“(1) A detainee custody officer acting in accordance with escort arrangements has power … [to search etc] … (3) As respects a detained person for whose delivery or custody he is responsible in accordance with escort arrangements, it is the duty of a detainee custody officer – (a) to prevent that person’s escape from lawful custody; (b) to prevent, or detect and report on, the commission or attempted commission by him of other unlawful acts; (c) to ensure good order and discipline on his part; and (d) to attend to his wellbeing. … (5) The powers conferred by sub-paragraph (1), and the powers arising by virtue of sub-paragraph (3), include power to use reasonable force where necessary.”
“1. The techniques described in this manual are basic techniques approved by the Prison Service for use by prison officers and such others for whom this training has been authorised for resolving incidents following violent and recalcitrant prisoners, and other persons. 2. It is not suggested that the appropriate response to disruptive or threatening behaviour is necessarily the use of force or that violence should necessarily be met by violence. Every opportunity should be taken to de-escalate the incident and only as a last resort should Control and Restraint techniques be used. 3. Control and Restraint Basic techniques are used by three officers to control and restrain a violent prisoner, using no more force than necessary. The use of force is only lawful if its use is reasonable and proportionate. Where fewer than three officers are present, or in the case of multiple violent prisoners less than a ratio of three officers to one violent prisoner, and it is necessary to use force immediately, staff will need to use whatever force is necessary to protect themselves and others, as long as such force is reasonable and proportionate in the circumstances as they see them. 4. The description of Control and Restraint techniques in the basic manual reflect their use in an ideal controlled environment where the techniques represent the optimum solution for resolving the incident. Operational experience will not always mirror tutorial contrived situations. The unpredictable behaviour of the prisoner requires the officer to have an open-minded approach when applying to a live incident those aspects of training experienced in a controlled environment. In the daily operation of these techniques, the local geography of the establishment or physical inability of staff to perform the techniques as described in this manual, may require staff to adapt those techniques to enable them to gain effective control of the prisoner”
“The deployment of a three officer team is the approved method of dealing with a violent or recalcitrant prisoner. It must only be used as a last resort after all other means of de-escalating (e.g. persuasion or negotiation) the incident, not involving the use of force, have been exhausted. The techniques to be taught in this Section of the syllabus, appertain to the formation of the team and the restraint of the prisoner. The rest of the introduction has been redacted. It describes the key body targets for gaining control of a violent or recalcitrant prisoner.”
“There may be instances when dealing with unplanned incidents that the 3-1 staff/prisoner ratio is impossible to fulfil. Staff should be aware that they have a duty of care to both staff and prisoners. Staff may need to use whatever force is necessary to protect themselves or others, as long as such force is reasonable and proportionate in the circumstances as they see them. If one officer is present at [a] violent incident then Personal Safety should be adopted. Once there are two officers present they should use ‘whatever reasonable force is necessary’ in order to try to bring the situation under control. When three or more officers are present Control & Restraint techniques must be employed.”
“a. It is my opinion that the cabin of a commercial aircraft is a completely different environment to that of a prison not only because of the narrow passages and limited spaces between rows of seats but also because, at altitude and with the standard reduction in cabin pressure that is used, there will be a reduction in the availability of oxygen to those within the cabin. This is of little or no significance in normal situations but any reduction may assume great importance during restraint. b. Further the environment is ‘closed’, the staff present must perforce deal with any and all situations themselves. … d. I am struck by the complete absence within [the Manual] of any discussion, documentation or description of the placing of an individual onto an aircraft, the placing of an individual into a seat of an aircraft and the restraint of the individual within the aircraft shell or on an aircraft seat ….”
“1. I am extremely concerned that staff involved in aviation deportation do not have specific training for the environment in which they have to work. This lack of specific training in my opinion will significantly increase the risk to any individual who is being deported and it will also increase the risks to members of staff. … 4. It is likely that in a few situations an individual may well need to be restrained while on an aeroplane. At present there are no specific techniques detailed in the Use of Force Manual that staff may employ. The staff engaged in these duties will have to apply known techniques or variations of known techniques, in essence they are left to develop ad hoc variations of methods of restraint in the heat of the moment. The history of deaths during restraint repeatedly shows that it is the un-tested and un-approved ‘spontaneous’ techniques that most commonly result in fatalities.”
“Firstly, we would like you to review the current restraint techniques that are being used for overseas removals to ensure that they are not inherently unsafe … The second piece of work is the review of all restraint techniques and mechanical restraints being used by the UK Border Agency, recommendations on what should be used going forward and the accreditation of all techniques and mechanical restraints to be used …. The third piece of work is the production of training manuals and course materials for the above ….”
“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.”
“We conclude that C&R in its purest form is a safe system of restraint, provided it is not stretched outside its design specifications. When supported with a number of safeguards risk is reduced further. This can be summed up as medical support, competent supervisors and staff, effective policies, safe systems of work and risk assessments. Equally, because custody of the detainee may fall within a number of agencies, an effective communication system should be in place so that each receiving agency is provided with the medical and security implications of the detainee. Local instructors must therefore ensure that escort staff are fully competent in recognising the [symptoms] of medical distress which may occur during restraint. They should refrain from applying any technique which may affect a person’s natural cycle of breathing or exacerbate any other medically related problem. A consistent system for recording information must be in place and collated as part of the Escort Pack which is then passed on to the various holding agencies throughout the escort process. A thorough risk assessment and medical examination of the deportee should be carried out prior to any UKBA deportations, ensuring that no known medical risk exists which could compromise a safe, secure flight.”
“In many instances foreign nationals are repatriated on commercial flights. The vast majority are carried out with no reported occurrences. However, at times there are difficulties for staff in the event of the detainee becoming violent. The normal staffing level is 2-3 staff per detainee. No video recording equipment is allowed onto the aeroplane; no additional hand luggage is allowed for the provision of medical equipment. The escort will only continue with the approval of the flight Captain; he/she can order the detainee off the flight just as they can any member of the public who behaves in such a way that could jeopardise the flight. With no dedicated supervisor, Healthcare or additional staff, these situations can be the most vulnerable for both staff and detainee. The seated position and the close confines make any physical restraint hazardous. The application of handcuffs is effective in securing the hands but is subject to ethical debate about their appropriateness. One point to note for staff when restraining a detainee on a commercial flight is the public perception. It is often the case that many passengers are of the same nationality as the detainee and will support them against staff. This has led to the personal safety and well-being of staff being at great risk.”
“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.”
“46. Nonetheless, the recommendation was accepted by UKBA and NOMS was asked to take it forward. I have been told that this part of the project (which I assume to be the ‘curriculum development phase’ of the four-phased approach referred to … above) commenced in May last year and NOMS is due to report in March this year. Their remit includes producing a new manual and training material (e.g. training materials for trainers) specifically directed to the use of force on aircraft and within vehicles. It was a requirement of NOMS that UKBA should establish an independent ‘advisory panel’ the purpose of which would be to assess independently the quality of safety of systems of restraint and equipment proposed for use on escort vehicles, at airports and on to, on-board and off the aircraft. The advisory panel, in its conception, was to act as ‘a critical friend of the NOMS team’ and to review the techniques as they were developed and to submit a final report with recommendations to ministers. I have been told that the ‘Independent Advisory Panel on Non-compliance Management’ was appointed in January this year with a view to taking up appointment in March. It comprises a panel of experts, two of whom are medically qualified, one of whom being Professor Shepherd who has provided a report in support of the arguments advanced on behalf of the Claimant in these proceedings. 47. If the advisory panel has only recently been set up, it is unlikely that it will have played any part in the formulation of the training package due to be completed by March this year, but its first task, as I understand it, will be to review that package, discuss it with NOMS and other bodies, with a view, if agreement can be reached, to reporting unanimously to Ministers. If unanimity cannot be reached, the report will indicate the areas of disagreement and it will be for Ministers to decide what to do. I have been told that the panel has been recruited for twelve months or a lesser period if its work can be completed earlier and that the maximum time it can spend on the project is 24 months. 48. I have also been told that ‘[in] parallel with the work of NOMS in developing the training package and the panel in reviewing it, UKBA is working to source access to a training environment tailored to the use of force on aircraft’. I am told that work on this aspect of the recommendations continues. 49. Ms Abdel-Hardy [Deputy Director in the UK Border Agency] concludes the part of her witness statement that relates to this process as follows: ‘The final phase of this project will be implementing the revised training which will start once we have a training manual and materials produced by NOMS, approved by the advisory panel and agreed by Home Office Ministers.’” ‘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 we wish to see the training package delivered as quickly as possible, and are driving progress through regular project board meetings, the timescale for delivery depends on both NOMS and the Panel. Every effort is being made to ensure there is pace, however this is balanced to meet our commitment to providing the best possible system we could have for escorts on vehicles and aircraft.”
“The positive duties on the state operate at various levels, as one idea is handed down to another. There is a lower-level, but still general, duty on a state to take appropriate measures to secure the health and well-being of prisoners or people who are in some form of detention. This in its turn gives rise, at a still lower level, to two general obligations …. The first is a systemic duty, to put in place a legislative and administrative framework which will make for effective prevention of the risk to their health and well-being or, as it was put in Őneryildiz, para 89 [Őneryildiz v Turkey(2004) 41 EHRR 325 ], effective deterrence against threats to the right to life. Depending on the facts, this could extend to issues about training and the procurement of equipment before the forces are deployed on operations that will bring them into contact with the enemy. The second … is to ensure that, where there is a real and immediate risk to life, preventative operational measures of whatever kind are adopted to safeguard the lives of those involved so far as this is practicable.”
“58. … This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force, and even against avoidable accident. 59. In view of the foregoing, in keeping with the importance of Art 2 in a democratic society, the Court must subject allegations of breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the state who actually administered the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination. In the latter connection, police officers should not be left in a vacuum when exercising their duties, whether in the context of a prepared operation or a spontaneous pursuit of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect. 60. Against this background, the Court must examine in the present case not only whether the use of potentially lethal force against the applicant was legitimate but also whether the operation was regulated and organised in such a way as to minimise to the greatest extent possible any risk to his life”
“70. Nonetheless, while accepting that the police officers who were involved in the incident did not have sufficient time to evaluate all the parameters of the situation and carefully organise their operation, the Court considers that the degeneration of the situation, which some of the police witnesses themselves described as chaotic, was largely due to the fact that at that time neither the individual police officers nor the chase, seen as a collective police operation, had the benefit of the appropriate structure which should have been provided by the domestic law and practice. In fact, the Court points out that in 1995, when the event took place, an admittedly obsolete and incomplete law for a modern democratic society was still regulating the use of weapons by state officials. The system in place did not afford to law enforcement officials clear guidelines and criteria governing the use of force in peacetime. It was thus unavoidable that the police officers who chased and eventually arrested the applicant enjoyed a greater autonomy of action and were able to take unconsidered initiatives, which they would probably not have displayed had they had the benefit of proper training and instructions. The absence of clear guidelines could further explain why other police officers took part in the operation spontaneously without reporting to a central command. 71. In the light of the above, the Court considers that as far as their positive obligation under the first sentence of Art 2(1) to put in place an adequate legislative and administrative framework was concerned, the Greek authorities had not, at the relevant time, done all that could reasonably be expected of them to afford to citizens, and in particular to those, such as the applicant, against whom potentially lethal force was used,the level of safeguards required and to avoid real and immediate risk to life which they knew was liable to arise, albeit only exceptionally, in hot pursuit police operations”
“46. In addition to setting out the circumstances in which deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which officials may use force and firearms, in the light of the relevant international standards (see Makaratzis … §§57-59). In line with the above-mentioned principle of strict proportionality inherent in Article 2 …, the national legal framework regulating arrest operations must make recourse to firearms dependent on a careful assessment of the surrounding circumstances and, in particular, on an evaluation of the nature of the offence committed by the fugitive and of the threat he or she poses. 47. Furthermore, national law must ensure a system of adequate and effective safeguards against arbitrariness and abuse of force and even against unavoidable accident (see Makaratzis … §58). In particular, officials must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the letter of the relevant regulations, but also with due regard to the pre-eminence of respect for human life as a fundamental value ….”
“103. Enfin, la Court déplore qu’aucune directive précise n’ait été prise par les autorités françaises a l’égard de ce type de technique d’immobilisation et que, malgré la présence sur place de professionels formés au secours, aucun soit n’ait été prodigué à Mohamed Saoud avant son arrêt cardiaque (cf., mutatis mutandis, Makaratzis …. §70-71 …).”
“Against that background, it does seem to me to be impossible to say that the domestic framework for the use of force is not compliant with the Convention even though the techniques set out within the framework may need some adaptation to cater for the situation in which force is needed within an aircraft. There is undoubtedly room for greater clarity in the way in which use of force techniques are used in the specific context of their use in the confined setting of an aircraft. However, that does not render the current framework non-compliant. Judged by the standards set by Makaratzis and Putintseva, albeit not by reference to the test of whether ‘to the maximum extent possible’ steps have been taken to avoid risk to life, it seems to me plain that the UK meets its Convention obligations by the framework in place. I will summarise the position as I see it in paragraphs 109-111 below, but the position broadly is that, whilst the Convention obligations may be better met by a ‘bespoke package’ of ‘C and R’ approved for use within an aircraft, that does not make the present approach non-compliant.”
“… As I have said, there is always some risk of an unexpected and unintended serious injury or even death arising from the use of force, but the evidence is that there has been but one death (that of Mr Mubenga) in the whole history of escorted removals from the UK over a period of nearly 20 years since private contractors were engaged in the process. That death did arise from actions undertaken within an aircraft. Tragic though, of course, it was, it could of itself not be sufficient to put permanently on hold all escorted removals while new guidelines on the use of force were promulgated. The result of the immediate review at the time demonstrated that, subject to the additional warnings about positional asphyxia …, the use of force guidelines used for training purposes were sound and safe. There is no compelling evidence of any serious injury having been occasioned to any detainee whilst being subjected to force within an aircraft since that time and, notwithstanding reservations that may have been expressed about the level of complaints about the use of force in such a situation, the evidence of a complaint level of about 1 in 10 cases is hardly indicative of a major systemic problem. Baroness O’Loan concluded that there was no such systemic problem on the evidence she considered and nothing before me contradicts that view. There may be occasions when an individual DCO goes beyond what is necessary and proportionate in the circumstances. In such circumstances, an inquiry may well be justified and disciplinary action (or civil or even criminal proceedings) may also be justified. But occasions such as these, regrettable and reprehensible as they may be, do not condemn the whole system as contrary to Article 3 or indeed Article 2.”