Jimmy Mubenga’s tragic death – caused by asphyxia because he was being manhandled by detention custody officers on an aircraft prior to its departure to Angola – is an unfortunate example of the extreme ways in which foreigners are sometimes treated in the UK. Part VIII of the Immigration and Asylum Act 1999 governs the powers and functions of staff escorting persons in the course of removal and provides the legal basis for the use of force. In this case – in which Serco, G4S, Reliance Secure Task Management and the Secretary of State for Justice intervened – the Court of Appeal (Sir Terence Etherton, Richards & Christopher Clarke LJJ) held that the legislative and administrative system governing the use of control and restraint techniques in relation to immigrants being removed by air from the UK adhered to the Home Secretary’s positive duty to provide reasonable protection against risks to life, health and well-being within the meaning of article 2 and article 3 of the European Convention on Human Rights (ECHR).
Moreover, according to the Court of Appeal, where overseas escort services are supplied under contract by private security firms, the application of control and restraint procedures is in line with the approved techniques set out in the Use of Force Training Manual (the manual). Substituting claimant Z who lost below, FI (who had been subject to restraint by a number of officers within an aircraft during an unsuccessful attempt to remove her in September 2011) appealed against Foskett J’s  EWHC 498 (Admin) judgment where he held that the use of force in relation to persons being removed by air from the UK complied with article 2 and article 3 and that the Home Secretary’s decision not to publish parts of her policy on the use of force was not unlawful.
Richards LJ explained at para 3 that this case did not depend on Z or FI’s individual circumstances but that the arguments concerned the sufficiency of safeguards of the framework to meet ECHR rights, not the use of force on a specific set of facts.
Jimmy Mubenga was 46 when he died on 12 October 2010 while he was being deported, owing to a two-year prison sentence for an offence involving some violence, to Angola on a British Airways flight. Expert evidence considered by the Crown Prosecution Service pointed to shortcomings in the training given to security guards. An inquest jury found that G4S staff unlawfully killed Mubenga. He died of cardio-respiratory collapse. After initial reservations about criminal proceedings, charges of manslaughter were brought against Colin Kaler, Terrence Hughes and Stuart Tribelnig of G4S for the killing.
Subsequent to the Mubenga case, which, as Foskett J remarked at para 32, threw “the issue of restraint on aircraft squarely into the public arena”, escort staff had been advised by the National Offender Management Service (NOMS) that control and restraint techniques needed to be administered in line with the manual. Moreover, training on the dangers of positional asphyxia was imparted to removal staff. In removals involving a high risk of control and restraint being necessary on a flight, a medically qualified person was to be allocated. Using force on board aircraft came to be subject to a bespoke training package that had been approved and was scheduled for implementation in late 2014.
Complaining that in breach of the ECHR unsafe control and restraint techniques were being applied on board aircraft and that the techniques in the manual should be publicly available, Z launched judicial review proceedings. Foskett J however held that the use of control and restraint on migrants being removed by air was constrained by a sufficient framework of safeguards that stood up to the standards enshrined in article 2 and article 3 ECHR. He also held that it was legitimately in the public interest to withhold the detail of techniques used on detainees who resorted to physical violence because it represented a policy applied across the prison system.
FI’s application raised three broad issues:
- Firstly, that the publicly available framework relating to the use of force on those being removed by aircraft from the UK does not comply with the obligations imposed by articles 2 and 3 ECHR, in that the Home Secretary has failed to regulate and organise the use of force in this context in such a way as to minimise to the greatest extent possible the risk of harm, in particular by failing to develop and approve techniques for the use of force in the specific environment of an aircraft and to train staff how to use force in that situation.
- Secondly, that the policy on the use of force was unlawful under domestic law because it gives rise to an unacceptable risk of unlawful decision-making or action in individual cases.
- Thirdly, redactions to the manual were being challenged because of the refusal to disclose the full policy on the use of force, in particular because it is impossible to assess the lawfulness of the policy without full disclosure.
The court noted at para 15 that FI’s essential complaint about the manual was that the techniques described in it and on the basis of which training was given were developed for use in and around prisons and were often unsuitable for use in the specific environment of an aircraft cabin.
Dismissing the appeal, and applying Lord Hope of Craighead DPSC’s (as he then was) para 68 approach in Smith v Ministry of Defence  UKSC 41, the Court of Appeal held that articles 2 and 3 ECHR, imposed positive duties on states to (i) put in place a legislative and administrative framework to ensure the effective prevention of risks to individuals’ health and well-being and (ii) ensure that, where there was a real and immediate risk to life, preventative operational measures were adopted to safeguard the lives of those involved so far as practicable.
Agreeing with Foskett J that judging by the standards set out in Makaratzis v Greece (2005) 41 EHRR 49 and Putintseva v Russia (application no. 33498/04, unreported judgment of the First Section dated 10 May 2012) the UK plainly meets its ECHR obligations through the framework in place, Richards LJ held at para 41 that “[t]he emphasis in respect of the framework is on reasonable safeguards, not on regulation of such detail as to minimise to the greatest extent possible any risk to life or risk of ill-treatment.” His lordship went on to hold at para 52 “[w]hen considering the sufficiency of the legal and administrative framework, I think it important to start from the regulation and guidance already in place.”
The court said at para 53 that the law was unambiguous that the use of force and the scope of its application are subordinate to necessity and that the courts provide oversight and control in relation to compliance: i.e. ordinary civil and criminal processes and also, in cases of death through the inquest system. The court explained at para 54 that the manual is of central importance not just for general guidelines but for the guidance about medical considerations, including positional asphyxia, the advice about avoiding and defusing violent situations and the detailed control and restraint techniques described. Noting at para 56 that the system is not at variance with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted by the United Nations in 1990), Richards LJ held that:
55. Detainee custody officers receive practical training by accredited instructors, covering the relevant contents of the Manual. Compliance is reinforced by the requirement to report all instances of restraint and by a system for the monitoring of removals and the investigation of complaints. Each detainee being removed is the subject of a risk assessment, including consideration of any medical or mental health issues, which is recorded in the Person Escort Record so that relevant staff are provided with all necessary information about the detainee. A medical escort is provided where health care clinicians consider that one is required or where there is a high risk that control and restraint will be used.
For the Court of Appeal, the relevant rules and operating standards and the general guidelines set out in the manual underline the personal accountability of officers for using force and the legal limitations on the use of force. Describing the Mubenga case as “an isolated incident”, Richards LJ said at para 57 that NOMS assessed the techniques currently used by escorts “not to be fundamentally dangerous” and the Home Office “reasonably” took that as a “green light to continuing with removals.” Equally, the evidence relating to professional standards did not reveal systemic problems in the application of control and restraint techniques in removals.
Therefore, at para 58 the Court of Appeal was considerably attracted to Foskett J’s conclusion “that the development of a bespoke package for the aircraft environment should be regarded simply an improvement to a framework that is Convention-compliant in any event.” Concurring with the decision below, Richards LJ held that the Home Secretary had done all that “could reasonably be expected of her to afford an appropriate level of safeguards” and he did not find any basis in support of the claim that the framework relating to the use of force on persons being removed by aircraft from the UK does not comply with the obligations imposed by articles 2 and 3 ECHR.
The Court of Appeal held at paras 63 – 66 that the policy on the use of force does not give rise to an unacceptable risk and that Foskett J had been right to conclude at para 105 of his judgment that in the entire 20-year history of private contractors being engaged in escorted removals, whilst tragic, Jimmy Mubenga’s case “could of itself not be sufficient to put permanently on hold all escorted removals while new guidelines on the use of force were promulgated.”
Although detention custody officers at times disproportionately applied force (1 in 10 cases), the whole system could not be impeached on the basis of falling foul of the ECHR as individual cases of misconduct could be handled by way of disciplinary action or civil or criminal proceedings. Foskett J was also similarly correct about the existence of cogent reasons in relation to the redacted parts of the manual not being published. As far as Richards LJ was concerned:
72. … An appropriate balance is struck between description of the relevant techniques (with a proper indication of what has been redacted) and the maintenance of security. I am not persuaded that disclosure of the redacted parts is necessary for the purpose of enabling the appellant to mount her challenge under Articles 2 and 3 to the framework for the use of force in the aircraft environment, as is apparent from the detailed consideration it has been possible to give to that challenge on the basis of the manual in its redacted form. We are concerned in this case with the framework, not with a specific instance of the use of force, where particular issues of disclosure of relevant parts of the manual might arise. As to Mr Southey’s fall-back position that disclosure of the redacted parts of the manual might reveal techniques that were inherently dangerous or gave rise to an unacceptable risk, the case amounts in that respect to a fishing expedition in which the appellant does not even have a relevant interest.
The Court of Appeal also explained at para 73 that the general proposition in the Strasbourg Court’s judgment in Oneryildiz v Turkey (2004) 41 EHRR 325, GC – that particular emphasis should be placed on the public’s right to information – could not be construed as meaning that there was an obligation to publish material even where its publication conflicted with security concerns. “In the absence of a compelling need for disclosure”, at para 75 Richards LJ preferred to avoid complex issues.