Factual and Procedural Background
This case concerns the use of force to facilitate the removal from the UK of individuals who have no legal right to remain and who resist cooperation with removal procedures. The claim is brought by the Plaintiff, subject to an anonymity order agreed between the parties and previously made in related proceedings. The challenge is not concerned with the individual circumstances of the Plaintiff but addresses the adequacy of the existing framework for control and restraint ("C and R") used on persons subject to removal while on board aircraft.
Annually, approximately 15,000 to 17,000 enforced removals occur, with around 4,750 involving escorted overseas removals, and force being applied in about 11.9% of those cases. Complaints regarding the use of force are rare and only a small fraction are substantiated. The Manual governing the use of force was promulgated in July 2006 and is a key document in the dispute.
Concerns regarding the use of control and restraint techniques in the context of removals have been raised since 2007/2008, including reports of alleged abuse. A significant report titled "Outsourcing Abuse" compiled nearly 300 cases of alleged assault between 2004 and 2008, with 27% of incidents occurring on aircraft. Subsequent reviews, including one by Baroness Nuala O'Loan, found no systemic abuse but recommended improvements in training, justification, and use of restraint techniques.
Further internal reviews and reports, including one by the National Tactical Response Group ("NTRG") in 2008, identified specific concerns about restraint techniques on aircraft, including the risks of positional asphyxia and the need for bespoke training and equipment. Despite these recommendations, progress was slow, with some recommendations only partially implemented years later.
The death of Mr. Mubenga in October 2010 during restraint on an aircraft heightened scrutiny of the use of force in this context. Following this, a temporary suspension of restraint techniques on scheduled removal flights was lifted after assurances that training was safe and compliant with established policies. Subsequent reports and reviews have emphasized the need for improved training, risk assessment, medical support, and quality assurance in the removal process.
An Independent Advisory Panel was established in early 2013 to review and advise on the development of new training and techniques specifically tailored to the use of force during removals involving aircraft. Work continues on developing suitable training environments and materials.
Legal Issues Presented
- Whether the current framework for control and restraint ("C and R") used during removals from the UK, particularly on aircraft, breaches Article 3 of the European Convention on Human Rights (ECHR) and potentially Article 2.
- Whether the Defendant's decision to publish only a redacted version of the Use of Force Training Manual is lawful.
Arguments of the Parties
Plaintiff's Arguments
- The current framework for control and restraint, as reflected in the Use of Force Training Manual, breaches Article 3 and possibly Article 2 of the ECHR because it is not sufficiently regulated to minimize risks to life and health during removals on aircraft.
- The lack of a bespoke, accredited training package for use of force specifically designed for aircraft settings results in potentially unsafe, unapproved techniques being used.
- The Defendant's partial publication of the Manual, with redactions, unlawfully restricts the Plaintiff's ability to understand, challenge, and enforce legal rights concerning the use of force.
- Relies on the principles from Makaratzis v Greece and Putintseva v Russia to argue that the legal framework must be sufficiently regulated to prevent arbitrary or excessive use of force and to minimize risk to life.
Defendant's Arguments
- The current framework, while in need of further development and improvement, complies with the ECHR. It is supported by statutory authority, operating standards, risk assessments, medical support, and reporting mechanisms.
- There are legitimate operational and security reasons for redacting parts of the Manual, mainly to prevent detailed restraint techniques from becoming publicly available, which could undermine security and safety within the detention estate.
- The existing framework includes appropriate safeguards, training, and oversight, and the use of force is restricted to what is reasonable and proportionate.
- Contends that the cases relied upon by the Plaintiff involve lethal force and Article 2 issues that are materially different from the use of force in removals, which is generally non-lethal and governed by a different standard.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Makaratzis v Greece (2005) 41 EHRR 49 |
Establishes that the use of force by state agents must be regulated and organized to minimize risk to life and to prevent arbitrary or abusive use of force under Article 2 ECHR. |
The court considered the principles from this case relevant but distinguished it on the facts, noting that the framework governing use of force in removals is more comprehensive and does not involve lethal force. |
| Putintseva v Russia [2012] ECHR 820 |
Confirms the need for a sufficient legal and administrative framework regulating the use of force to protect the right to life under Article 2 ECHR. |
The court acknowledged the principles but found the domestic framework for removals compliant, given the non-lethal nature of the force and statutory safeguards. |
| McCann and Others v. the United Kingdom |
Used to illustrate the importance of planning and control in the use of force by state agents. |
Referenced in the reasoning supporting the need for regulated use of force but not directly determinative of the present case. |
| R (Salimi) v Secretary of State for the Home Department [2012] EWCA Civ 422 |
Confirmed statutory authority for the use of reasonable force by detainee custody officers up to the point of delivery to the foreign state. |
Supported the Defendant’s argument that statutory authority underpins the use of force in removals. |
| R (MM) v Secretary of State for the Home Department [2012] EWCA Civ 668 |
Validated the adequacy of the complaint and investigation procedures relating to use of force under Article 3 procedural obligations. |
Supported the Defendant’s position regarding the effectiveness of complaint investigations. |
| R (Suppiah) v SSHD [2011] EWHC 2 (Admin) |
Addressed the lawfulness of policies that risk breaching Article 3 by requiring adherence to potentially unlawful force guidelines. |
Referenced by the Plaintiff; the court agreed with the principle but found no breach in the current framework. |
| Munjaz v Merseycare NHS Trust [2006] 2 AC 148 |
Authoritative guidance on the lawfulness of restraint and use of force in healthcare settings. |
Supported the legal analysis of proportionality and necessity of force. |
| R (Lumba) v Secretary of State [2012] 1 AC 245 |
Established the right to know the policy under which an individual is subject to public law decisions, including the extent of disclosure required. |
Guided the court’s approach to the disclosure issue concerning the redacted Manual. |
| Klass v Germany (1979-80) 2 EHRR 214 |
Recognized the right to a remedy for violations of the ECHR, including the right to be informed of such violations. |
Referenced in relation to the disclosure argument about the Manual. |
| Al Rawi v Security Service [2012] 1 AC 531 |
Set out principles for public interest immunity and the court’s approach to balancing competing interests. |
Informed the court’s approach to the public interest immunity claim concerning the redacted parts of the Manual. |
| R (Serdar Mohammad) v Secretary of State for Defence [2012] EWHC 3454 (Admin) |
Discussed confidentiality rings and closed procedures in sensitive cases. |
Considered but deemed unnecessary in this case. |
Court's Reasoning and Analysis
The court undertook a detailed review of the factual and legal context surrounding the use of force in removals from the UK, particularly on aircraft. It acknowledged the tragic death of Mr. Mubenga as a significant event prompting scrutiny and improvements but found that the overall framework governing the use of force is supported by statutory authority, operational standards, risk assessments, medical support, and complaint procedures.
The court analyzed the principles from the European Court of Human Rights cases Makaratzis v Greece and Putintseva v Russia, which require a regulated and effective legal framework to prevent arbitrary or excessive use of force and to minimize risks to life. It distinguished those cases on the facts, noting that they involved lethal force and fundamentally deficient legal frameworks, whereas the present framework is non-lethal and includes appropriate safeguards.
The court accepted that while the current Use of Force Training Manual and related guidance may not be bespoke for aircraft settings, the general principles of necessity, proportionality, and reasonableness apply and are supported by training and oversight. It noted the ongoing development of specialized training and the establishment of an advisory panel to improve the framework.
Regarding the disclosure challenge, the court considered the balance between transparency and operational security. It found that the redacted parts of the Manual mainly concern detailed restraint techniques, disclosure of which could undermine security and safety by enabling detainees to counteract such techniques. The court found the Defendant’s decision to redact these parts lawful and justified by public interest immunity principles, referencing the Information Commissioner’s decision and relevant case law.
Overall, the court concluded that the existing framework is compliant with the Convention and that the use of force in removals on aircraft does not breach Articles 2 or 3 of the ECHR. It recognized the need for continued improvement but rejected the claim that the current framework is unlawful or that the redacted Manual should be fully disclosed.
Holding and Implications
The court DISMISSED both grounds of challenge brought by the Plaintiff.
The holding confirms that the current legal and operational framework regulating the use of force during removals from the UK, including on aircraft, is compliant with Articles 2 and 3 of the European Convention on Human Rights. The decision upholds the Defendant’s authority to withhold publication of sensitive parts of the Use of Force Training Manual on grounds of operational security and public interest immunity.
The immediate effect is that the Plaintiff’s claim fails and the existing framework remains in place. The court acknowledged ongoing efforts to develop specialized training and improve procedures but did not establish any new precedent altering the legal standards for use of force in this context.