Challenging policies on the use of force

Please read Adam Straw’s excellent paper below on challenging policies on the use of force following the decision by the Court of Appeal in R (FI) v. Secretary of State for the Home Department [2014] EWCA Civ 1272.

Adam Straw was awarded Chambers and Partners Human Rights and Public Law Junior of the Year 2014. He is a member of Doughty Street’s new immigration detention group.

Adam’s presentation was delivered at Doughty Street Chambers’ inaugural immigration detention roundtable on 25 November 2014. For more events from the immigration detention group please visit the Doughty Street website at


 Challenges to policies on the use of force

Adam Straw


  1. Articles 2 and 3 of the ECHR require the national law regulating the use of force to secure a system of adequate and effective safeguards.
  2. The Strasbourg court has repeatedly said that an operation involving the use of force “must be regulated and organised in such as way as to minimise to the greatest extent possible any risk to life or of bodily harm”.
  3. That has, for example, been applied to the police use of firearms (Makaratzis v. Greece [2005] 41 EHRR 49, paras 58 and 60); non-lethal force used by the police during a student demonstration (Kemal Bas v. Turkey app no. 38291/07, 19 February 2013); and restraint by prison officers of a detainee (Kurnaz & Ors v. Turkey, app no. 36672/97, 24 October 2007, at §56).
  4. R (FI) v. Secretary of State for the Home Department [2014] EWCA Civ 1272 is a case brought by Emma Norton at Liberty. It was a challenge to the policy and training regarding the use of force on a person being removed from the UK. The claim did not argue that a particular instance of restraint on FI was unlawful, rather that the legal framework in the abstract was unlawful.
  5. Various bodies had recommended that specific techniques for the use of force should be developed, tested by experts, and approved, and then staff should be trained to use them. If that did not happen, and staff were left to improvise their own techniques, the use of force would be more dangerous and injury or death more likely. The Court of Appeal recognized there had been delay in acting upon these recommendations, which were first made in 2008, but decided that the Defendant had acted sufficiently quickly to satisfy the Convention standard.
  6. The Court of Appeal decided that the ‘minimise risk to the greatest extent possible’ standard only applies to the way in which the particular operation under consideration is being regulated. A somewhat lower test applies to the administrative framework: the system must contain reasonable, adequate and effective safeguards against arbitrariness, abuse of force and avoidable accident: §41.
  7. It will take some time to develop, test and approve techniques, and give staff the necessary training. The Court of Appeal’s decision suggests that 6 years is not an unreasonable period for that to take. Yet a ‘particular operation’ involving the use of force during an immigration removal will often take place very quickly. There may only be seconds from when a disruption begins and when force is used. Permission to appeal is being sought.
  8. Whether or not FI is appealed, the Court of Appeal recognised that a particular operation must be regulated and organised in such a way as to minimise risk. So if you have a client who has been injured when the authorities used force against him or her, you will be able to challenge the regulatory framework on the basis that it does not meet this higher standard.
  9. A policy or system will also be unlawful under domestic public law if it gives rise to an unacceptable risk of breach of articles 2 or 3 of the Convention. The Court of Appeal in FI decided that, on the facts, and given there have been very few injuries caused during removal, there was not an unacceptable risk.
  10. Some recent examples of this test being applied to the State’s use of force are as follows.
  11. In Tali v. Estonia 66393/10, 13 Feb 2014 the European Court decided that there was a breach of article 3 in part because Pepper Spray was used on a prisoner inside his cell: §82. That was despite the fact that the prisoner was extremely dangerous, having been convicted of murder, manslaughter and attacks on prison officers; and had threatened officers.
  12.  The Court indicated there must be clear, detailed and binding instructions on the use of tear gas, which sets out as a minimum:
    •  the specific circumstances in which CS gas may be used;
    • that CS gas may not be used in a confined area; and
    • the right of the victim to be granted immediate access to a doctor: §52 and 78. See also Izci v. Turkey 42606/05, 23 October 2013, §63-66; Ali Gunes v. Turkey 9829/07, 10 July 2012, §37, 39-41.
  13. In Shchiborshch and Kuzmina v. Russia appn no 5269/08, 2 June 2014 the police came to the flat of a mentally ill man to try to hospitalize him. He attacked them with a knife and wounded four officers. The officers hit him with batons and he barricaded himself in the kitchen. The police then tried to storm that room and he fatally stabbed himself.
  14. The ECtHR decided there was a breach of article 2 because the attempt to hospitalize the man was not organised so as to minimise the risk to life to the greatest extent possible. The reasons for that included (1) police had not been specially trained in the detention of mentally ill people, (2) no medical personnel were present, and (3) police should have retreated and waited for trained medical assistance, rather than hitting him or storming the kitchen.

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