The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human rights, the investigator should be fully independent of the force against whom the complaint was made.
Held: The claim failed. A complaint about the lack of independence of a local police investigation should wait and see if the complaints process, coupled with any criminal proceedings could satisfy the investigative duty under Article 3.
The alleged assault was not so serious as to engage the claimant’s article 2 human rights, and require a full independent investigation. The assault alleged had not threatened the claimant’s life; ‘the Claimant suffered significant pain and injuries which, if not justified in the circumstances, would amount to the infliction of inhuman or degrading treatment contrary to Article 3. He is entitled to have that claim effectively investigated. To be effective, the investigation must be independent. It is also accepted that the local investigation currently being carried out by the Metropolitan Police will not be independent. However, if the investigation were to lead to the prosecution of the officers concerned, the criminal trial would be (or, at least, could be) the effective investigation which Article 3 requires. Furthermore, if the Claimant’s mother (who made the complaint to the police about his treatment) is dissatisfied with the information which is provided to her, with the findings of the local investigation or with its outcome, she can appeal to the IPCC. That is a route which is regularly used by complainants and with some success. It increases the possibility that there will be a prosecution. It also allows for the chance that any deficiency in the local investigation can be remedied. All of this means that it cannot be said at this stage that the IPCC’s direction that her complaint should be examined locally will inevitably breach the Claimant’s right to an effective investigation.’
Nicol J discussed the use of tasers: ‘The Taser is a pistol-like device which shoots two probes from an attached cartridge. Wires are attached to the probes. When the trigger is pulled an electric charge of some 50,000 volts is passed through the wires and, if the probes have become attached to the subject, through his body. The electric pulse lasts for some 5 seconds, or longer if the trigger is held down. The Taser can also be operated by holding it against the body of the subject. This is known as the ‘drive stun’ mode. It is the method which the Claimant alleges was applied to him about three times.
The electric charge can cause intense pain. It also (and this is said to be its principal attraction for the police) incapacitates its subject. The electrical stimulus causes an uncontrollable skeletal muscle contraction which will make the individual lose control of his body. This lasts as long as the charge is applied. It stops when the charge stops, although the person concerned may be dazed and confused for a while longer. There may also be small burn marks on the skin nearest to the probes.
The introduction of Tasers goes back to the Patten Report in 1999 (‘A New Beginning: Policing in Northern Ireland’) which had called for substantial investment in research to find an acceptable, effective and less potentially lethal alternative to the plastic baton round. Tasers were developed in the United States. They were first used in the UK in 2003. Originally, their use was confined to firearms officers. A somewhat wider use of them is allowed now by specially trained units (at least in some police forces). It was firearms officers who used them on this occasion, but the Claimant relies on the potentially wider use of Tasers as one reason why this incident merits particularly careful investigation.
The use of Tasers is closely monitored. Every incident in which a Taser is deployed (whether discharged or not) is reported to the Association of Chief Police Officers (‘ACPO’) and the Home Office Scientific Development Branch. A panel of independent medical experts reviews periodically the use of Tasers. They comment that no deaths or serious injuries attributed to Taser use have occurred since the introduction of the device in 2003. They assess the risk of death or serious injury from the use of Tasers within the ACPO Guidance and Policy as very low. It is not zero as there have been two reported incidents in the USA of subjects who sustained fatal head injuries as a result of Taser-induced falls. ACPO guidance is that Tasers should only be used where officers are facing violence or threats of violence of such severity that they need to use force to protect the public, themselves or the subject.
The IPCC’s approach to the use of Tasers has varied over time. In 2003 when they were first introduced, the IPCC’s predecessor, the Police Complaints Authority, required the police to refer to it any incident in which a Taser had been discharged. The PCA supervised the first few investigations into Taser use because of the considerable public interest, but since that time the vast majority of matters have been sent back to the police force concerned for local investigation. In 2005, the IPCC changed the criteria for referral. They were brought into line with referrals where firearms were discharged i.e. referral to the IPCC was required whenever their use: (i) resulted in death or serious injury; (ii) caused danger to the public; or (iii) revealed failings in command. Police forces could, of course, voluntarily refer other uses of Tasers to the Commission. In September 2007, the IPCC responded to the pilot project to allow specially trained units (and not just firearms officers) to use Tasers. In the forces which participated in the pilot, the IPCC required all public complaints concerning the use of Tasers to be referred to it. In November 2008 the extension on use of Tasers to specially trained units was applied nationally. In consequence, from 1st June 2009, the IPCC requires any complaints involving the use of Tasers to be referred to it.’
Nicol J
[2009] EWHC 2589 (Admin)
Bailii
European Convention on Human Rights 2 3, Police Reform Act 2002
England and Wales
Citing:
Cited – Assenov and Others v Bulgaria ECHR 28-Oct-1998
An allegation of violence by a police officer did require a thorough, impartial and careful investigation by a suitable and independent state authority: ‘The court considers that in these circumstances, where an individual raises an arguable claim . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Saya And Others v Turkey ECHR 7-Oct-2008
The applicants had attended a May Day rally and had been arrested by the police. They alleged that excessive force was used during their arrest. They suffered injuries which included tenderness to back of the legs and back, scratches on the back and . .
Cited – Regina v The Director of Public Prosecutions, Ex Parte Manning, Ex Parte Melbourne QBD 17-May-2000
The applicants sought judicial review of the decision of the Director not to prosecute anybody after the death of their brother in prison custody, and while under restraint by prison officers. The jury at a coroner’s inquest had returned a verdict . .
Cited – Zelilof v Greece ECHR 24-May-2007
The Court considered that entrusting the investigation into an allegation against the police to a special agency of the police dealing with disciplinary investigations was an ‘element that reinforces the independence of the inquiry, as the agent . .
Cited – Banks v United Kingdom ECHR 6-Feb-2007
The applicants complained of maltreatment by prison officers in breach of article 3. The matter had been investigated by the Crown Prosecution Service which had decided not to prosecute. Civil proceedings had been raised and settled. The applicants . .
Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Ramsahai And Others v The Netherlands ECHR 10-Nov-2005
(Grand Chamber) The police had shot someone suspected of stealing a scooter. The family complained that they had not been given full access to the documents seen by the enquiry into his death.
Held: In order to be ‘effective’ as this . .
Cited by:
Cited – Kevin Fox v United Kingdom ECHR 15-Jan-2010
The claimant said that he had been severely assaulted by police officers on his arrest, and that the respondent had failed to provide a proper investigation and or remedy.
Held: The court replied with questions for the parties. . .
Cited – Kevin Fox v United Kingdom ECHR 20-Mar-2012
The claimant said that he had been severely assaulted by police officers when being arrested. He had been ‘tasered’ four times at least. The taser had been applied directly to the skin, rater than from a distance, and psychiatrist compared it to . .
Lists of cited by and citing cases may be incomplete.
Police, Human Rights
Leading Case
Updated: 09 November 2021; Ref: scu.377209