Z, R (on the application of) v Secretary of State for the Home Department

This case concerns the use of force to facilitate the removal from the UK of those who have no legal right to be here and who display a reluctance to cooperate with the process of removal.

The claim is brought in the name of the Claimant who is the subject of an anonymity order agreed between the parties and made by the Deputy Master of the Crown Office in August last year. It mirrors an anonymity order made by Collins J in other proceedings brought by the Claimant: see R (FGP) v. Serco Plc and Secretary of State for the Home Department [2012] EWHC 1804 (Admin). I indicated at the outset of the hearing that I would, if invited to do so, entertain an application made by representatives of the media to consider whether the anonymity order should continue. No such application has been made.

The issue raised is said to affect others and, accordingly, the Defendant has not sought to raise any issue of standing in relation to the Claimant, the essential argument otherwise being that the claim is academic. It is thus a case in which the current practice concerning the use of force in the context I have mentioned falls to be considered within the public law framework of judicial review. The case does not in reality raise the individual circumstances of the Claimant’s case. Indeed it does not raise specifically the circumstances of any individual case, whether past, present or future.

The challenge is essentially to the adequacy of the framework for control and restraint (‘C and R’) of those subject to removal from the UK when on board an aircraft. The primary argument advanced on the Claimant’s behalf is that the current framework reflected within “The Use of Force Training Manual” (see paragraphs 54-74 below) breaches Article 3 of the European Convention on Human Rights (‘ECHR’) and also possibly Article 2. It is also contended that the decision of the Defendant only to publish parts of the Manual by virtue of the redaction of various parts is unlawful.

The Defendant rejects these contentions and argues, first, that the current framework (whilst it needs to be developed and improved and will shortly do so) is compliant with the ECHR and, second, that there are legitimate policy reasons for not making public certain parts of the Manual.

As will be well-known, there are many enforced returns to their countries of origin of non-UK nationals who have been adjudged as not entitled to remain in the UK. Whilst the numbers vary, there are about 15-17,000 enforced removals each year. In the years 2008, 2009, 2010 and 2011, the average number of annual escorted overseas removals was approximately 4750. Of those removals an average of 11.9% involved the use of force. This means that in approximately 565 individual cases each year force was applied to assist the removal.

Proportionately, of course, the use of force in these cases is relatively small, but numerically the numbers are quite large. The use of force affects the individuals being removed from the UK and also those who need, or feel the need, to use force to secure cooperation in the process. It also affects others who happen to be on the same flight, whether crew, cabin staff or other passengers and whether the flight is a special charter flight, an ordinary scheduled civil flight or a flight on a military or private aircraft. It is, therefore, an important issue from several viewpoints.

Over the three years from 2009-2011 complaints have been made by those to whom force has been applied in on average about 30 cases (or 5%) per year of which a very small number are found, by the procedures available, to have been substantiated. Mr Hugh Southey QC, for the Claimant, has questioned the validity of the recorded complaint rate and the means by which the complaints are evaluated, a question backed up by a witness statement of Ms Theresa Schleicher, the Casework Manager at Medical Justice. Mr James Eadie QC, for the Defendant, acknowledges that the rate of complaint may be diminished by reason of the fact that most who would claim to have been a victim of excessive ‘C and R’ might have left the UK before the opportunity to complain could be taken, but says that generally the evidence suggests that the rate of complaint is low. I will return to this later (see paragraphs 105-106).

The Manual about which complaint is made in these proceedings was promulgated in July 2006. I will say more about it below (see paragraphs 54-74).

The history of concerns expressed about, and the consideration given to, issues surrounding the use of ‘C and R’ on those being removed from the UK in an aircraft can start for present purposes in 2007/2008. The witness statement of Ms Karen Abdel-Hady, since August 2011 a Deputy Director (Head of Operations) in the Returns Directorate of UKBA, records that at various stages in 2007/2008 the UKBA faced Press criticism in some quarters for alleged systematic abuse of detainees, including those being removed from the UK.

Those criticisms in the Press became translated into a report entitled ‘Outsourcing Abuse’ published in July 2008 by Birnberg Peirce & Partners, Medical Justice and the National Coalition of Anti-Deportation Campaigns. The Foreword was written by Lord David Ramsbotham, GCB, CBE, HM Chief Inspector of Prisons from December 1995 to August 2001.

In a paragraph entitled ‘Background’ the Report recorded this:

“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.”

The Report contained 48 detailed case studies.

As I have already indicated, the focus of the present judicial review claim has been upon the way ‘C and R’ is applied when the person being removed from the UK is inside an aircraft cabin. Mr Eadie was, in my view, correct to say that the logic of the position taken on behalf of the Claimant should result in a challenge to the framework so far as it affects any ‘C and R’ applied outside the prison or immigration detention estate, including, for example, in the context of transporting an individual from that estate to an aircraft in what, as I understand it, is never a cellular vehicle. Since that has not been the way the case has been presented, I have not focused on any criticisms that might be made in that context although I recognise that some similar criticisms might be levelled if the way individuals are handled in that situation is not satisfactory. I have not been invited either to consider the specific position concerning the way pregnant women and children are treated which I understand may be the subject of another claim currently awaiting the question of permission to be considered.

The alleged instances of abuse in ‘Outsourcing Abuse’ embraced the period between (according to the terms of the report) January 2004 and June 2008 and the report broke down the allegations as follows:

“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.”

It follows that of that cohort of cases, 27% arose from incidents on board an aircraft.

Following publication of the Report, in September 2008 the then Home Secretary invited Baroness Nuala O’Loan to consider the allegations made in the report. Her report was published 18 months later on 12 March 2010.

Her general conclusion from the review of those cases which were capable of review was that “there is, and was, no pattern of systemic abuse by persons employed within the United Kingdom Border Agency detention estate, or as escorting officers”. However, she identified some areas for concern and where consideration to changes in existing practice were required. Although a number of the individual cases she reviewed had arisen from incidents on board an aircraft (usually where the detainee was resisting attempts to be deported), no specific recommendations were made about the use of ‘C and R’ on aircraft. The specific recommendations concerning the use of force were as follows:

“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.”

The “Guidance” mentioned appears to be the Manual with which this case is concerned. However, whilst issues arose about the use of force inside an aircraft (e.g., the use of handcuffs), no issues about the essential techniques of ‘C and R’ in that context were identified. I have noted from the Foreword to Baroness O’Loan’s report that the then Chief Executive of the UKBA, Lin Homer, welcomed the recommendations on how the management of removals and the complaints investigation processes could be improved. Some disclosure made shortly before the hearing shows that it appears to be the case that a commitment was made at the time to implement all the recommendations within 12 months. I will return to this below (see paragraph 30). As will appear, almost exactly 7 months after Baroness O’Loan’s report Mr Jimmy Mubenga died whilst being restrained within an aircraft and that tragedy gave rise to further consideration to the way ‘C and R’ was to be handled in that situation. I will return to that further consideration later (see paragraph 31 et seq below).

I use the expression “further consideration” because it does appear that, albeit not in the report commissioned from Baroness O’Loan, consideration was given internally within UKBA in the period shortly before the publication of the ‘Outsourcing Abuse’ report to the use of restraint in aircraft through ‘C and R’. The report was commissioned by UKBA from the National Tactical Response Group (‘NTRG’) of Her Majesty’s Prison Service (‘HMPS’) “to review the operational use of restraint prior to, and during the removal of detainees from the UK to their destination country”. The Introduction to the report indicates that “[specifically] NTRG are to look at the effectiveness of Control and Restraint techniques and Physical Control in Care techniques in the unique circumstances regarding restraint on aeroplanes”. The report was called a Project Status Report and entitled ‘UKBA Restraint on Aeroplanes’. (There is a short section at the end of the report dealing with the use of force on young people in this situation.) It was dated 3 July 2008.

The report was prepared by Prison Officer Jon Collier and Senior Officer Dave Stephenson who were National Instructors based at NTRG Kidlington and who, it is said in the report, “have many years of both operational and training experience within Prison establishments and other criminal justice agencies both in the UK and abroad”. The report was based on observations carried out by Mr Collier and Mr Stephenson of a charter flight from London Stansted Airport to Kosovo/Albania carrying 30 detainees on the 26 June 2008. It is not wholly clear what prompted the request for the report. All that Ms Abdel-Hady can say is that she has been “informed that the NTRG was consulted by UKBA/G4S regarding the unique and potentially difficult scenario of restraining a person on an aircraft in June 2008.” This was a period generally when restraint techniques, particularly those concerning young people, were under scrutiny: the House of Commons Joint Committee on Human Rights published its report entitled “The Use of Restraint in Secure Training Centres” on 7 March 2008 (see Children’s Rights Alliance v Secretary of State for Justice [2012] EWHC 8 (Admin) at [29]).

I will say a little more about what the Collier/Stephenson report recommended shortly (see paragraphs 23-26), but somewhat oddly it does not appear to be a report that was known about very widely within the UKBA even though I note that it was referred to expressly in the Amnesty International UK report entitled ‘Out of Control’ published on 7 July 2011 and, in the disclosure that took place shortly before the hearing, it was referred to in an e-mail dated 22 October 2010 (during the period immediately following Mr Mubenga’s death). In these proceedings it was exhibited to the witness statement of Mr Alan Mackay, a former prison officer who became a Detainee Custody Officer (‘DCO’) initially with Securicor and then onwards to Charter Operations Manager with G4S, a position from which he resigned in February 2012. That witness statement was dated 26 March 2012 and served in support of the Claimant’s claim. Mr Collier had put forward a witness statement in November 2011 which did not refer to the report. Ms Abdel-Hady says this about it in her witness statement:

“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.”

Recommendation 9 was that “[no] seated restraint is to use the head support position from the front”. This recommendation appears to have followed from medical advice received from experts in restraint-related deaths in custody that “restraints in a seated position offer an increased risk of restraint related medical difficulties and that the use of the head support position increases the risk”. In the G4S instruction referred to by Ms Abdel-Hady (dated 1 September 2008) and said to be “high” priority, the following appeared after reference to a “Home Office review” of ‘C and R’ procedures:

“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.”

Ms Abdel-Hady says that she has been “informed by NOMS that this recommendation was not included in the Use of Force Training Manual given that that document relates to secure custodial settings and does not contain any reference to restraint on an aircraft”. It should, perhaps, be observed, however, that the Manual does include a fairly detailed description of positional asphyxia, including the following:

“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.”

The other recommendations of significance in that internal report are:

“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.”

Apart from the implementation of recommendation 9, the trail runs cold in relation to the pursuit of the other recommendations. There is no evidence that they were followed up at the time or at any time subsequently. There is evidence that the issue of ‘C and R’ on an aircraft was regarded as an issue of difficulty. Some minutes of a meeting on 5 October 2010 attended by various UKBA and NOMS representatives reveal that the following was recorded:

“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.”

This issue was taken up in a letter from the Director of UKBA to (presumably) a counterpart at NOMS the following day. The letter said that it was written “regarding the prospect of NOMS taking a slightly broader role in relation to the accreditation of restraint techniques and equipment used by UKBA and its contractors in relation to the detention estate and our escorting activity.” The letter ended with this paragraph:

“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.”

It would appear, therefore, that NOMS was reluctant at that stage to engage in the area in which UKBA wished it to engage. The letter had spelt out the issues relating to restraint in aircraft in this way:

“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.”“

One explanation for the lack of immediate follow-up of the Collier/Stephenson might have been that it was anticipated that Baroness O’Loan would refer to the issue when her report was completed, but that explanation has not been suggested and would, in any event, not necessarily be a satisfactory reason for not taking the recommendations forward. The other may be the apparent reluctance of NOMS to become involved in the accreditation process. Whatever the reason, Mr Southey has a point when he says that it appears to have taken a long time to pursue these matters (see paragraphs 50-51 below). In the meantime, ad hoc, but unapproved, adaptations to the established techniques are utilised within aircraft (see paragraph 52 and 107 below).

As I have indicated (paragraph 17), Baroness O’Loan’s report was published in March 2010 and a commitment was apparently made to implement its unimplemented recommendations within 12 months. Some matters had been attended to as the report was being prepared. In the disclosure to which I have referred (see paragraph 22 above) a document dated 6 June 2011 was revealed that indicates the progress made in implementing Baroness O’Loan’s recommendations. The paragraph dealing with restraint records this:

“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.”

It does, therefore, appear that by then at least what was being awaited was what was described as the “NOMS review on restraint”. This, as I understand it, was a review undertaken following Mr Mubenga’s death. He was aged 46 and, as I have recorded previously, died on 12 October 2010 while he was being removed to Angola on a British Airways flight. It appears that the reason for his deportation was his two-year prison sentence for an offence involving some violence. I understand that there is shortly to be an inquest into his death and possibly an inquiry by the Prisons and Probation Ombudsman. Accordingly, I will say nothing more about the circumstances other than to observe that that his death arose when he was being restrained by DCOs employed by G4S on the aircraft prior to its departure to Angola and that, when announcing in July 2012 that no charges were to be preferred against any of those DCOs, the CPS caseworker said this:

“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….”

Not unnaturally, this tragedy immediately brought the issue of restraint on aircraft squarely into the public arena. Ms Abdel-Hady says that “it was the first death on an aircraft of an individual who was being forcibly returned … [and] also the first death of a detainee while in the custody of private sector escorts … since private companies started providing the service in (around) 1994.”

The immediate response to the death by UKBA was to put on hold the use of restraint techniques on scheduled removal flights pending the outcome by NOMS of “a brief and early consultation on the condition, and quality assurance, of use of force training for UKBA escort staff.” The pause lasted 10 days between 15 and 25 October before the use of ‘C and R’ was reinstated.

Mr Collier, by now Developing Prison Service Manager within NOMS, prepared the report in consultation with Mr David Eldridge from G4S. It was dated 1 November 2010, though the decision to resume flights was made previously. What was required prior to the re-establishment of the flights was an assurance that the ‘C and R’ basic techniques used by the escort staff were “safe and were being delivered as outlined in Prison Service Order 1600, Use of Force policy, and the NOMS Use of Force manual” (in other words the manual the subject of these proceedings). (Ms Abdel-Hady says in her witness statement that “NOMS’ use of force policy is set out in Prison Service Order (PSO) 1600 Use of Force … [which] is an unrestricted document available on the Ministry of Justice website”. The manual is, of course, a separate document.)

A number of passages in the report (which was not, I apprehend, made public as such though it was referred to by the Minister of State in the House of Lords on 2 November) should be highlighted. Part of the ‘Background’ was recorded as follows:

“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.)

The final paragraph is presumably referring to the concerns about positional asphyxia referred to above (see paragraph 24). Mr Southey has emphasised the underlined passage to which I will return later (see paragraphs 42-52).

The conclusion on the use of ‘C and R’ was as follows:

“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.”

Pending the further investigation recommended, the report suggested some interim measures including where possible to consider using handcuffs as a more appropriate form of restraint than applying the physical ‘C and R’ techniques. There is evidence that when the temporary suspension of the use of ‘C and R’ was lifted two changes were introduced into the arrangements: first, all staff received detailed supplementary briefing on the dangers of positional asphyxia; second, where there was a high risk of ‘C and R’ being necessary a “medic” was to be automatically assigned to the removal. Ms Abdel-Hady indicates that the attendance of a medically qualified person where it is assessed as necessary continues to be the established pattern: see paragraph 98 below. The risk assessment process has, she says, been improved after concerns were expressed by the Home Affairs Select Committee on 11 January 2011. She says this:

“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.”

The principal recommendations of the report referred to in paragraph 34 were that (a) 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 the escort and repatriation; (b) a full quality assurance programme be introduced to assess the delivery of ‘C and R’ and PCC at all establishments that hold or transfer detainees; (c) all overseas staff should receive a generically designed aide memoire concerning medical advice and the law in relation to restraint and UKBA/G4S policies; (d) a system is developed for the restraint of violent detainees when boarding an aeroplane which will be generic to overseas staff and will be in addition to the existing physical skills taught as part of ‘C and R’ and PCC (Physical Control in Care).

That last recommendation was underpinned by the following observations:

“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.”

I will turn to the response to that report shortly, but interpose to observe that the House of Commons Home Affairs Committee received oral evidence from the then Chief Executive of UKBA on 9 November 2010 (shortly after the death of Mr Mubenga) and said this in the report of its proceedings published on 11 January 2011:

“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.”

UKBA accepted the need for the wide-ranging review referred to in paragraph 39 above. NTRG prepared a “scoping report” indicating the services it could provide to UKBA in this regard. That report was dated 20 December 2010. It spoke of the need to agree a “service level agreement” leading to a four-phased approach to the project. The four phases were the research phase, the curriculum development phase, the implementation and evaluation phase and the legacy phase.

I have not been told precisely when this approach was accepted, but it was undoubtedly accepted because on 31 January 2012 NTRG produced the Research Phase report. In relation to the use of ‘C and R’ on an aircraft the following was recorded:

“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.”

Against that background, the recommendation was as follows:

“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.”

It does have to be observed that this appears to be substantially the same recommendation as was made in July 2008 and reflected in other recommendations subsequently.

Nonetheless, the recommendation was accepted by UKBA and NOMS was asked to take it forward. I have been told that this part of the project (which I assume to be the “curriculum development phase” of the four-phased approach referred to in paragraph 42 above) commenced in May last year and NOMS is due to report in March this year. Their remit includes producing a new manual and training material (e.g., training materials for trainers) specifically directed to the use of force on aircraft and within vehicles. It was a requirement of NOMS that UKBA should establish an independent “advisory panel” the purpose of which would be to assess independently the quality of safety of systems of restraint and equipment proposed for use on escort vehicles, at airports and on to, on-board and off the aircraft. The advisory panel, in its conception, was to act as “a critical friend of the NOMS team” and to review the techniques as they were developed and to submit a final report with recommendations to ministers. I have been told that the “Independent Advisory Panel on Non-compliance Management” was appointed in January this year with a view to taking up appointment in March. It comprises a panel of experts, two of whom are medically qualified, one of whom being Professor Shepherd who has provided a report in support of the arguments advanced on behalf of the Claimant in these proceedings.

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

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

Ms Abdel-Hady concludes the part of her witness statement that relates to this process as follows:

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

Whilst the comment I am about to make does not go directly to the issue of whether current use of force procedures for restraint on an aircraft (or in a vehicle) are Convention-compliant, it is hardly satisfactory that it will have taken six or seven years (or possibly longer) for new restraint techniques to be developed for use in an aircraft since the need for such techniques was first identified. The perspective advanced on the Claimant’s behalf is that of the detainee. However, without proper guidance, the escorts may be vulnerable to unwarranted allegations of mistreatment.

There may well be explanations for the delay to which I am not privy and I say no more than I have; but, looked at objectively, it is unfortunate that such an issue has taken so long to resolve and it is still not yet resolved.

Mr Southey’s argument is that whilst this guidance is awaited “adapted, unapproved techniques” are being used by DCOs in the confines of an aircraft which are potentially unsafe and constitute a risk to health - and indeed the life - of the detainee who is being removed from the UK. He suggests that there are problems with the training.

I will return to these matters when I have reviewed the contents of the Manual.

As I have indicated, the Manual was effective from July 2006. It is important to understand the use to which it is put. It is a training manual used in training across the NOMS estate (including all adult prisons and young offender institutions) as well as for the purposes of immigration and escort arrangements. It is issued to accredited instructors and Governors/Directors only. In other words, it is essentially used by instructors in their training of those who may need recourse to the use of force in the settings to which I have referred.

The Foreword to the Manual says this:

“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.”

The separate manual entitled ‘Detention Services Operating Standards manual for the Detention Services Escort Process’ is said to have been issued with the aim “to improve performance and compliance across the escort process” and contains the following specific ‘Minimum Auditable Requirements’ under the heading of ‘Use of Force’:

“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.”

Returning to the Use of Force Manual itself, it runs to 100 pages. A redacted version appears on the Home Office website at the following link -

http://www.justice.gov.uk/downloads/information-access-rights/foi-disclosure-log/prison-probation/use-of-force-training-manual.pdf

The manual contains a number of sections including sections entitled “training guidelines for C&R instructors”, “guidelines on use of force”, “medical considerations”, “personal safety” (which includes communication, reaction distances, vulnerable body areas, defensive techniques and disarming techniques). There is then a lengthy section entitled “control and restraint basic techniques” which is sub-divided into “planned removal” (setting out the respective responsibilities of each of the three officers normally involved in these matters), “control techniques”, “armed prisoner removal”, “unplanned C&R”, “moving a prisoner”, “relocation” and “cellular vehicles”. There is a final section on “use of force report writing”.

Under the guidelines given concerning the use of force, the following appears at the outset:

“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.)

Reference is made to Article 3 of the ECHR and the following is asserted:

“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.”

That theme is followed up in the following paragraphs:

“ 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.”

Under the heading ‘HANDLING CONFRONTATIONAL SITUATIONS’ the following appears:

“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)”

Reverting to the theme of the use, where possible, of persuasion, the following appears:

“When in a conflict situation we should have one of three objectives, these are:

•

Avoid danger

•

Defuse the situation

•

Control the situation”

In relation to the last two of these objectives, the following is said:

“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.”

Within the section entitled ‘Medical Considerations’, there is a sub-section headed ‘Medical Warning Signs’ which contains the following paragraphs:

“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.)

After referring to some well-known signs suggesting a medical emergency the sub-section continues as follows:

“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.”

Immediately after that section is a section headed ‘Positional Asphyxia’ from which the quotation set out in paragraph 24 above is taken.

There follows a section on ‘Personal safety’ which includes a sub-section on ‘Defusion strategy’. Under the sub-section that appears later in this section concerning ‘Defensive techniques’, the following appears:

“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.”

The section continues with a description of specific defensive techniques. It is at this point in the manual that redaction begins to appear with regularity. I will cite two examples in this particular context:

“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

INTRODUCTION

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.”

In the section entitled ‘Control and Restraint Basic Techniques’ the following paragraphs appear in the Introduction:

“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.)

There appears thereafter a considerable amount of description of techniques to use in various situations and a detailed description of how the 3-officer role is played in what is called a “planned removal”. There is considerable redaction in this part. I will simply give one illustrative example:

“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.”

The fact that a 3-officer team may not always be available to deal with an unplanned situation is recognised in this paragraph:

“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.”

The final matter to which I should draw attention is what is said about the role of medical staff:

“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.”

I will return to deal with the provisions of manual when I have identified the essential legal challenge that is mounted in relation to them.

Mr Southey submits, by reference in particular to the case of Makaratzis v Greece (2005) 41 EHRR 49, that the current framework breaches Article 3 and potentially Article 2. His essential argument is that if the techniques of ‘C and R’ utilised on an aircraft are not regulated and as a result constitute a risk to life, then Articles 2 and 3 are breached. He says that matters concerning the use of force in this situation have not thus been “regulated and organised in such a way as to minimise to the greatest extent possible any risk to … life”, the test which, he contends, should be applied. He submits that that is the test prescribed in Makaratzis (supported by Putintseva v Russia (application number 33498/04, 10 May 2012): see paragraph 85 et seq below).

It is important to see what Makaratzis was about and the factual context in which the decision of the Grand Chamber of the European Court of Human Rights was given.

Taking the facts from the headnote of the report, the case involved a significant police chase of the applicant in the evening of 13 September 1995. The police had tried to stop the applicant, who had driven through a red traffic light in the centre of Athens, near the US Embassy. Instead of stopping, the applicant sped off and was pursued by several police officers in cars and on motorcycles. During the pursuit, the applicant’s car collided with several other vehicles. Two drivers were injured. After the applicant had broken through five police roadblocks, the police officers started firing at his car. The applicant alleged that the police were firing at the car’s cab, whereas the Government maintained that they were aiming at the tyres. Eventually the applicant stopped at a petrol station, but did not get out. The police officers continued firing. The applicant alleged that the policemen knelt down and fired at him, whereas the Government maintained that they were firing in the air, in particular because there were petrol pumps in danger of exploding. One of the police officers threw a pot at the windscreen. Finally, the applicant was arrested by a police officer who managed to break into the car. The applicant claimed that he was shot on the sole of his foot while being dragged out of his car. The Government contested that claim. The applicant was immediately driven to hospital, where he remained for nine days. He was injured in the right arm, the right foot, the left buttock and the right side of the chest. One bullet was removed from his foot and another one is still inside his buttock. The applicant’s mental health, which had broken down in the past, had, it was said, deteriorated considerably since the incident.

It is, perhaps, to be noted at the outset that the case advanced on the applicant’s behalf in that case was that both Article 2 and Article 3 were breached. The decision of the majority in respect of these contentions was (a) that there had been a violation of Article 2 in respect of the state’s obligation to protect his right to life by law and to hold an effective investigation into the life-threatening incident and (b) that no separate issue arose under Article 3.

The court held that the conduct of the police put his life at risk and, accordingly, Article 2 was applicable and the facts of the case called for examination under that Article. Mr Southey relies upon a number of features of the reasoning of the court in support of his proposition that the principles thereby established should be held to apply to the situation with which this case is concerned. In the first place, he draws attention to paragraphs 58-60, the relevant parts of which are as follows:

“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.”

The court observed the following:

“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 further observed that the prevailing climate at that time in Greece was marked by terrorist activities against foreign interests and, accordingly, “the police could reasonably have considered that there was a need to resort to the use of their weapons in order to immobilise the car and neutralise the threat posed by its driver, and not merely a need to arrest a motorist who had driven through a red traffic light”: see paragraph 66 of the judgment.

However, the court observed that the firearms were actually used in a chaotic way by the police in the circumstances and involved “an unspecified number of police officers [firing] volleys of shots at the applicant’s car with revolvers, pistols and submachine guns”. It was recorded that no less “than sixteen gunshot impacts were counted on the car, some being horizontal or even upwards, and not downwards as one would expect if the tyres, and only the tyres, of the vehicle were being shot at by the pursuing police [and that three] holes and a mark had damaged the car’s front windscreen and the rear plate glass was broken and had fallen in”. The conclusion was that “[in] sum, it appears from the evidence produced before the Court that large numbers of police officers took part in a largely uncontrolled chase”.

The court recognised the difficulties faced by the officers involved with the need to evaluate the situation, but continued as follows:

“ … 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.”

The ultimate conclusion on the Article 3 issue was as follows:

“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 …”.

Before considering that case further, I should turn briefly to another case relied upon to similar effect by Mr Southey. It is Putintseva v Russia [2012] ECHR 820 (10 May 2012).

The case involved the death of the applicant’s son, a serving soldier, in February 2002 arising from a gunshot wound caused by a junior sergeant who fired at him when he was trying to escape whilst being escorted from a military hospital back to the garrison’s detention unit to serve a period of detention for ten days following a charge of absence without leave.

The applicant complained under Articles 2 and 13 of the Convention that her son had been killed as a result of the unnecessary use of firearms by a State agent and that the authorities had failed to conduct an effective investigation into her son’s death.

The ECtHR found that Russia had (i) conducted a sufficient and effective investigation into the death, but had (ii) failed to comply with its obligations under Article 2 of the Convention 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 of the Convention.

The essential reasoning can be found in the following paragraphs:

“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 …).”

As to (ii) referred to in paragraph 88 above, the court held that the operative legal framework in place when the death occurred was fundamentally deficient and fell well short of the level of protection “by law” of the right to life that required by the Convention. The Court said this of the provision said to justify the use of a firearm [at 64]:

“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.”

So far as the actual use of the firearm in the circumstances was concerned, the court said this:

“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.”

In response to the arguments based upon the principles enunciated in those two cases, Mr Eadie makes a number of submissions. First, he says that both cases involved firearms and the use of lethal force. Self-evidently, both cases raised Article 2 considerations given the risk to life, but, in his submission, the circumstances were far removed from the kind of situation which this case is concerned.

Second, and related to the first matter to which I have referred, he submitted that the essence of the decision of the ECtHR was to look to see if there was in place a sufficient domestic framework to safeguard against the arbitrary and abusive use of force. In each case the legislative framework was inadequate for that purpose: in Makaratzis the Greek legislation dated to the days of Nazi occupation of Greece and in Putintseva the regulatory framework possessed the inadequacies referred to in the passage quoted in paragraph 90 above.

Against that background, his submission is that it is wrong to regard the principle of having in place a structure that “to the maximum extent possible” prevents loss of life through lethal force as being applicable to what is, in truth, an Article 3 issue rather than an Article 2 issue. He does not, as I understood the argument, say that the guidance to be obtained from these two cases is wholly irrelevant, but he warns about the danger of assuming, by reference to them, that the Convention requires a detailed and prescriptive approach to circumstances such as those giving rise to the present case. He submits that each case is context-specific and that since what is at issue here is force that cannot fairly be described as lethal force, the approach in those cases is not the governing approach. He says that no-one complains in principle about the issue of force in the context of effecting a removal from the UK where necessary; it is all a question of what consequences flow from the fact that there is no “bespoke package” of potential force authorised for use within an aircraft.

I accept the broad thrust of these submissions. Plainly, any use of force in any circumstances carries with it some risk of personal injury to the person to whom it is applied and, occasionally, can in the most unexpected circumstances carry a remote risk of death. That, of course, cannot result in the use of force being proscribed in all circumstances. But since the whole framework that governs the use of force across the detention estate (which is, within the constraints of the space of an aircraft, the framework applied in that context also) is designed to avoid the use of force except where necessary and, where necessary, is restricted to no more force than is necessary, it is difficult to see how that overall framework is wanting in the way that the Greek and Russian frameworks were wanting in the two specific instances with which the cases of Makaratzis and Putintseva were concerned.

Mr Eadie was, in my judgment, justified in saying that there is here, in the first instance, proper statutory underpinning of the use of “reasonable force where necessary” (see section 156(1)(b) and paragraph 2(5) of Schedule 13 of the 1999 Act). Section 156 thus authorises the use of force by DCOs up to the point that an individual has been “delivered” for the purposes of his removal from the UK. It has now been established that that authority extends to the point where the person concerned has in fact been delivered to the foreign state: R (Salimi) v. Secretary of State for the Home Department [2012] EWCA Civ 422.

Furthermore, Mr Eadie refers to the operating standards referred to in paragraph 56 above and suggests that they reinforce that statutory requirement together with the reference in those standards to the contractual requirement on the part of the contractors to purchase and pursue NOMs training. Finally, he refers to the guidance in the form of the Manual which is cascaded down through the NOMs training process to the instructors of the DCOs who constitute the escorts. He drew attention to the emphasis given in the Manual to the standards to be applied and drew specific attention to those parts of the Manual highlighted in paragraphs 54-74 above.

He adds (and the evidence supports him) that risk assessments are done in the case of each person to be removed from the UK and, where a risk of the use of force in connection with that person is identified, arrangements are made for the attendance of a doctor during the journey. As to that matter, Ms Abdel-Hady says this:

“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.”

Finally, Mr Eadie refers to the element of the overall framework that requires the reporting by contractors of the use of force in any case. Ms Abdel-Hady says this in her witness statement:

“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.”

Added to this is the procedure by which complaints can be made and considered. I need not set out in detail the evidence given by Mr Mark Hartley-King, an Assistant Director of the UK Border Agency with responsibility for the Professional Standards Unit (“PSU”) system, because the process has recently been approved and endorsed by the Court of Appeal in R (MM) v. Secretary of State for the Home Department [2012] EWCA Civ 668. Pill LJ (with whom Patten and MacFarlane LJJ agreed) said this about the PSU inquiry in that case:

“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.”

Finally, of course, there is, as Mr Eadie says, the possibility of a complaint to the Prisons and Probation Ombudsman and eventual recourse to civil or criminal proceedings.

Against that background, it does seem to me to be impossible to say that the domestic framework for the use of force is not compliant with the Convention even though the techniques set out within the framework may need some adaptation to cater for the situation in which force is needed within an aircraft. There is undoubtedly room for greater clarity in the way in which use of force techniques are used in the specific context of their use in the confined setting of an aircraft. However, that does not render the current framework non-compliant. Judged by the standards set by Makaratzis and Putintseva, albeit not by reference to the test of whether “to the maximum extent possible” steps have been taken to avoid risk to life, it seems to me plain that the UK meets is Convention obligations by the framework in place. I will summarise the position as I see it in paragraphs 109-11 below, but the position broadly is that, whilst the Convention obligations may be better met by a “bespoke package” of ‘C and R’ approved for use within an aircraft, that does not make the present approach non-compliant.

As a secondary argument, Mr Southey has also sought to rely upon the approach of Wyn Williams J in R (Suppiah) v SSHD [2011] EWHC 2 (Admin) in support of the proposition that if there is a significant risk of a breach of Article 3 by virtue of the application of the current guidance on the use of force then a policy that requires adherence to that policy is itself unlawful.

I ventured an analysis of the background to that proposition in MK and another v SSHD [2012] EWHC 1896 (Admin) at paragraphs 152-156 and indicated my respectful agreement with the conclusion to which Wyn Williams J came. I do not repeat it in full save to draw attention, in particular, to the authoritative derivation of the approach to be found in Munjaz v Merseycare NHS Trust [2006] 2 AC 148. The approach of Lord Hope of Craighead at paragraphs 80-82 repays careful attention.

The evaluation of contested factual evidence is not something ordinarily to be undertaken in a judicial review application. I can, therefore, proceed only on the basis of the material before me, untested though some aspects of it must be. As I have said, there is always some risk of an unexpected and unintended serious injury or even death arising from the use of force, but the evidence is that there has been but one death (that of Mr Mubenga) in the whole history of escorted removals from the UK over a period of nearly 20 years since private contractors were engaged in the process. That death did arise from actions undertaken within an aircraft. Tragic though, of course, it was, it could of itself not be sufficient to put permanently on hold all escorted removals whilst new guidelines on the use of force were promulgated. The result of the immediate review at the time demonstrated that, subject to the additional warnings about positional asphyxia (see paragraph 23 above), the use of force guidelines used for training purposes were sound and safe. There is no compelling evidence of any serious injury having been occasioned to any detainee whilst being subjected to force within an aircraft since that time and, notwithstanding reservations that may have been expressed about the level of complaints about the use of force in such a situation, the evidence of a complaint level of about 1 in 10 cases is hardly indicative of a major systemic problem. Baroness O’Loan concluded that there was no such systemic problem on the evidence she considered and nothing before me contradicts that view. There may be occasions when an individual DCO goes beyond what was necessary and proportionate in the circumstances. In such circumstances, an inquiry may well be justified and disciplinary action (or civil or even criminal proceedings) may also be justified. But occasions such as these, regrettable and reprehensible as they may be, do not condemn the whole system as contrary to Article 3 or indeed Article 2.

On this alternative basis, therefore, I reject the challenge to the present framework for the use of force by escorts in aircraft when assisting in the removal of those from the UK who have no right to remain here. There is undoubtedly scope for a properly accredited system of training for the use of force within an aircraft and there is a clear consensus that it ought to be hastened: arguably it is long overdue. However, the lack of such training does not condemn the current system to being in breach of the Convention provided that what happens “on the ground” does not give rise to unacceptable risks of serious injury. The records do indicate that the use of force is required in a minority of cases and only a relatively small number of such occasions give rise to a complaint about the force used. There has been no evidence of any serious injury (or, of course, of death) since Mr Mubenga’s death some 4½ years ago. This suggests that the message about the need for particular care in the situation has got through to those who are responsible for what takes place even if they have not received the more focused training that they ought to have received.

Some reassurance that this conclusion is correct is given by the recent reports of the monitoring of removal flights which are undertaken by HM Chief Inspector of Prisons from time to time. The most recent, entitled ‘Detainees under escort: Inspection of escort and removals to Afghanistan’, was dated 25-26 June 2012. The general conclusion of the report (which is a detailed report) was as follows:

“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.)

This is hardly a totally clean bill of health for the way such arrangements are handled. The question before me relates solely to the use of force and nothing more and in that context the underlined passage is to be noted. The observation about the use of force appears to be a generic comment and is not based on any demonstrable failings by the staff on the occasion in question or any obvious falling below established standards: there was no evidence of any serious incident of excessive force being used. The report itself represents an improvement on previous reports and the fact that staff will be under scrutiny from inspectors from time to time is an important incentive to appropriate behaviour. In relation to that consideration Ms Abdel-Hady says that teams of monitors visit airports to witness removals (both on an ad hoc basis and where intelligence suggests that a particularly high risk removal is taking place), HM Inspectorate of Prisons visit airports on an unannounced basis and conduct thematic reviews of escorting, the Independent Monitoring Board at Heathrow is able to monitor any escorted removal from Heathrow, all immigration removal centres and all escort vehicles are equipped with digitally recorded CCTV (which in the case of vehicles includes sound) and which is retained for a period of four months and all ‘use of force’ reporting forms are reviewed by a senior manager in Reliance and are then passed to the UKBA for review. Occasionally hand-held video devices are used for high risk removals or those where particularly disruptive behaviour on the part of the detainee is anticipated, but filming on the actual aircraft is not permitted by airlines and there are no powers to compel them to permit filming. Whilst that feature is an unfortunate lacuna, generally those responsible for escort duties must know that they are (or may be) under scrutiny in respect of what they do.

The evidence demonstrates the following during the period since Mr Mubenga’s death:

All that is against the background of a legislative and regulatory framework that places considerable emphasis on the need, if possible, to avoid situations where force is necessary, but where it is necessary to use only reasonable and proportionate force.

That catalogue of considerations leads me to conclude that, as things stand, the framework within which force is used within an aircraft when a removal is being effected is Convention-compliant.

The final issue is the challenge to the decision of the Defendant only to publish parts of the Manual. I have identified in paragraphs 54-74 the general contents of the Manual and I indicated the nature of those parts that have been redacted.

Mr Southey relies on a number of well-established principles in support of his argument. He has referred to what Lord Dyson said in R (Lumba) v Secretary of State [2012] 1 AC 245 where at [35] he said this:

“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 ….”

Lord Dyson also said this at [38]:

“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.”

Mr Southey also referred to Klass v Germany (1979-80) 2 EHRR 214 in support of the proposition that it is unacceptable that a person should be denied a remedy for a violation of the European Convention on Human Rights by reasons of the fact that he is unaware of the violation.

Mr Southey submits that there should be disclosure of so much of the Manual that is necessary for the Claimant to enforce his legal rights which means there should be sufficient disclosure 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. At present, he argues, the Claimant is not able to do these three things. He draws attention to Professor Shepherd’s opinion that the material that has been disclosed still does not contain sufficient detail to allow for an adequate review of standard restraint techniques.

Mr Eadie responds to this by submitting that the redaction has been carried out for operational reasons of sensitivity and security, the judgment having been made by the Defendant that it would be damaging and contrary to the public interest for the redacted parts to be published. He contends that as much as can be put into the public domain has been put there about (a) the circumstances in which force/restraint will be used and (b) the manner in which that force will be exercised. The information that has been redacted relates mostly to the detailed techniques of restraint and, even in relation to that aspect, he says the summaries provide an indication of the technique in question and, in many cases, the circumstances in which they would be applied. In addition to restraint techniques, a small number of other items have been redacted from the Manual in areas where it is judged that disclosure would leave staff vulnerable to countermeasures. These include details of how to disarm prisoners with weapons (including firearms), use of batons, techniques for relocating and searching prisoners under restraint and techniques for moving prisoners onto transport vans. The judgment made by the Defendant is that there is a real risk that all those techniques could be impeded or counteracted by a person with detailed knowledge of them (including by dangerous adult prisoners). However, the short descriptive summary of the redacted material indicates its nature and it is thus possible, it is argued, from the published material, for the public to understand both the shape and structure of the controls in place and in broad terms what techniques will be used and in what circumstances.

The disclosure of the full Manual was raised in proceedings before the Information Commissioner following a Freedom of Information request for its revelation by a journalist. The decision was given on 12 March 2012.

The Secretary of State for Justice relied upon section 31(1) of the Freedom of Information Act 2000 (‘FOIA’) which provides that:

“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…”.

He relied further on section 38(1) which provides that:

“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.”

In relation to the first ground upon which the Secretary of State for Justice placed reliance, the Commissioner recorded the following arguments:

“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.”

One argument relied upon against the Secretary of State’s position was the fact that the Information Commissioner had ordered the disclosure of the information in the related Youth Justice Board case contained in the ‘Physical Control in Care Training Manual (‘PCC Training Manual) and that this was in the public domain. That manual dealt with restraint techniques in relation to young people.

The conclusion of the Commissioner on this matter was as follows:

“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.”

In relation to the second ground relied upon by the Secretary of State, the Commissioner recorded the arguments as follows:

“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 reached was this:

“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.”

The Defendant relies on the same justification to resist disclosure in the present case. It is contended 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 of the Manual were to be released, all adult prisoners and detainees would be able to study the techniques and prepare to counteract them; (iii) this would be to increase the risk of insecurity within the detention estate through an inability to control violent and disruptive elements; (iv) the Prison Service and the Defendant 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, it is said, make it more difficult to comply with that duty: detention would be less safe and more intimidating.

Whilst I am not bound by the decision of the Information Commissioner, and the test I must apply is different, it does seem to me that the essential judgment to which I must come is the same. I have to decide whether the decision of the Defendant (which, for this purpose, is the Secretary of State for Justice) to withhold publication of the redacted parts is one to which he was entitled to come and was thus lawful. It seems to me to be plain that it was. There are obvious risks to the public involved in putting out into the open the descriptions of the techniques that have been withheld. A balance has to be struck and I am unable to say that the decision to withhold that information represents the result of an erroneous decision-making process.

The draft judgment sent to the parties ended at that point. Having seen it, Mr Southey reminded me that what he described as his “final fall back position”, namely, that “the Manual should have been disclosed [in] these proceedings when no [public interest immunity] had been claimed”, was not dealt with in the judgment.

Since no point had been made in the Amended Grounds or the Claimant’s Skeleton Argument about any “failure” on the part of the Defendant to claim public interest immunity and its consequences, and the issue of public interest immunity was not at the forefront of the oral argument, I might be forgiven for having overlooked it as an issue that needed to be dealt with expressly. However, for completeness I will do so, albeit relatively briefly.

Before I turn to the legal arguments, I should, perhaps, re-wind a little to the contents of the Manual. I have endeavoured to describe in paragraphs 54-74 above what is said to have been redacted. I have not myself looked at the redacted parts to satisfy myself (a) that the brief descriptions given of the redacted parts are accurate and (b) that it is appropriate for the contents to remain concealed from public view although I was told by Mr Eadie that I could do so if I wished to do so. No doubt has been cast upon the general descriptions given in each case but, of course, Mr Southey would be justified in saying that it has not been possible to cast doubt on the descriptions because the redacted passages have not been revealed.

There are, of course, cases where the only solution to a problem of this nature is for the court to examine the redacted material and indeed this is often the way matters of this nature are dealt with (see paragraph 135 below). However, it does seem to me that this case is not in the league where the court is compelled to go down that route.

The nature of the redacted material reflects, according to the descriptions given, the manoeuvres involved in a particular ‘C and R’ technique or techniques. The Manual has been produced by the prison service just as was the PCC Training Manual: see paragraph 122 above. It is worth comparing the general contents of each and it is not difficult to find sections that are equivalent. For example, in the PCC Training Manual there is a section entitled “Young person on the ground” and it describes the roles of the three officers in that situation. I will set out what appears in that section:

“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.”

So far as adult prisoners are concerned, the Manual which is the subject of consideration in the present proceedings has a section entitled “Prisoners on the ground – prone (face down)”. Where a prisoner is taken to the ground (which, incidentally, is not permitted as a technique so far as young people are concerned), according to the description of the redacted parts, those redacted parts describe “the specific techniques used by a three officer C&R team to take a violent prisoner, on whom controlling locks cannot be applied, to the ground and the protective measures that must be applied, including pregnant prisoners.” It also describes, according to the description given, “how the numbers 2 and 3 of a three officer C&R team may need to use strength and body weight to take a violent prisoner to the ground in order to apply a controlling lock.”

This short comparative exercise demonstrates, at least to my satisfaction, that the descriptions given of the redacted parts are likely to be entirely accurate. On that basis, I have not considered it necessary to ask to see the redacted parts in order to assess the accuracy of that which is asserted in the descriptions applied. Furthermore, in my judgment, I do not need to see (and have not needed to see) the full document to carry out the balancing exercise that the court undertakes when a claim for public interest immunity is made. It seems to me plain (and this is the conclusion at which I had arrived above) that there is a perfectly legitimate public interest in not revealing the detail of the ‘C and R’ techniques utilised on adults some of whom may be dangerous and volatile prisoners or simply other detainees who may have reasons of their own to be violent physically when subjected to enforced removal from the UK. Leaving aside the possibility of injury to the escorts by those who know what techniques may be used upon them, there are potentially risks to members of the public who might be affected by a detainee who escapes, even if only temporarily, whilst being removed from the UK. Whilst in my analysis above (paragraphs 117-127) I have shown some deference to the view of the Defendant, who may be expected to have knowledge of the issues that may be involved in this context, I am bound to say that this is a view I would have formed myself if confronted with the issue.

As I understand the public interest immunity process (and it is set out fully and authoritatively by Lord Clarke of Stone-cum-Ebony JSC in Al Rawi v Security Service [2012] 1 AC 531 at [145]), the court may, if it thinks it appropriate, inspect the relevant document or documents. However, it is not a pre-condition to carrying out the balancing exercise.

In the Court of Appeal in Al Rawi ([2010] 3 WLR 1069) Lord Neuberger of Abbotsbury MR said this at [26]:

“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….”

It follows that it is not necessary in every case to inspect the relevant document or documents to carry out the balancing exercise. For the reasons I have given, I can see no need to inspect those parts of the documents in issue in this case to decide whether the Secretary of State has carried out the appropriate balancing exercise correctly or whether, as carried out by the court, the balancing exercise reaches the same conclusion.

Given that view it is (and has been) unnecessary to consider some form of closed procedure or an approach involving a “confidentiality ring” (cf. R (Serdar Mohammad) v Secretary of State for Defence [2012] EWHC 3454 (Admin)) both of which would give rise to difficult practical issues.

My conclusion in this regard is predicated on the basis that public interest immunity has been claimed by the Secretary of State. Mr Southey’s reminder to me (see paragraph 128 above) was based on the suggestion that public interest immunity had not been claimed by the Secretary of State. If that means that the Secretary of State has not signed a formal certificate to that effect (which is the normal way of claiming public interest immunity: see [145] in Al Rawi), then technically that seems to be correct. However, throughout the proceedings (at least going back as far as the initial Summary Grounds of Defence dated 23 May 2011), the redaction of the Manual has been sought to be justified on the basis of the “public interest” in doing so, a theme that was maintained in the Defendant’s Skeleton Argument dated 5 February 2013. The position taken before the Information Commissioner demonstrates the attitude of the Secretary of State.

It is, therefore, clear that however the legal arguments were intended to be addressed, redaction was sought to be justified on the basis of the public interest and since no point was taken about a lack of formal certificate, it had not occurred to me that this was an issue. At all events, the production of a certificate in suitable form would doubtless simply be a formality, the essential view of the Secretary of State being clearly articulated in the manner described in paragraph 139 above.

The substance of my view on the issue of public interest immunity being as I have set it out in paragraph 134 above, I reject the ground of challenge that demands the publication, or the revelation to the court or simply to the lawyers, of those parts of the Manual that have been redacted.

Both grounds of challenge, therefore, fail.

It was agreed that the Secretary of State for Justice should, as a formality, be joined as an Interested Party to proceedings and I so direct.

I am grateful to all Counsel for their assistance