NB THE HOME OFFICE ANNOUNCED, 6 DAYS AFTER PUBLICATION OF THIS REPORT,  THAT CLOSED CIRCUIT TV WAS TO BE FITTED IN ALL REMOVAL VANS

 © 2004 Medical Foundation for the Care of Victims of Torture

A registered charity, number 1000340

Contents

Harm on Removal: Excessive Force against

Failed Asylum Seekers

Executive Summary

Over a period of 15 weeks (19^th April – 30^th July 2004), 14 individuals who claimed they had been subjected to the excessive or gratuitous use of force during an attempt to remove them from the UK were examined by a doctor who either currently works at, or has worked for, the Medical Foundation in the past. All 14 of the individuals had originally claimed asylum in the UK, and their claims had been unsuccessful. They were all held in one of four identified detention facilities prior to the removal attempt. In all 14 cases, doctors prepared a medical report containing their assessment of the consistency between the individual’s account of the treatment suffered and the injuries noted on examination. These reports were examined collectively, and the findings form the basis of this study.

The cases reveal worrying incidences of harm, which in turn suggest certain practices of abuse, with four patterns emerging: (i) the use of inappropriate and unsafe methods of force which carry higher than acceptable injury risk; (ii) the use of force even after termination of the removal attempt, often out of sight inside escort vehicles; (iii) continued use of force even after the detainee had been restrained; and (iv) the misuse of handcuffing, which would appear to be deliberate in some cases. Although our sample is small, the patterns that emerge are repeated in many of the cases, raising concern that there may be a systemic problem of abuse, rather than a number of isolated incidents. 

Analysis of the cases suggests that excessive or gratuitous force was used during the removal attempt of 12 out of the 14 individuals examined. In all 12 cases, medical evidence supports the detainee’s allegations of the injury method. In the other 2 cases, although medical evidence reveals the presence of some injuries, it is difficult to state with any degree of certainty whether or not the force employed was disproportionate. The final judgement in all 14 cases would, of course, rest with the Courts.

The use of excessive force against individuals who are in the custody of the State will automatically raise issues under human rights provisions for both the State and the private security company involved in the actual abuse. In addition, the abuse will almost certainly constitute an assault, leaving perpetrators subject to criminal prosecution or civil action.

The Medical Foundation is extremely concerned by the findings of this study, and strongly recommends that an automatic medical examination take place of any individual who is the subject of a failed removal attempt. In addition, it is vital if this practice is to be eradicated that malpractice is reported, and perpetrators investigated and prosecuted where appropriate. To this end, it is essential that the victim of the assault, together with any witnesses, be permitted to remain in the UK in order to pursue any legal course of action. It is essential that those involved in the physical removal of failed asylum seekers receive comprehensive training in the proper use of restraint techniques.

Introduction

This report presents the findings of research conducted by the Medical Foundation for the Care of Victims of Torture (the “Medical Foundation”) on the occurrence of harm by State or private detention custody officers of individuals whose claims for asylum in the UK have been unsuccessful and who are detained pending their removal, and deals in particular with the use of force occurring during the attempt to remove individuals from the United Kingdom.

This research was initiated in response to growing concerns amongst human rights organisations, refugee agencies, immigration detainee visitors groups,[1] and legal practitioners about a small but worrying number of allegations of harm occurring in detention, during transfers and on attempted removal. Immediately prior to the initiation of this project, the Medical Foundation documented two cases of alleged assault that had been referred to us for medical documentation, on 21^st January and 1^st April 2004 respectively. In both cases the individuals concerned demonstrated clinical findings consistent with their allegations of very recent abuse. In light both of growing concerns generally and its own experience, the Medical Foundation sought to investigate this problem through the recording of harm of detainees alleging assault during the removal process.

It is not the intention of this report to consider the legitimacy of the detention or removal from the jurisdiction of asylum seekers or failed asylum seekers per se. Nor does it deal with the general provision or adequacy of medical care within detention facilities, save where this relates specifically to the issue of physical harm and abuse during failed removal attempts.

During a 15-week data collection period (19^th April – 30^th July 2004), 14 individuals who alleged that they had been subjected to the use of excessive force during the attempt to remove them were interviewed and medically examined by a doctor who either currently works at, or has worked at the Medical Foundation in the past. In each case, the doctor detailed the examination findings in a medical report, and these reports form the basis of this study.

It is acknowledged that involuntary removal may necessitate the use by escort personnel of control and restraint techniques and occasionally a proportionate degree of force, [2] and that such techniques carry an inherent risk of injury, particularly where removal is physically resisted. Section I of this report considers the compatibility of

the medically documented injuries with the use of reasonable, proportionate force, indicating where appropriate the application of seemingly excessive or gratuitous force. The section indicates the various methods of force identified by the 14 detainees during interview. It goes on to examine the nature of the injuries sustained as a result of the application of that force, and concludes with an examination of a number of concerns raised by the nature and extent of the injuries recorded.

In order to set these alleged assaults and the corresponding medical findings in their legal context, Sections II and III of this report provide an examination of the legal consequences and avenues of redress in respect of assaults occurring in State custody.

Section II provides an assessment of the human rights law implications of the abuse of detainees. This section includes an analysis of the justifiability of force and the interaction of the principle of reasonable force with human rights standards. It explores the issue of State liability where facilities or aspects of the operation of immigration enforcement and control have been contracted out to a private security service, before going on to consider the practicalities of establishing a breach of human rights provisions.

Section III assesses the criminal and civil law implications of the assault of detainees. Experience has shown that it is typically a member of an immigration detainee visitor group or, if still acting, the individual’s asylum lawyer who is first made aware of the allegation of excessive or gratuitous force. These individuals may be unfamiliar with the criminal and civil law implications of the actions complained of, or of the procedures necessary to initiate a legal action. Identifying and instructing a lawyer with experience in these areas may take time, a problem that is exacerbated by a lack of funding for the pursuit of these actions. In the meantime, if any subsequent action is to succeed, and if impunity is thereby to be avoided, it is vital that evidence be collected as soon as possible. This section is therefore intended to provide guidance on steps that should be taken to protect evidence before a lawyer with particular expertise in criminal and civil law can be instructed. It provides a practical summary of the various avenues of legal redress open to an individual who has been assaulted in the custody of the State, and includes some of the evidential considerations that may need to be addressed.

Neither Section II nor Section III attempts to provide a legal argument or case in respect of the individually documented cases included in Section I. They refer instead to the general principles applicable where such harm occurs. It is intended that Sections II and III will help practitioners and other interested parties to collect appropriate evidence and pursue a legal action in respect of any allegation of harm arising in similar circumstances.

Section IV of this report concludes with a number of recommendations, indicating where improvements might be made to current practice. These recommendations arise directly from the medical findings, the legal summaries and the individual testimonies provided for the purpose of this study, and are not intended to represent an exhaustive list. It is hoped, however, that the implementation of these recommendations might assist in stemming the apparent practice of excessive or gratuitous force on removal identified in this study.

ELLIE SMITH

Human Rights Research Officer

Medical Foundation for the Care of Victims of Torture

DR CHARLOTTE GRANVILLE-CHAPMAN

Health and Human Rights Advisor

Medical Foundation for the Care of Victims of Torture

NEIL MOLONEY[3]

Barrister

1 Grays Inn Square

London

October 2004

Section I

Harm on Removal: Medical Findings

by Dr Charlotte Granville-Chapman[4]

1  Introduction

Medical findings contained in this report have been presented and analysed with the understanding that some degree of force or restraint will almost inevitably be used during some non-voluntary removal attempts.  The author has assumed that any recourse to force during the removal process should be limited to that strictly necessary under the circumstances.  Despite this working assumption, however, the evidence collected in this study suggests that methods of restraint are being misused in a manner not consistent with principles of necessity, proportionality, safety and dignity.

The descriptions of ill treatment contained in this report come solely from the individuals alleging excessive use of force.  In each case, however, medical evidence is available to test the allegation of abuse, and to provide objective, corroborative medical opinion as to whether or not the injuries could have occurred in the manner and timeframe described.[5] 

Several patterns of alleged ill treatment emerge when the data are examined collectively.  This section describes these patterns and summarises the medical evidence collected.  It concludes with a number of concerns raised by the medical findings.

2 Methodology and referrals

Referrals of individuals alleging assault on attempted removal were provided by visitor groups and solicitors, who were asked to complete and return a referral form (Appendix A).  Referrals were considered by the Medical Foundation Legal Officer and a doctor in order to assess whether the case should be accepted for interview and documentation.[6]  Several referrals were not accepted, either because the referral was received too late after the alleged incident or because (in one case) an operation was required as a result of the alleged use of force and the hospital clinician was therefore better placed to document the injury; meaning, therefore, that potentially the most serious case was excluded from this study.  In addition, one individual was removed from Harmondsworth Removal Centre prior to our conducting a medical visit, although the visit had been arranged prior to the removal.  This case was previously known to the Medical Foundation, which had produced a medico-legal report documenting evidence of past torture in the individual’s country of origin.

At the outset of the project we aimed to conduct medical examinations within five days of the alleged incident, in order not to miss clinical signs such as bruising and swelling. This period proved in most cases, however, to be unrealistic, as there were delays both in receiving the referrals and in arranging medical visits.  These delays mean it is possible that our findings under-represent the injuries sustained.  The time periods between incidents and examinations were: 5 days in two cases, 7 days in three cases, 8 days in two cases, 11 days in two cases, 12 days in one case, 13 days in one case, 15 days in two cases, and 21 days in one case (giving a mean of 10.3 days).

Six doctors were involved in conducting medical examinations; all either work currently, or have worked, at the Medical Foundation.[7]  They summarised their findings in the form of objective medical reports, which form the basis of the information given in this paper.  Consent was sought from each detainee by the visiting doctor to obtain relevant medical records, share information with a legal representative, and to use their information in anonymised form for research purposes. 

Data collection began on 19^th April 2004 and ended on 30^th July 2004, giving a data collection period of 15 weeks.[8]  The decision to stop collecting data was taken when we had identified certain patterns of abuse to which we felt we must draw attention.  Notwithstanding this, referrals continue to be made, suggesting that problems persist.

3        Summary of the data

3.1 Overview

The six doctors visited detainees whose removal attempts had started in Yarls Wood, Tinsley House, Campsfield House and Harmondsworth removal centres.

Of the 14 cases, 12 were male and 2 female.  Their countries of origin were Uganda (2), Ivory Coast (1), Guinea Conakry (2), Liberia (1), Guinea-Bissau (1), Nigeria (2), Tanzania (1), Ghana (1), Togo (1), Jamaica (1) and South Africa (1).  All were black.

Cases 1, 5, 8 and 13 disclosed previous torture in their countries of origin, and cases 1 and 5 described a deterioration in their psychological state following the removal attempt, stating that it had ‘stirred up’ memories of past violence.

3.2 Force used

The methods of restraint or assault described by the detainees include: being dragged along the ground, being kicked or kneed, being punched – including to the head and face, being elbowed, having the thumb forcibly bent back, pressure being applied to the angle of the jaw, pressure exerted on the neck, being sat on (thorax and abdomen), and assault to the genitals.

None of the 14 cases reported being subject to pharmacological restraint or sedation, although case 7 reported that he was threatened that “he would be injected with drugs”.

3.2.1 Type of force used dangerous or unjustifiable

Some methods of force described are in themselves concerning – firstly, in terms of injury risk: any form of restraint involving restrictive positioning (especially compression of the chest) or pressure on the neck carries with it risk of serious injury and even, in the most extreme circumstances, death, and its use must therefore be infrequent, very cautious, and seen as a method of last resort for the self-defence of the custody officer only.[9]^{,[10],[11],[12]}  Case 5 reported being pushed prone to the ground, with pressure exerted on the back of his neck, his arms handcuffed behind his back whilst an officer sat on his upper back, and repeatedly pushed his chest down into the ground.  This description raises concern that neck and chest compression are being used, as does case 13, where it is recorded that “one male escort put a hand onto his neck hard enough so that he could no longer draw breath”.  Another example is given by case 11: “he said that another escort officer took hold of his throat over his larynx causing pain…He said he felt his eyes were coming out and he was nearly dead.”  These allegations are to an extent corroborated by examination findings such as bruising under the jaw and tenderness over the larynx.  

Secondly, certain methods of described force seem hard to justify either as appropriate forms of restraint or as strictly necessary under the circumstances recounted to us, or in any case.  Examples include blows directed at the head and face, and squeezing and pulling of the genitals.

3.2.2 Misuse of force

Another issue arising is the apparent misuse of restraint techniques, in particular in relation to handcuffing.  The data raise concerns about the way in which handcuffs are being used and about ongoing force being used against already handcuffed individuals. 

3.2.2 (i)  The use of handcuffs

Given that the 14 cases describe incidents having allegedly occurred during attempted removal (and therefore whilst in the custody of escort officers rather than police or prison service custody) it is not known which types of handcuff are being used.[13] 

In 12 of the 14 cases, detainees report being handcuffed.  Eleven of these 12 cases report what would appear to be improper use of handcuffing, including the use of force after being restrained in handcuffs:

§         case 1 claimed she was dragged on her back up the aircraft steps by the handcuffs;

§         case 2 alleged that he was pulled forwards by the handcuffs, then kicked and punched while restrained in handcuffs;

§         case 3 alleged he was pulled by handcuffs and then restrained in such a way that he found it difficult to breathe, while still in handcuffs;

§         case 5 claimed he was punched and pushed down against the ground while in handcuffs;

§         case 6 reported being punched and kicked whilst tightly handcuffed;

§         case 7 alleged he was held in a head lock, pushed and kneed whilst handcuffed;

§         case 8 reported escort officers twisting the handcuffs and pulling his wrists apart whilst handcuffed together;

§         case 10 alleged that an officer forced his arm against the restraint of the handcuff, so that it was painful, and that he was pushed, punched, and slapped while in handcuffs;

§         case 11 reported being kicked in the abdomen, chest, legs and mouth while on the ground with his hands cuffed behind him;

§         case 12 claimed that while in handcuffs her head was banged against a fire extinguisher, causing a laceration; pressure was applied to her jaw and nose, and that the escort officer pulled on, and twisted, the handcuffs;

§         case 13 reported being pulled up by the handcuffs, being sat on, being kneed and being restrained in a neck hold while in handcuffs.

This apparent misuse of handcuffs is medically significant.  The medical complications of handcuff use are discussed in paragraph 4.3 below.[14]

3.2.2 (ii)  Alleged assault inside transport vehicles, after the failed removal

Even after abortion of the removal attempt, several detainees reported being shut inside the van or put into the car, where assault continued.

Examples of this:

§         case 2 alleged he was elbowed and punched in a vehicle;

§         case 5 reported being pushed into a car, where he was punched;

§         case 6 claimed he was shut inside a van and punched;

§         case 8 alleged that most of the violence occurred after the removal attempt inside a van;

§         case 10 alleged he was put into the van where they re-handcuffed him, punched him in the mouth and slapped him in the face;

§         case 11 said that after the removal attempt was abandoned he was handcuffed inside the van, where he was kicked in the chest and abdomen.

3.2.2 (iii) Verbal abuse

Some of the reported verbal abuse by escort officers might be seen to be the result of the difficult circumstances surrounding removal attempts (for example, “shut up” and “shut your mouth”).  More disturbing verbal abuse, however, was reported by six detainees:

§         case 2 said he was called “dirty”;

§         case 3 reported that an escort officer had told surrounding aircraft passengers that they were [removing him from the country] “because he has been selling weapons to children”;

§         case 4 reported being called “you fucking bastard” in addition to other insults related to being black;

§         case 8 reported being verbally abused (but the actual language was not recorded);

§         case 10 claims to have been called a “black bastard”;

§         case 12 alleges she was called “you black bitch”.

Cases 4, 10 and 12, where the verbal abuse would appear to be of a racist nature, are of particular concern.

4  The medical data

Having identified the nature of the force allegedly employed against the 14 individuals, it is appropriate to describe the injuries resulting from its application. The following were described to the examining doctors:

4.1  Injuries reported

Problems complained of immediately following the alleged incidents included:

§         loss of consciousness;

§         swelling of the wrists, painful wrists;

§         numbness of fingers, weakness of the hand;

§         hip pain on weight-bearing;

§         pain in the chest on inspiration;

§         cut to the forehead;

§         painful knee, swollen knee;

§         bruising and scratches;

§         neck and back pain, limited neck movement;

§         pain on swallowing and inability to eat solid food;

§         pain in the jaw and painful bite;

§         tooth coming loose, bleeding from the mouth;

§         pain over the cheek bone;

§         pain in the abdomen;

§         testicular pain;

§         difficulty passing urine;

§         nose bleed.

The Medical Foundation doctors examined all reported injuries, and gave their opinions as to the consistency of the injuries with the reported attributions.  The injuries documented as being supportive of the described mechanism of injury include: [15]

injuries to limbs:

§         cuts over the wrists from handcuffing;

§         nerve injuries from handcuffing;[16]

§         marked tenderness to the base of the thumb with limited range of movement – possible fracture or soft tissue injury;

§         abrasions to the shins from being kicked;

§         knee effusion (fluid in the knee causing swelling) and medial ligament tenderness following forced twisting of the knee.

injuries to head, neck and face:

§         sprained neck from having neck forcibly flexed (head pushed down);

§         bony tenderness over the cheekbone from a punch to the face;

§         abrasion over the cheekbone from being dragged along the ground;

§         lip laceration (splitting) from having head pushed down against the ground;

§         bruising under the jaw and tenderness over the larynx from fingers being pressed to the throat;

§         laceration over the temple from having head banged against hard object.

injuries to torso:

§         tenderness or swelling over rib, sternum (breastbone) or pectorals from pushing, punching or kicking, variously;

§         swelling and tenderness in the scrotal area from having scrotum squeezed;

§         abdominal wall tenderness from a punch to the abdomen.

4.2  Medical attention

Medical attention was required by many of the 14 cases, and ranged from needing painkiller medication to needing hospital assessment (including X-ray).

It is not the focus of this project to comment on the availability or quality of medical attention received by these detainees after the removal attempts.  It is important to note, however, that medical check-ups following the use of control and restraint are not routine,[17] and that the quality of documentation of injuries by detention health care staff in the cases considered was poor.  It is not known whether health care staff in detention facilities are raising concern in cases where injury suggests more than reasonable force.  There are strong professional ethical arguments for doctors to consider such reporting duties as their moral responsibility.[18]

Given the prevalence of handcuff use and injuries among the individuals interviewed for this study, it is appropriate to include here a more detailed analysis of injuries arising through the misuse of handcuffs.

4.3  Handcuff neuropathies

Handcuffing is a known cause of nerve injury at the wrist,[19]^{,[20],[21],[22],[23]} with any of three possible nerves being involved: superficial radial, median and ulnar nerves.  The severity of the injury depends on the nerve affected (which determines the functional limitation, i.e., the disability), and the duration of symptoms, which may resolve over a couple of months or may even persist over several years.  Symptoms can include pain, numbness or abnormal sensations, and weakness of the hand.

What is striking in our data is the frequency of nerve injury: four cases out of the twelve who were handcuffed (33.3%) exhibited symptoms and signs of nerve damage.  While our sample size is too small to allow confident or detailed analysis of this figure, the percentage is nevertheless higher than expected. Although data on the incidence of nerve damage resulting from handcuff use are sparse, and there is no ideal control population, one incidence figure available in the literature is 6.3%.¹⁹

Case 1 had an ulnar nerve injury in the dominant hand; case 3 had a superficial radial injury in the non-dominant hand; case 8 had median nerve damage in one hand and superficial radial nerve injury in the other; and case 10 had superficial radial nerve damage in the non-dominant hand.  We were not able to follow up these cases with further investigation such as electrophysiological studies.

It is hypothesised that continuing to struggle whilst handcuffed, over-tightened handcuffs and pulling on any ligature around the wrist can lead to nerve injury.¹⁹  The cases previously described in paragraph 3.2, where force was reportedly used against the detainee whilst handcuffed (which might cause continued struggling) or where pulling or twisting force was applied to the arms while in the handcuffs, are therefore highly relevant. It is likely that this apparent misuse of handcuffs is contributing to the worryingly high rate of nerve injury.  These injuries – which can be disabling – should be considered preventable in most cases.

5  Discussion

Analysis of the medical data highlights particular areas of concern (pertinent cases are given as an illustration of each point):

·        There appears to be misuse of normally accepted restraint methods, which in some cases would seem to be d