have been clearly visible for sufficient time to find an alternative solution to the hasty decision to open fire. Moreover, the applicant's son's behaviour was apparently predictable, since, during his previous unauthorised leave, he had been found in the local village closest to the military unit's grounds.
71. Finally, the Court is unable to overlook other aspects of the authorities' conduct preceding the actual use of force. It was known to the commanding officers that the applicant's son, who had experienced psychological problems in adjusting to the life in the army, suffered from depression and had already once left the unit without authorisation, was prone to repeat his attempt to leave military service. While the applicant's son was warned of the consequences of any further attempt to escape, there is no indication that Mr L. received clear instructions about the amount of force necessary in the event that the applicant's son made a repeated attempt to escape or that Mr L. was provided with some guidance to minimise the risk of loss of life. Furthermore, the Court finds it open to criticism that Mr L., the same person with whom the applicant's son had a physical altercation shortly before the shooting, was entrusted with the task of escorting him to the hospital. While the Court is aware of officer K.'s presence in the convoy, it was Mr L. who was performing the duty of an armed sentry and it was he who took the decision to use force to prevent the escape. Although the Court must be cautious about revisiting events with the wisdom of hindsight …, it cannot but conclude that the applicant's son's convoy was organised in an unconsidered manner and that the decision taken by the commandant to entrust Mr L. with the task of escorting the applicant's son lacked the necessary degree of caution. It follows from the above that the authorities failed to minimise to the greatest extent possible recourse to lethal force and any risk to the life of the applicant's son."
"40. An important part of the removal process is the carrying out of risk assessments in relation to each returnee. Reliance conducts a risk assessment for each movement based on information provided by UKBA and the establishment where the individual has been detained.
41. A Senior Escorting Officer briefs the team involved in the removal on a range of matters such as routes, timings and a risk assessment of the individual to be removed. The 'team' will usually include the relevant number of DCOs tasked to the removal based on risk assessment, a medic if tasked to the removal and the driver. DCOs are provided with a risk assessment for the individual that will include known factors such as medical conditions, the risk of self-harm, likelihood of any attempt to escape, and relevant background information such as any known criminal activity or violent behaviour.
42. The ratio of staff to detainees under escort is dependent on this risk assessment. If the individual is likely to be non-compliant or violent, and is flying by scheduled flight, at least three staff will escort the detainee in anticipation of lawful force having to be used which includes control and restraint where three staff are required to fully apply control and restraint. The ratio for charter flights will vary but again the number of escorts on the flight will allow three or more staff to be used if control and restraint is necessary.
43. A medical escort is present whenever Reliance believes it is appropriate, based on the risk assessment and medical conditions. Individuals assessed as being likely to be non-compliant or violent are likely to be removed with a medical escort to assess the detainee's health before/during/after any incident of restraint. The level of medical training of the 'medical escort' will be appropriate for the needs of the individual being removed, i.e. a paramedic may be more appropriate than a doctor, or a First Person on Scene qualification may be sufficient in other circumstances. However, when appropriate and indicated by the risk assessment, a doctor will be provided."
"DCOs are required to report any use of restraint or use of handcuffs, even if used as a precautionary measure following a risk assessment. Each DCO involved in a use of force incident is required to complete a report independently and to set out why the detainee was restrained and what occurred during the incident, including attempts to de-escalate the situation. It should also give the names of others present. This is covered in the initial training."
"In this context, there was, in my judgment, value in the promptly conducted PSU investigation. It was not independent of government but it was thorough and systematic and involved the marshalling and retention of a considerable amount of evidence. To debate at this stage whether or not its conclusions were sound is not the point; what has to be considered is its relevance to the article 3 procedural duty and, in my judgment, its content gives it significant relevance."
"In general, we saw a removal that was well planned and efficiently managed. We found a number of improvements when compared to our previous inspections. Extra staff were appropriately stood down to maintain an approximate staff-detainee ratio of two to one, and some efforts were made to avoid unnecessary crowding of detainees. Importantly, we heard none of the inappropriate and abusive language that was previously evident. Most staff made good attempts to relate to detainees, and behaved in a polite fashion. However, they were hindered by the lack of interpretation. It was hard to understand why this was not used at any point to allay the obvious anxiety felt by some detainees and to explain what was happening. Some basic elements of respectful treatment were also lacking, such as being able to use a toilet in privacy.
There was still evidence of some risk-averse and heavy-handed practices which served to escalate rather than calm tensions; and evidence from previous flights also showed excessive use of handcuffs and some unprofessional and even goading behaviour by a small number of staff. It is a particular concern that more than a year after our first inspections, there remains no accredited training for use of force in the confined space of an aircraft. Indeed, some staff were clearly making up some untested techniques ad hoc.
The preparation of detainees for arrival was generally weak with information given out that was irrelevant to most. There was no particular focus on help that might be available for detainees on arrival.
These are all weaknesses that need to be addressed by the UK Border Agency and by the escort contractors. But overall, this overseas escort was handled efficiently and more respectfully than previously, and showed encouraging improvements. We will expect ongoing incremental improvements as we continue this programme of work." (My emphasis.)
i) There has 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 shows a high risk of 'C and R' being required, someone with medical training will be assigned to the removal.
iii) Although not officially "approved" or "accredited", G4S did adapt a number of the techniques used in such situations which were reviewed by NOMs and no concerns were raised.
iv) There is a degree of independent scrutiny of the process of removals.
"The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute …. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it …."
"The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. It is not practicable to attempt an exhaustive definition. It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made."
"Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice-…
(f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained…".
"Information is exempt information if its disclosure under this Act would, or would be likely to-
(a) endanger the physical or mental health of any individual, or
(b) endanger the safety of any individual."
"16. The basis for the stance of the MOJ is that prisoners who may be subject to the techniques for physical restraint detailed within the manual could learn the details of these techniques. This could, in turn, enable these prisoners to counteract these techniques. If it were not possible to effectively restrain disruptive prisoners through the use of these techniques, this would be likely to prejudice security and good order.
17. The argument of the MOJ is supported by the content of the manual, which includes great detail about the physical restraint techniques and how to become competent in performing these. The MOJ has also informed the Information Commissioner that there have been several instances where prisoners exposed to the control and restraint techniques have been able to memorise and counteract these methods and that therefore having the requested information available in the public domain would further increase the opportunity to do this. Whilst unable to give an expert opinion on the possibility of being capable of counteracting these techniques as a result of familiarity with the manual, the Information Commissioner having carefully considered the remaining withheld information accepts that there is a causal link between the disclosure of some of the requested information and the prejudice argued and given the level of detail within the manual, the possibility is sufficient to meet the prejudice test. However, in relation to the information described in annex A and identified in the confidential annex B and for the reasons specified in that annex, the Information Commissioner does not accept that the test has been met.
18. As to the likelihood of this possibility actually occurring the MOJ stated in its response to the Information Commissioner that physical restraint was used on 19,000 occasions in prison establishments between 1 April 2010 and 31 March 2011. This suggests that physical restraint is used regularly. This also suggests that any prejudice likely to result through the inability to use physical restraint effectively would occur relatively frequently.
19. The conclusion of the Information Commissioner is that the likelihood of prejudice to the maintenance of security and good order in prisons resulting from disclosure of the withheld information, other than that described in annex A and identified in the confidential annex B, would be real and significant. The exemption provided by section 31(1)(f) is, therefore, engaged. He is not aware that previous disclosures have, to date, dramatically increased the prejudice to security and good order in prisons. However, the Information Commissioner notes that the disclosure in the YJB case related to young people in Secure Training Centres and is reluctant to disengage the exemption due to the nature of the information requested and the fact that he has been informed prisoners have more recently demonstrated being able to learn techniques by experience alone. The conclusion that the exemption is engaged in relation to some of the information is based on the level of detail included within the content of the information withheld and on the statistic suggesting that physical restraint is used relatively frequently."
"The Information Commissioner notes that there is a distinction between the use of distraction techniques on young people in Secure Training Centres and restraint techniques used by prison officers in prisons. He concludes that the public interest in maintaining the exemption outweighs the public interest in disclosure. Whilst the Information Commissioner acknowledges the public interest in full disclosure of information about the use of control and restraint techniques in prisons in order to inform debate about concerns around this issue he considers, in the particular circumstances of this case, the public interest in the maintenance of security and good order in prisons significantly outweighed this."
"33. The MOJ identified two parties in relation to whom it believes the endangerment would be likely to occur. First, the public in general. The MOJ believes that disclosure would be likely to lead to individuals outside prisons attempting the techniques outlined in the manual. The public authority further believes that attempting these techniques without appropriate training would be likely to endanger the physical health and safety of those individuals.
34. Secondly, the MOJ argued that endangerment would be likely to result to prison staff and prisoners. As argued in connection with section 31(1)(f), the MOJ believes that disclosure of the contents of the manual would be likely to enable prisoners to counteract the techniques and thus it may not be possible for a violent, disruptive prisoner to be effectively restrained. The MOJ further argued that this lack of effective restraint of a violent prisoner would be likely to endanger the physical health and safety of both prison staff and prisoners, including both the prisoner who cannot be restrained and other prisoners. The MOJ also argued that an uncontrolled violent situation would be likely to endanger the mental health of those present."
"The conclusion of the Information Commissioner, in the particular circumstances of this case, is that the public interest in maintenance of the exemption outweighs the public interest in disclosure. This conclusion is based on the benefit to the health and safety of both prison officers and prisoners that may result through withholding the information from the public domain and conversely, the harm that may result to both through disclosure of the information. Whilst the Information Commissioner recognises the public interest in overall transparency and the value to public debate the information if disclosed would add, he does not consider this factor to carry sufficient weight to tip the balance of the public interest in favour of disclosure."
"If the Young Person initiates movement that results in themselves and the staff going to the ground:
The role of the No 1 during this movement is to control and protect the young person's head. This will be achieved by maintaining the head support position, ensuring that the No 1's forearm makes contact with the ground first, protecting the young person's face. Once the No 1's forearm has made contact with the ground, the young person's head will be turned to one side. To control and protect the young person's head on the ground, the No 1 will position their knees, one to the rear of the head and one alongside the forehead of the young person.
Note. A pregnant young person must not be held face down on the ground.
THE KNEE THAT IS POSITIONED ALONGSIDE THE FOREHEAD OF THE YOUNG PERSON MUST NOT PROTRUDE PAST THE FOREHEAD AS THIS COULD INTERFERE WITH BREATHING.
The No 1's hands, without undue pressure, should assist in securing and protecting the head against injury.
Care should be taken to ensure that the No 1's hands do not interfere with the young person's hearing.
…THE ROLE OF THE NUMBERS 2 and 3
If either or both of the two members of staff have a securing hold on the young person's arm they will convert it to a Figure of Four hold. If they do not have a secure hold they will control the arm until they can convert it to a Figure of Four Arm hold by using their knee beneath the young person's elbow in order to secure the arm.
This is achieved by keeping the young person's arm held to the floor. The young person's lower arm is then moved so that it is at an approximate right angle to the young person's upper arm.
The member of staff's outside hand takes a palm up grip of the young person's lower forearm. The member of staff's inside hand is passed under the young person's shoulder and across the young person's forearm into a Figure of Four Arm hold. To strengthen the hold where necessary the members of staff will draw the young person's bent arms back slightly.
Once control of the young person's arms is gained the No's 2 and 3 will inform the No. 1 that they have control of their respective arm. At this point the No. 1 will
• Check the condition of the young person.
• Check the condition of the staff.
If any staff received any injuries or are showing signs of fatigue they can be replaced at this stage. If the young person shows any sign of injury or restraint related distress, then the holds are to be released and medical assistance sought."
"When conducting the balancing exercise between the two competing aspects of the public interest, the court may, in an appropriate case, inspect the material before reaching a conclusion on the issue…."