FI, R (On the Application Of) v Secretary of State for the Home Department

The primary issue in this appeal is whether the use of control and restraint on persons being removed by aircraft from the United Kingdom is subject to a sufficient framework of safeguards to meet the requirements of Articles 2 and 3 of the European Convention on Human Rights (“the ECHR”). The appellant’s case is that, in breach of the obligation imposed by those articles, the respondent Secretary of State has failed to develop and approve techniques for the use of force in the specific environment of an aircraft, and to train staff how to use force in that situation, so as to minimise to the greatest extent possible any risk to life or risk of harm. The policy on the use of force is also said to be unlawful under domestic law on the ground that it gives rise to an unacceptable risk of unlawful action in individual cases.

A secondary issue is whether the Secretary of State’s decision not to publish parts of the existing policy, as set out in the Use of Force Training Manual (“the Manual”), is unlawful.

In relation to those issues, Foskett J dismissed the claim for judicial review brought by a claimant referred to as Z: see [2013] EWHC 498 (Admin). In granting permission to appeal, Pitchford LJ permitted the substitution of a new appellant, a woman referred to as FI who had been subject to restraint by a number of officers within an aircraft during an unsuccessful attempt to remove her in September 2011. The case does not depend, however, on the individual circumstances of either FI or the former claimant. The arguments concern the framework itself, not the use of force on a specific set of facts.

This judgment proceeds as follows. First, I will explain the legal basis of the use of force in effecting removals from the United Kingdom. I will then describe the Manual, the respects in which it is alleged to be deficient, and the relevant factual history. Many of those matters are dealt with at length by Foskett J, which enables me to cut back on some of the detail. Having set out the background, I will consider the issues in the appeal.

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

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

Private security firms who contract to provide overseas escort services are required to ensure that where control and restraint procedures are used, they are those approved by the Prison Service. The approved techniques are set out in the Manual, the latest version of which was published (in redacted form) in 2006 and runs to 100 pages. The Manual is summarised at paragraphs 54-73 of Foskett J’s judgment.

Section B of the Manual contains general guidelines on the use of force. It emphasises the need for a sound understanding of the law on the use of force and refers to the requirements of domestic law and of the ECHR, including Articles 2 and 3. Paragraph 1.1.5 states that several common principles are apparent: force may be used only when it is reasonable in all the circumstances and necessary, and the force used must be no more than is necessary and must be proportionate to the seriousness of the circumstances. In relation to proportionality, one of the points made is that the nature of incidents is so diverse that it is not realistic to cover every possible scenario, and for this reason there will be occasions when individual officers resort to techniques that are not described in the Manual. The text states that in such circumstances the actions of the officer will not necessarily be wrong, provided that they have acted reasonably and within the law; and that in all circumstances where force is used the individual concerned must account for their own decisions and actions. That last point is picked up in paragraph 1.2, on handling confrontational situations, where the further point is made that following an incident where force has been used every member of staff must record the circumstances that led up to the use of force, reasons for the level of force used, and any other relevant information relating to the circumstances. Report writing is the subject of an entire section later in the Manual (Section F).

Section C sets out medical considerations. Paragraph 1.1, headed “Medical warning signs”, states that it is extremely important that staff involved in applying restraints or using force of any kind are aware of the signs and symptoms that may indicate that a prisoner is in distress; it may be the case that an incident should be treated as a medical emergency rather than a control and restraint incident; and a member of health care medical staff must, whenever reasonably practicable, attend every incident where staff are deployed to restrain violent or disturbed prisoners. It stresses that the onset of a serious medical condition following the application of physical or mechanical restraints is extremely rare but has been known, and prisoners in both prison and police custody have died as a result of being restrained. Details are given of the signs for which officers should look when a violent prisoner is being restrained. The text emphasises that if a medical emergency occurs the prisoner must be released from all holds at once and medical advice must be sought immediately. Paragraph 1.2 deals specifically with positional asphyxia. Among other matters, it advises that a degree of positional asphyxia can result from any restraint position in which there is restriction of the neck, chest wall or diaphragm; it sets out warning signs; and it specifies the action to be taken, namely immediately release or modify the restraint as far as practicable to effect a reduction in body wall restriction, and summon medical attention.

Section D concerns officers’ personal safety. Among other matters, it deals with communication skills; it advises that the majority of situations where there is a potential for violence can be handled through communication; it sets out a strategy for defusing situations; and it details a variety of defensive techniques and disarming techniques, which are subject to extensive redactions.

Section E relates to control and restraint basic techniques. The introduction includes the following:

The first subsection within Section E relates to “planned removal”. Its introduction reads:

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

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

The appellant’s essential complaint about the Manual is that the techniques described in it and on the basis of which training is given were developed for use in and around prisons and are often unsuitable for use in the specific environment of an aircraft cabin.

One example is that the Manual’s section on planned removals describes techniques for use by a three-officer team. For removals by aircraft, however, the ratio of contractor staff to detainees is often 2:1. Where only two staff are available for the exercise of control and restraint, one of the roles assigned by the Manual to the Numbers 1, 2 and 3 in a team (control and protection of the head, and control of each of the arms) cannot be fulfilled. The narrow aisles or rows of seats in an aircraft also mean that the three-officer techniques are often impossible. The very fact that people are seated on an aircraft is said to add to the problems, and the application of restraint to a person in a seated position is said to increase the risk of medical difficulties. A related concern is that, whilst a medical escort will be provided where assessed to be required on medical grounds or where there is a high risk that control and restraint will be used, a medical escort is not an automatic rule. Mr Southey also made some reference to problems about handcuffing on an aircraft but made clear that this is a minor aspect of the appellant’s case.

It is said that in the absence of approved techniques for the use of force specifically on aircraft, and of training in such techniques, staff have to apply ad hoc and unapproved techniques, which significantly increases the risk of injury or even fatality.

The general tenor of these concerns is illustrated and supported by the expert report of Dr RT Shepherd, a consultant forensic pathologist instructed on behalf of the original claimant. At section 7 of his report Dr Shepherd states:

Dr Shepherd states in his conclusions:

The history is set out at paragraphs 10-51 of Foskett J’s judgment. I set out below what appear to me to be matters of particular importance.

The first important document is a “Project Status Report” dated 3 July 2008 prepared by NOMS (specifically, by the NTRG) in response to a request by UKBA to review the operational use of restraint prior to and during the removal of detainees from the United Kingdom and specifically to look at the effectiveness of control and restraint techniques in the “unique circumstances regarding restraint on aeroplanes”. The report contained a number of recommendations, including that a facility be sought to provide training in a realistic scenario, more specifically involving an aircraft with centre aisle and passenger seats on both sides (recommendation 1); that “all seated restraints remove the use of head support from the front” (recommendation 9); and that techniques be developed that would be applicable when fewer than three staff were present, to include restraint techniques in a seated position (recommendation 10).

The evidence relating to that July 2008 report is considered at paragraphs 20-29 of the judgment below. It is not clear what happened to the report but it does not appear that any action was taken on it at the time. Whilst that gives cause for concern, the issues came subsequently to be examined and pursued in greater detail, as described below.

The next relevant event was the publication of Baroness O’Loan’s report on 12 March 2010 (see paragraphs 17-19 and 30 of the judgment below). The report considered complaints about abuse of detainees. It made various recommendations concerning the use of force but did not contain any specific recommendations about the use of control and restraint on aircraft.

On 12 October 2010 there occurred the death of Mr Jimmy Mubenga due to asphyxia while he was being restrained by detention custody officers on an aircraft prior to its departure to Angola. The judge refers at paragraph 31 of his judgment to the expert reports considered by the CPS in reaching an initial decision not to bring charges against any of the officers concerned (we were told that manslaughter charges have since been brought). The experts suggested that there were shortcomings in the training given to the security guards. They said that the training on how positional asphyxia might occur and the warning signs for identifying positional asphyxia were both flawed. In addition, they criticised the lack of specific training for use of restraint on board an aeroplane. The concerns raised by the experts were drawn to the attention of UKBA, NOMS and the contractor concerned (G4S).

As the judge says at paragraph 32 of his judgment, the tragedy immediately brought the issue of restraint on aircraft squarely into the public arena. The immediate response of UKBA to the death of Mr Mubenga was to suspend the use of restraint when enforcing the departure of detainees, pending a review by NOMS. Having been advised by NOMS that the techniques used by escorts were not fundamentally dangerous, UKBA lifted the suspension on 25 October 2010. It appears that the initial advice was given orally but was to be followed up by a written report. A letter dated 26 October 2010 from UKBA to NOMS refers to three areas of work with which, as agreed at an earlier meeting, UKBA was asking NOMS to assist:

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

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

The judge refers at paragraph 38 of his judgment to key changes made to UKBA’s practice to reflect the advice given in the report: in particular, supplementary briefing on the dangers of positional asphyxia, and the automatic assignment of medical support where there was a high risk of control and restraint being necessary. Reference is also made to improvement to the risk assessment process in the light of concerns subsequently expressed by the Home Affairs Select Committee.

The “Recommendations” section of the NOMS report of 1 November 2010 included recommendations that the entire process of the management of foreign nationals be examined as part of a full review, from the arrest of the person to exchange of custody with the authorities at the final destination, to include training for arrest teams, custodial staff and those responsible for escort and repatriation (Recommendation 1); that all overseas staff receive a generically designed aide memoire regarding medical advice and the law in relation to restraint and relevant policies (Recommendation 3); and that a system be developed for the restraint of violent detainees when boarding an aeroplane, which would be generic to overseas staff and would be in addition to the existing physical skills taught as part of control and restraint and of physical control in care (Recommendation 6). The reasoning underlying Recommendation 6 was this:

In line with the recommendations in that report, UKBA requested NOMS to assess the feasibility of reviewing all the restraint techniques and mechanical restraints used by it. A scoping report produced by NOMS in December 2010 in response to UKBA’s request outlined the methodology, options, costings and timescales. It envisaged a service level agreement to provide a four phased approach to the work, namely a research phase, curriculum development, an implementation and evaluation phase, and a legacy phase. It said that to reach the legacy phase might take between two to three years.

As the judge says at paragraph 43 of his judgment, the approach outlined in the scoping report must have been accepted, because on 31 January 2012 the NTRG produced a research phase report (though the version we have seen is dated 26 October 2012). Under the heading “Current training provision”, the report stated that “although it has been confirmed that the techniques used by overseas escorts on aircraft and which are accredited by NOMS are not fundamentally dangerous the recommendations focus on the variation in the environments where force may be used by UKBA”. In the section on findings and recommendations, under the sub-heading “UKBA specific training package”, the report referred to the fact that current training was designed to be used in a custodial environment and that training was lacking for some environments, including aircraft. It also referred to the impact of the configuration of the aircraft and to the fact that “[t]he current NOMS C&R training works on a ratio of no less than 3 staff to 1 prisoner and as such a system for 2:1 ratio, particularly for flights will require development”. It recommended:

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

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

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

Three broad issues are raised by the appellant:

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

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

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

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

The leading case concerning the framework duty is the decision of the Grand Chamber of the European Court of Human Rights (“the ECtHR”) in Makaratzis v Greece (2005) 41 EHRR 49. The facts of that case were graphic. The applicant, having driven through red traffic lights and then failed to stop for the police, was pursued by police officers in cars and on motorcycles. After he had broken through five roadblocks the police officers started firing at his car. They continued firing when he stopped at a petrol station. Following his arrest he was found to have sustained several injuries, including bullet wounds. Relying inter alia on Articles 2 and 3, he complained that the police had used excessive fire-power against him, putting his life at risk. The Court considered the matter under Article 2, stating that no separate issue arose under Article 3. Specifically, at paragraphs 56-72, it considered the alleged failure of the authorities in respect of their positive obligation to protect the applicant’s right to life by law.

At paragraph 56 the Court referred to the fundamental importance of Article 2 and to the need to interpret and apply it so as to make its safeguards practical and effective. It then set out the well-established positive obligation on the state to secure the right to life by putting in place an appropriate legal and administrative framework to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It stated next that the use of force by police officers may be justified in certain circumstances but that unregulated and arbitrary action by state officials is incompatible with effective respect for human rights. The judgment continued:

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

The words I have emphasised in paragraph 60 of the Court’s judgment form the basis of Mr Southey’s contention on behalf of the appellant that the framework duty of the Secretary of State extends to putting in place techniques for control and restraint on aircraft that “minimise to the greatest extent possible” any risk to life and, by parity of reasoning, any risk of ill-treatment contrary to Article 3. It is submitted that paragraph 60 represents the logical conclusion of the preceding paragraphs and sets out the primary test to be applied when assessing the compatibility of the framework with those articles.

It seems to me, however, that in paragraph 60 of the judgment the Court is not dealing with the content of the framework duty but is turning to consider, against the background of the framework duty, the way in which the particular operation under consideration was regulated and organised. It is not saying that the framework itself must “minimise to the greatest extent possible” any risk arising in respect of the situations in which force may foreseeably be used. The “background” to which it refers is the requirement that policing operations must be sufficiently regulated “within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force, and even against avoidable accident” (the words I have emphasised in paragraph 58 of the judgment), and that “a legal and administrative framework should define the limited circumstances in which law enforcement officials may use force and firearms” (the words I have emphasised in paragraph 59). That is the point picked up in paragraph 71, where the Court refers to the failure of the Greek authorities to do “all that can reasonably be expected” of them to afford the level of safeguards required. In my judgment those passages, rather than paragraph 60, are the best indicators of the test to be applied when considering the general question whether the framework is sufficient to comply with Articles 2 and 3, as distinct from the question whether a particular operation has been planned and organised in a way that complies with those articles. The emphasis in respect of the framework is on reasonable safeguards, not on regulation of such detail as to minimise to the greatest extent possible any risk to life or risk of ill-treatment.

The language of “minimise [risk] to the greatest extent possible” is to be found in other cases, in the context of Article 3 as well as Article 2. In each case, however, it is used in relation to the conduct of a particular operation, not in relation to the legislative and administrative framework. Thus, in Kurnaz & Others v Turkey (application no. 36672/92, judgment of the Fourth Section dated 24 July 2007, paragraph 56) the Court found that the use of force in dealing with a prison riot was excessive, stating inter alia that “the Government have not provided any information showing that the operation launched by the gendarmerie was properly regulated and organised in such a way as to minimise to the greatest extent possible any risk of serious bodily harm to the detainees”. In Kemal Bas v Turkey (application no. 38291/07, judgment of the Second Section dated 19 February 2013, paragraph 30) the Court used almost identical language in finding a breach of Article 3 in relation to the use of force by police in dispersing a demonstration.

Putintseva v Russia (application no. 33498/04, judgment of the First Section dated 10 May 2012) concerned the death of a serving soldier who had been shot when trying to escape while being escorted from a military hospital to the garrison’s detention unit to serve a period of detention following a charge of absence without leave. In relation to general principles the Court stated that in determining whether the force used is compatible with Article 2 it may be relevant “whether an operation has been planned and controlled so as to minimise to the greatest extent possible recourse to lethal force or incidental loss of life” (paragraph 45). The judgment went on, however, to look separately at the framework duty:

In considering the application of those principles, the Court dealt with the “Assessment of the relevant legal framework” (paragraphs 64-67) separately from the “Assessment of the actual use of force and the authorities’ conduct preceding the incident” (paragraphs 68-71). In relation to the framework, it found the relevant legal provision to be fundamentally deficient: “Apart from requiring a general warning that a firearm would be used, Article 201 did not contain any other safeguards to prevent the arbitrary deprivation of life. It did not make use of firearms dependent on an assessment of the surrounding circumstances and, most importantly, did not require an evaluation of the nature of the offence committed by the fugitive and of the threat he posed” (paragraph 64). In relation to the particular circumstances of the case, it found that the use of potentially lethal force was not “absolutely necessary” and was prohibited by Article 2. It concluded that the Russian State had failed to comply with its obligations under Article 2 “in that the relevant legal framework on the use of force was fundamentally deficient and that the applicant’s son was killed in circumstances in which the use of firearms to prevent his escape was incompatible with Article 2” (paragraph 72).

It seems to me that the way in which the Court in Putintseva v Russia dealt with the legal and administrative framework, including its citation of paragraphs 57-59, not paragraph 60, of the judgment in Makaratzis, supports my analysis of that judgment.

The only case cited to us which bears directly on the issue of regulation or guidance in respect of specific techniques of control and restraint is Affaire Saoud v France (application no. 9375/02, judgment of the Second Section dated 9 October 2007, full judgment available only in French, with an unofficial summary in English). In that case the deceased had suffered a cardiac arrest after police had immobilised him in a particular position on the ground during a violent incident. The Court found a breach of the positive obligation under Article 2 to protect the life of the deceased. The reasoning included the following:

Having considered at some length the Strasbourg case-law concerning the framework duty, I turn to consider its application to the facts of the present case.

Foskett J expressed his main conclusion on that issue at paragraph 102 of his judgment:

At paragraphs 109-111 he said that the evidence demonstrated that, during the period since Mr Mubenga’s death, (i) there had been a renewed emphasis on the need to avoid any restraint technique that could lead to positional asphyxia, particularly in the seated position, (ii) when the prior risk assessment carried out in the case of each person subject to a removal operation showed a high risk of control and restraint being required, someone with medical training would be assigned to the removal, (iii) although not officially approved or accredited, the contractor G4S did adapt a number of the techniques used in such situations which were reviewed by NOMS and no concerns were raised, and (iv) there was a degree of independent scrutiny of the process of removals. All that was against the background of a legislative and regulatory framework that placed considerable emphasis on the need, if possible, to avoid situations where force was necessary, but where it was necessary to use only reasonable and proportionate force. That catalogue of considerations led him to conclude that, as things stood, the framework within which force was used within an aircraft when a removal was being effected was Convention-compliant.

In my judgment Foskett J was correct, for the reasons I have given, not to proceed on the basis that the framework had to minimise risk to the greatest extent possible. He did not articulate precisely the legal test that he was applying, but his approach was consistent with that which I have derived from Makaratzis and I am not persuaded that he misdirected himself on this issue.

I also agree with his conclusion, but for reasons that I would express somewhat differently.

When considering the sufficiency of the legal and administrative framework, I think it important to start from the regulation and guidance already in place, the nature and degree of which make this a very different case from those that met with such criticism in Makaratzis and Putintseva.

First, the law empowering the use of force makes clear that such force may be used only when necessary and to the extent necessary. Compliance with the law is subject to effective control by the courts, through its ordinary civil and criminal processes and also, in cases of death, through the inquest system. The legal limitations on the use of force and the personal accountability of officers for its use are underlined by the relevant rules and operating standards and by the general guidelines in Section B of the Manual.

The Manual itself is of central importance not just for those general guidelines but for the guidance in Section C about medical considerations, including positional asphyxia; for the advice in Section D about avoiding and defusing violent situations; and of course for the detailed control and restraint techniques described in Section E. It recognises that those techniques relate particularly to a three-officer situation and that the description reflects their use in an ideal controlled environment, but reference is made to the need to adapt the techniques in their daily operation, and the various techniques described are of potential value across the range of incidents where force is required.

Detainee custody officers receive practical training by accredited instructors, covering the relevant contents of the Manual. Compliance is reinforced by the requirement to report all instances of restraint and by a system for the monitoring of removals and the investigation of complaints. Each detainee being removed is the subject of a risk assessment, including consideration of any medical or mental health issues, which is recorded in the Person Escort Record so that relevant staff are provided with all necessary information about the detainee. A medical escort is provided where health care clinicians consider that one is required or where there is a high risk that control and restraint will be used.

The system accords with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the United Nations in 1990.

Whilst a need has been identified for a bespoke package of techniques and training tailored to the specific environment of an aircraft, it must not be forgotten that following the death of Mr Mubenga the techniques currently used by escorts were assessed by NOMS not to be fundamentally dangerous and that the November 2010 report produced by NOMS was understood by UKBA, in my view reasonably, to provide a green light to continuing with removals. Mr Mubenga’s death was, moreover, an isolated incident and there is little evidence of systemic problems in the control and restraint techniques actually applied in the course of removals. For example, the evidence before the court includes a witness statement of Mr Mark Hartley-King, an official with responsibility for UKBA’s Professional Standards Unit which examines all serious misconduct complaints and serious incidents. The details he gives reveal no such systemic problems.

In those circumstances I see considerable attraction to the judge’s view that the development of a bespoke package for the aircraft environment should be regarded simply an improvement to a framework that is Convention-compliant in any event.

For all the merits of the existing framework, however, I do not think that it would have been acceptable to do nothing further once the need for a bespoke package had been identified. Inaction in the face of an identified need is not a position I would expect the ECtHR to approve, even at the level of the framework duty, and is not one that the national court should approve. It is therefore necessary to go on to consider the steps that have been taken in response to the identified need.

Recommendations relating to the development of training and techniques for the specific environment of an aircraft were first made in the NTRG report of July 2008. The failure to take any action on that report remains unexplained. When similar recommendations were made in the November 2010 report, they were taken up and the matter was progressed consistently thereafter. The phased approach envisaged in the December 2010 scoping report was pursued. It led to the research phase report of January 2012; and although that report contained substantially the same recommendation as had been made in July 2008, it led in turn to the development of a bespoke package and the setting up of an independent advisory panel. I see no reason to reject Mr Eadie QC’s submission that the whole exercise has been one of some complication, involving as it did the development of a package of materials and training, its review and approval by the independent panel, and the implementation of a training programme following approval. The December 2010 scoping report envisaged that it might take two to three years to reach the legacy phase, whereas in the event it will have taken three to four years. The timeline since the end of 2010 has been a long one but I do not accept that it has been unreasonably long.

In my view, therefore, at the date when the judicial review claim was brought, in February 2011, the Secretary of State was doing all that could reasonably be expected of him to afford an appropriate level of safeguards. That remained the position as at the date of Foskett J’s judgment and, if it is of any relevance, at the time of the appeal.

In those circumstances I do not think that there is any basis for finding a breach of Article 2 or Article 3 in relation to the legislative and administrative framework governing the use of force on persons being removed by aircraft from the United Kingdom. The delay between 2008 and 2010 in reacting to the identified need for a bespoke package is not a sufficient reason for finding such a breach. The matter was being taken forward appropriately by the time the present proceedings were brought. At no time during the course of the proceedings could the Secretary of State reasonably have been required to do more than was already being done.

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

Foskett J rejected that line of argument, essentially for reasons set out in paragraph 105 of his judgment:

I agree with the judge’s rejection of the argument for the reasons he gave. Those reasons echo some of the points made in rejecting the primary case put forward as to non-compliance of the framework with Articles 2 and 3. Indeed, I do not see how the alternative argument could sensibly succeed once the direct challenge to the compatibility of the framework with Articles 2 and 3 is rejected.

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

The final issue concerns the Secretary of State’s decision to publish the Manual only in redacted form. The issue is dealt with at paragraphs 111-141 of Foskett J’s judgment.

In those paragraphs the judge describes first the nature of the case advanced by Mr Southey, that there should be sufficient disclosure of the Manual to enable the claimant (i) to protest about the use of force, for example on the grounds that the policy states it is prohibited, unauthorised or dangerous, (ii) to bring proceedings that force used was a violation of Article 3 because the policy shows it was dangerous and/or prohibited, and (iii) to bring proceedings to show that the framework is unlawful.

The judge describes next the case for the Secretary of State that the redactions have been made for operational reasons of sensitivity and security, the judgment having been made that it would be damaging and contrary to the public interest for the redacted parts to be published. Reference was made to earlier proceedings before the Information Commissioner in which disclosure of the full Manual was sought by a journalist but the Commissioner concluded that the public interest in maintenance of the exemption from disclosure outweighed the public interest in disclosure. The Secretary of State relied on the same justification to resist disclosure in the present case, contending that disclosure would have a seriously prejudicial effect on security and good order, and on the physical health and safety of prison staff and other prisoners, because (i) the Manual is used in training across the NOMS estate and in immigration detention facilities and the effect of releasing the redacted material would be that this would be available for all serving adult prisoners; (ii) prisons hold a diverse range of individuals, including those who are violent, dangerous and manipulative, as well as those who are vulnerable, and if the redacted parts were to be released all adult prisoners and detainees would be able to study the techniques and prepare to counteract them; (iii) this would increase the risk of insecurity within the detention estate through an inability to control violent and disruptive elements; (iv) the Prison Service and the Secretary of State each has a duty of care to those individuals who are detained as well as to staff who work with them and people who visit them; the increased risk of insecurity would make it more difficult to comply with that duty; detention would be less safe and more intimidating.

The judge said at paragraph 127 that whilst he was not bound by the Commissioner’s decision and the test he had to apply was different, the essential judgment to which he had to come was the same. He considered it plain that the Secretary of State’s decision to withhold publication of the redacted parts was lawful. There were obvious risks to the public involved in putting out into the open descriptions of the techniques that had been withheld. A balance had to be struck and he was unable to say that the decision to withhold the information represented the result of an erroneous decision-making process.

At paragraphs 128-141 the judge went on to consider, for the sake of completeness, the issue of public interest immunity (“PII”) which, for reasons he explained, had not been dealt with in the draft judgment originally sent to the parties. He was satisfied that PII had been established even in the absence of a formal PII certificate.

In my view, the Secretary of State has put forward cogent reasons for the decision not to publish the redacted parts of the Manual, and the judge was right to find that the decision was lawful. An appropriate balance is struck between description of the relevant techniques (with a proper indication of what has been redacted) and the maintenance of security. I am not persuaded that disclosure of the redacted parts is necessary for the purpose of enabling the appellant to mount her challenge under Articles 2 and 3 to the framework for the use of force in the aircraft environment, as is apparent from the detailed consideration it has been possible to give to that challenge on the basis of the Manual in its redacted form. We are concerned in this case with the framework, not with a specific instance of the use of force, where particular issues of disclosure of relevant parts of the Manual might arise. As to Mr Southey’s fall-back position that disclosure of the redacted parts of the Manual might reveal techniques that were inherently dangerous or gave rise to an unacceptable risk, the case amounts in that respect to a fishing expedition in which the appellant does not even have a relevant interest.

Mr Southey relied on the statement in the ECtHR’s judgment in Őneryildiz v Turkey (2004) 41 EHRR 325, in the context of the framework duty and the need to take practical measures to ensure the effective protection of citizens whose lives might be put at risk by dangerous activities, that “particular emphasis should be placed on the public’s right to information” (paragraph 90). Plainly, however, that general proposition does not mean that material must be published even where its publication will endanger security.

Mr Southey criticised the fact that the judge upheld PII in non-disclosure of the redacted parts without himself reviewing the redacted material. The issue certainly took an unusual course, without even a formal PII certificate, but it seems to me that it was open to the judge to adopt the approach he did and that his conclusion was properly open on the material before him. What was said in Somerville v Scottish Ministers [2007] UKHL 44, [2007] 1 WLR 2734 about the need for the court to inspect documents in respect of which PII is claimed was based on the circumstances of that case and was not expressed to apply as an invariable rule.

Mr Southey suggested that disclosure of the redacted material could have been made to the claimant’s legal team and expert witness, subject to appropriate undertakings as to confidentiality, because the arguments were not such as to require instructions from the lay client. But since in my view the just disposal of the case did not require any form of disclosure of the redacted material, the judge was correct to dismiss the idea of a confidentiality ring. He was also right to observe that a confidentiality ring would have given rise to significant practical difficulties (as considered, albeit in a more sensitive context, in AHK v Secretary of State for the Home Department [2013] EWHC 1426 (Admin) at paragraphs 21-28); and in the absence of a compelling need for disclosure, such issues were plainly best avoided.

Accordingly, I see no basis for departing from the judge’s analysis and conclusion on this issue.

For the reasons given I would dismiss the appeal.

I agree.

I also agree.