FI, R (On the Application Of) v Secretary of State for the Home Department

The positive duties under Articles 2 and 3 require an adequate legislative and administrative framework containing reasonable and effective safeguards against arbitrary, abusive or avoidably dangerous uses of force. The framework itself need not minimise every risk to the greatest extent possible. That standard concerns the planning and conduct of particular operations.

An existing framework may remain Convention-compliant while improvements are developed. Once a specific need for improvement has been identified, however, unexplained inaction may be incompatible with the framework duty. The state must do all that can reasonably be expected to provide appropriate safeguards.

Operational guidance may lawfully be withheld where publication would endanger security and disclosure is unnecessary for the just disposal of the proceedings.

The appellant challenged the framework governing the restraint of persons being removed from the United Kingdom by aircraft. The approved techniques had principally been developed for prisons. She contended that the absence of approved aircraft-specific techniques and training breached Articles 2 and 3 of the European Convention on Human Rights and created an unacceptable risk of unlawful force.

Foskett J dismissed the judicial review claim in [2013] EWHC 498 (Admin). A substituted appellant appealed. She also challenged the Secretary of State’s refusal, on security grounds, to publish redacted portions of the Use of Force Training Manual.

The central questions were whether the existing safeguards met the Convention framework duty, whether the policy created a significant risk of unlawful treatment, and whether non-disclosure of the redacted material was lawful.

1. Appeal dismissed. The legislative and administrative framework governing force during removals by aircraft complied with Articles 2 and 3 of the European Convention on Human Rights.

2. The applicable framework duty requires adequate and effective safeguards against arbitrariness, abuse of force and avoidable accidents. It also requires the state to do all that can reasonably be expected to provide the necessary protection. The requirement to minimise risk to the greatest extent possible concerns the regulation, planning and conduct of a particular operation. It does not prescribe the detail required of the general framework. Makaratzis v Greece and Putintseva v Russia were analysed on that basis.

3. The existing framework imposed necessity, reasonableness and proportionality requirements. It provided legal accountability, medical guidance, warnings about positional asphyxia, de-escalation advice, trained officers, risk assessments, incident reporting, monitoring and medical escorts in appropriate cases. The approved techniques were not assessed as fundamentally dangerous, and the evidence did not establish a systemic problem.

4. Once the need for aircraft-specific techniques and training had been identified, doing nothing further would not have been acceptable. The failure to act on recommendations made in 2008 was concerning and unexplained. From late 2010, however, the Secretary of State pursued research, curriculum development, independent scrutiny and implementation of a bespoke package. Although the process was lengthy, it was not unreasonably so. By the commencement of proceedings, the Secretary of State was doing all that could reasonably be expected.

5. The policy did not create a significant risk of treatment contrary to Article 3 or a significant risk to life under Article 2. Isolated unlawful acts by individual officers could attract investigation and civil, disciplinary or criminal consequences, but did not establish that the framework itself was unlawful.

6. The refusal to publish the redacted portions of the Manual was lawful. Publication could enable detainees or prisoners to counter restraint techniques and thereby endanger security and safety. The redacted Manual was sufficient to permit adjudication of the framework challenge. The public’s right to information did not require publication of material whose release would endanger security.

7. It was open to the judge to uphold public interest immunity without inspecting the redacted material. Inspection is not an invariable requirement. As disclosure was unnecessary for the just disposal of the case, there was no compelling basis for a confidentiality ring.

Richards LJ delivered the judgment. Christopher Clarke LJ and the Chancellor agreed.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal and affirmed the dismissal of the judicial review claim: [2014] EWCA Civ 1272.
2. High Court, Administrative Court: Foskett J dismissed the claim challenging the aircraft-restraint framework and the redactions to the Use of Force Training Manual: [2013] EWHC 498 (Admin).