R (on the application of FI) v Secretary of State for the Home Department  EWCA Civ 1272 – read judgment
The Court of Appeal has held that the physical restraint of persons being removed from the UK by aircraft is subject to a sufficient framework of safeguards to fulfil the state’s obligations under Articles 2 and 3 of the European Convention on Human Rights. Further, the decision of the Home Secretary not to publish aspects of the applicable policy on the use of such control and restraint is lawful.
FI was restrained by detainee custody officers during an attempt to remove her from the UK in 2011, though the issues on this appeal did not turn on the specific circumstances of her case. In issue was the sufficiency of the framework of safeguards on the use of such restraint as contained predominantly within the Use of Force Training Manual (the “Manual”).
The Manual describes control and restraint techniques (“C&R”) which have been approved by the Prison Service and are used on planes during the removal of individuals from the UK. FI argued that C&R is often unsuitable for use in aircraft cabins, leaving officers to apply ad hoc and unapproved techniques and thereby significantly increasing the risk of injury and/or death to detainees.
In July 2008 a report by the National Offender Management Service (“NOMS”) had recommended that specific control techniques be developed for use in relation to seated detainees and that staff be given training specific to the aircraft environment. No action was taken in this respect, and in October 2010 a detainee, Jimmy Mubenga, died of asphyxiation while being subjected to C&R on board an aircraft. NOMS reviewed C&R, and in November 2010 concluded that “in its purest form” C&R was a “safe system of restraint, provided it is not stretched outside its design specifications.” That report recommended the development of a bespoke system for the restraint of detainees on aircraft. A timetable of two to three years for the introduction of a bespoke training package was laid out in December 2010. That package was approved in March 2014 for implementation later that year.
FI asserted that by failing to develop and approve techniques for the use of force in an aircraft environment and to train officers in such techniques as at February 2011, the Home Secretary had failed to regulate the use of force in that environment so as to minimise the risk of harm to the greatest extent possible. It was said that this failure both breached the UK’s obligations under Articles 2 and 3 ECHR and was unlawful under domestic law (R(Munjaz) v Mersey Care NHS Trust  UKHL 58) as it created an unacceptable risk of treatment contrary to Article 3.
FI separately argued that the redaction from public view of certain parts of the Manual pertaining to methods of gaining control of a violent or recalcitrant prisoner was unlawful.
The court analysed the judgment of the Grand Chamber the European Court of Human Rights (“ECtHR”) in Makaratzis v Greece (2005) 41 EHRR 49. It noted that while the state’s obligation is to minimise the risk of harm to the greatest extent possible insofar as the planning and carrying out of a particular operation involving the use of force (e.g. an arrest) is concerned, its systemic duty in relation to the implementation of a framework of safeguards applicable to such operations is to do all that can reasonably expected of it to afford safeguards against harm (paras. 41, 61).
Applying the latter test, the court held that, as at February 2011, the Home Secretary had done all that could reasonably have been expected of him to safeguard the use of force against those being removed from the UK by aircraft. It was attracted to the view that the framework of safeguards existing then and subsequently in the Manual was ECHR-compliant. However, as the need for a bespoke package of techniques and training had been identified, it would have been unacceptable had that not been acted upon. The recommendations in the NOMS November 2010 report had been consistently progressed and in the circumstances the timetable had not been unreasonably long. The delay between 2008 and 2010 in reacting to the identified need for such a package was not sufficient to justify a finding that Articles 2 and 3 had been breached.
The court further held that the Manual did not give rise to an unacceptable risk of harm. It also accepted the Home Secretary’s justification for redacting certain parts of the Manual, namely that to reveal the material detailing specific restraint techniques would prejudice security in prisons.
Comment – minimising harm to the greatest extent possible
On one view, the two distinct tests that the Court of Appeal derived from Makaratzis may overlap to a significant extent. If the state is to do all that is reasonably expected of it through the framework of safeguards it implements to avoid harm arising from its use of force, it might be said (as Articles 2 and 3 are the most fundamental of rights) that it should accordingly minimise the risk of harm to the greatest extent possible, in the circumstances, through those safeguards. Such a conclusion seems attractive, as the systemic duty of the state would be as exacting as the duty on its individual agents, most commonly police officers, who are left to plan and execute individual operations.
It may be that the derivation of two separate tests from Makaratzis has arisen as a result of the difficulties identified by the Supreme Court (S v L  UKSC 30, para. 76) in ascribing formulaic significance to the inevitably general statements of principle expounded by the ECtHR. In any event, putting the test on the footing suggested above, it might be argued that the Home Secretary, as at February 2011 and indeed subsequently, had not done all that could reasonably expected of him to safeguard against harm where force is used on board aircraft in the course of removing individuals from the UK, having regard to both the inaction in the face of the 2008 NOMS Report and the somewhat lengthy implementation of the recommendations contained in the 2010 NOMS Report.
Michael Deacon is a pupil barrister at 1 Crown Office Row
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