Police Use of Force -
it’s not as
simple as you might think
BY JOANNE CAFFREY POLICE CUSTODY EXPERT WITNESS
JOANNE CAFFREY
POLICE CUSTODY EXPERT WITNESS
Police use of force must never be assessed purely as to whether or not the technique replicated the taught technicalities of the technique. Likewise, there is no list of ‘illegal’ techniques. In this article, I look at some of the practices and principles around use of force with detained persons. I have been engaged for over 500 cases, and the majority of my work is concerning police practices with detained persons from the point of arrest and throughout the police custody detention. I work throughout the UK and have also been engaged for cases in Ireland, Isle of Man and Gibraltar. All policing areas follow comparable practices.
My main areas of work include:
·Deaths/injuries during police custody
·Use of force
·Drink and drug driving procedures
·Ligature deaths in custody units
Officers are taught approved techniques with the aim of those being used if any use of force is justified, but in times of necessity an officer can resort to any reasonable justified tactical option for the purpose of selfdefence – whether trained or not.
I work within Criminal, Coroner/Fatal Accident Investigations, Public Inquiry and Gross Misconduct cases when police use of force is one of the central themes of the person’s custody process. Custody begins from the point of initial contact. I work with prosecution agencies[1] and Police Federation defence teams.
Any use of force by an officer should be the minimum amount of force necessary to accomplish the lawful objective concerned and must be necessary, reasonable and proportionate in the circumstances of that particular incident, as that officer honestly believes them to be. It may ultimately be for a court/tribunal to decide if they believe the officer’s account.
Use of force must never be viewed either solely as a technique or based upon the injury sustained. Perfectly performed techniques may still be unnecessary, disproportionate and unreasonable in the circumstance.
[1] Prosecution Agencies include Professional Standards Departments, CID, IOPC, PONI, Scotland Crown Procurator & Fiscal Services, National Crime Agency. technique may also cause injury. An injury does not mean the technique was wrong or disproportionate, likewise the lack of injury does not mean the technique was necessary and proportionate.
It is always for the officer to justify any use of force based upon perceived threat and risk, alongside the use of the national decision-making model (NDM). Impact factors, warning and danger signs must be considered. For example, the exact same words and behaviour can be demonstrated from an 80+ year old with limited mobility as a 30-year-old 6foot-tall muscular trained ex-soldier. Capability and intent of the subject must always be considered, where possible. Both of these subjects can use the same words “I will kill you” with potentially different impacts on the officer. The 30year-old subject is more likely to be a higher threat than the 80+ year old. However, both in possession of a knife could be considered a comparable threat. The officer’s legitimate policing purpose must always be considered to ensure proportionality remains a central consideration
These factors have a crucial impact on the decision-making process and significantly, the time available to make those decisions and process ‘pros and cons’ for various tactical options. For example, is the officer’s contact with the person one of a Criminal Justice arrest process or is it a safeguarding process for a person needing to be taken to a place of safety for their own protection, or a joint process?
‘Neutralising the threat’ would be forefront of most police officer minds. Police officers are taught to neutralise the threat and officers are often required to make dynamic decisions in minimal time. However, the use of force must never be the ‘go to’ first option when other less injurious tactical options were clearly available; likewise, an officer can make a pre-emptive strike without having to wait for the subject to attack them first.
Officers must be able to account for why they chose a particular course of action, and, in some cases what other options may have been available and why these were not chosen. The National DecisionMaking Model (NDM) and the THRIVE[1] assessment assists with this process.
[1] THRIVE: Threat, Harm, Risk, Investigation, Vulnerabilities, Engagement plan.
A perfectly performed technique may still be unnecessary and unjustified, and/ or not the least amount of force available. An untrained technique may be used which is considered necessary and justified in those circumstances at that time. All relevant information, and use of force response, must be considered in the circumstances. This includes staff actions/inactions from the moment a call for service is received as all staff decision making should be based upon threat, harm, risk, investigative response required, vulnerability and established initial engagement plan, alongside of the National Decision-Making Model (NDM). The control room staff have a significant role to play in this initial stage of the NDM as their passing of information commences the risk assessment process. The control room Inspector (Force Incident Manager) has a designated coordination role to perform for high level threat incidents such as weapons.
Officers need to work effectively as a team with the application of effective conflict management skills and use of the NDM to consider options and contingencies within dynamic and rapidly evolving incidents. Physical techniques for minimising injury is a core primary principle for officers, but it is for the officer to justify what they honestly believed were viable tactical options within the individual circumstances that were presenting, in order to achieve the desired lawful objective(s) with the minimal amount of force, minimising injury, whilst safeguarding the subject, themselves and th bli
Knives. If there is reason to believe that a subject may have a knife or other bladed weapon on them, the officer does not have to wait for the knife to be produced in order to consider this a high threat incident and a potential aggravated resistant subject. This is part of the NDM process and assessment of reasonable tactical options available to them. Significant impact factors can be based upon the environment in which force is considered for use, for example whether it is in a public place or a secure custody unit. Currently the use of force within secure police custody units is a topical debate, and one which I want to focus upon in this article.
Prior to arrival at the secure custody unit, the person should have been searched but this does not provide definitive information that no weapon is concealed. A further search will always be conducted at the unit as standard practice.
The police custody Expectations[1] state that “Any
[1] These factors have a crucial impact on the decision-making process and significantly, the time available to make those decisions and process ‘pros and cons’ for various tactical options. For example, is the officer’s contact with the person one of a Criminal Justice arrest process or is it a safeguarding process for a person needing to be taken to a place of safety for their own protection, or a joint process?
Neutralising the threat’ would be forefront of most police officer minds. Police officers are taught to neutralise the threat and officers are often required to make dynamic decisions in minimal time. However, the use of force must never be the ‘go to’ first option when other less injurious tactical options were clearly available; likewise, an officer can make a pre-emptive strike without having to wait for the subject to attack them first.
Officers must be able to account for why they chose a particular course of action, and, in some cases what other options may have been available and why these were not chosen. The National DecisionMaking Model (NDM) and the THRIVE[1] assessment assists with this process. A perfectly performed technique may still be unnecessary and unjustified, and/ or not the least amount of force available. An untrained technique may be used which is considered necessary and justified in those circumstances at that time. All relevant information, and use of force response, must be considered in the circumstances. This includes staff actions/inactions from the moment a call for service is received as all staff decision making should be based upon threat, harm, risk, investigative response required, vulnerability and established initial engagement plan, alongside of the National Decision-Making Model (NDM). The control room staff have a significant role to play in this initial stage of the NDM as their passing of information commences the risk assessment process.
he control room Inspector (Force Incident Manager) has a designated coordination role to perform for high level threat incidents such as weapons.Officers need to work effectively as a team with the application of effective conflict management skills and use of the NDM to consider options and contingencies within dynamic and rapidly evolving incidents. Physical techniques for minimising injury is a core primary principle for officers, but it is for the officer to justify what they honestly believed were viable tactical options within the individual circumstances that were presenting, in order to achieve the desired lawful objective(s) with the minimal amount of force, minimising injury, whilst safeguarding the subject, themselves and the public.
Knives. If there is reason to believe that a subject may have a knife or other bladed weapon on them, the officer does not have to wait for the knife to be produced in order to consider this a high threat incident and a potential aggravated resistant subject. This is part of the NDM process and assessment of reasonable tactical options available to them. Significant impact factors can be based upon the environment in which force is considered for use, for example whether it is in a public place or a secure custody unit. Currently the use of force within secure police custody units is a topical debate, and one which I want to focus upon in this article.
Prior to arrival at the secure custody unit, the person should have been searched but this does not provide definitive information that no weapon is concealed. A further search will always be conducted at the unit as standard practice.
The police custody Expectations[1] state that “Any force used in custody is lawful, necessary and proportionate, used as a last resort and subject to robust accountability. It is carried out by trained staff using approved techniques.” The indicators for this include:
·“All staff are trained in de-escalation techniques and seek to avoid using force on detainees where possible, especially those who are children or vulnerable adults”
·“no more force and for no longer than is necessary and proportionate”
·“Force is avoided for the removal of clothing from detainees because of risks of self-harm. Other ways of managing these risks are considered and force is only used as a last resort. Use of force within custody suites, and the control and restraint equipment used, is documented within the individual custody record. A separate ‘use of force’ form is submitted by each officer/staff member involved that clearly explains what happened and why force was used”
·“When force is used on detainees, their health needs are considered and they are examined by an appropriately qualified healthcare practitioner if necessary. Where a detainee asks to see a healthcare practitioner this is arranged promptly.”
·“Any use of force or restraint on a child should be a last resort, and take their age into account. When force other than compliant handcuffing is used, children are always examined promptly by an appropriately qualified healthcare practitioner”
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·“Use of force incidents in custody are recorded accurately and reported into the governance structures. There are quality assurance arrangements to show that the force used was lawful and proportionate.”
Each police area custody provision is assessed against this criteria within every 7 years, and most forces within the UK are identified with issues concerning their use of force which include the lack of governance and oversight of use of force being inadequate, the lack of custody record entries justifying the use of force, the lack of use of force submissions, the lack of preserved digital evidence from the custody CCTV and officer body worn video (BWV); and force being used against detainees when other tactical options were readily available and not considered or attempted. College of Policing states: “A custody office is a controlled environment and the overriding objectives should be to avoid using force in custody.” And “Custody officers should manage their environment so that situations where the use of force may be necessary are de-escalated.”
Digital footage retention. Police forces are typically now destroying digital footage from custody CCTV and BWV after 1 month. When I deal with a death in custody the footage is available as it has been immediately seized and preserved. The problem is typically for all other use of force cases.
For example, a complaint is made for excessive use of force which has caused some injury. Officers are served Gross Misconduct papers. The truth of what occurred is on that footage, which in many of my cases has now been destroyed. This makes it equally difficult for a detainee to demonstrate their case and for officers to defend themselves.
One month retention is a significantly short period of time for any PSD or legal team to be aware of, prepared for, and seeking retention of the digital footage. Use of force to remove clothing. I sometimes see ligature cutters being used in cells to remove clothing from detainees considered being at risk of self-harm, but not actively self-harming. Firstly, a ligature cutter is an emergency rescue device for ligature incidents and should not be used in these circumstances. The custody expectations state that: “other ways of managing these risks are considered and force is only used as a last resort” such as level 3 or 4 observations regimes. The flip side of this point is I do sometimes see a detainee has been restrained on the cell floor and had their clothes torn from them on the justification they are a selfharm risk. This being the case they must be afforded a level 3 or 4 observation care plan as they are considered a heightened level of risk through selfharm/suicide. Level 3 and 4 mandate the involvement of the Healthcare Professional (HCP) for a clinical and forensic assessment which will include
the mental health screening assessment and an appropriate adult assessment, as there are reasons to suspect the person is mentally vulnerable. What I often see is the detainee has their clothing torn from them and then they are placed on a level 1 or 2 regime and no HCP assessments, no appropriate adult assessment, and no use of force forms submitted. They then proceed to be interviewed, having been considered fit to be interviewed without an appropriate adult.
Restraints in cells. These should be a rarity and only in extreme cases. If a detainee is such a high level of risk that they require mechanical restraints in a cell, they require level 4 close proximity observation, the HCP involved, and considered arrangements for onward movement to medical facilities. Who is in charge of the use of force? I do hear confusion displayed by custody officers and other staff concerning who decides when restraints come off. It is the responsibility of the custody officer to ensure that any detainee is treated in compliance with PACE, Authorised Professional Practice and the Expectations. The custody officer is to remain impartial from any investigation . The custody officer must open the custody record and they are responsible for the accuracy of that custody record. [1] [2]
[3]
The Expectations require all booking in procedures to be covered by CCTV. The Expectations state: “Detainees’ risks are identified at the earliest opportunity and managed effectively.” The initial risk assessment upon arrival at the custody unit should consider the circumstances of the arrest and any relevant physical/ mental health issues/vulnerabilities that the detainee may have. It is the custody officer’s responsibility to identify what may indicate risk and how to eliminate or mitigate that risk. Use of force is a risk, and the custody officer must manage that use of force risk. Detainees experiencing the effects of alcohol, drugs, a mental health condition or a medical condition are particularly vulnerable to the impact of being restrained. The custody officer can direct the removal of the restraints as everything which occurs to that detainee, in that unit is within the responsibility of the custody officer. Likewise, the escorting officer may remove the handcuffs upon arrival within the custody unit before presenting the detainee to the sergeant. If use of force occurs within a custody unit it may be what is referred to as a ‘cell relocation/ extraction’ technique.
[4] [5] [6]
The cell relocation/extraction technique. This has been a common factor within my deaths in custody cases. Multiple staff using force against a believed violent subject who is carried and/or pinned to the cell floor in prone position. I have personally been the custody sergeant for many such incidents. What should occur is:
·The custody sergeant should not be hands on in this use of force. Their role is to supervise the process, to safeguard the detainee. The College of Policing states: “The custody officer should supervise all cell relocations and avoid becoming physically involved by ensuring sufficient staff are available. Where an immediate relocation is necessary, it may be impractical to wait for additional staff. The supervisor is accountable for the way in which the incident is managed, but the safety officer and all other officers and staff involved have a responsibility to be aware of any signs of distress and trauma.”
·In a pre-planned relocation using a specialist team, such as TSG, the team supervisor is responsible for the tactics of the procedure and team management, but the custody officer retains responsibility for the welfare of the detainee during the use of force.
·Taking into consideration the size of an average cell the team would normally be made up of three or four officers, with the custody officer responsible for supervising and the cell door. Each member of the team has specific tasks which they should be fully aware of prior to undertaking their role if time permits.
·The officer closest to the head of the detainee is the safety officer. Commonly referred to as number 1 or head officer. They must conduct regular vital signs checks of the detainee and coordinate the officers involved.
·This should be a fast-moving use of force to minimise prolonged restraint, and to get the officers out of the cell.
·Communication between the officers and with the detainee is crucial.
·The safety officer and custody officer must observe for any risk factors such as pressure being placed upon the torso of the detainee, signs or sounds of respiratory distress or other medical emergency.
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·If time permits the justification must be recorded on the custody record and officers involved must be informed of the risks and movement plan. Where it is necessary for officers to restrain potentially violent or disturbed detainees, it is important that the officers are properly briefed on any known condition, the warning signs and risk factors for the subject. It is also necessary to have prior knowledge of any relevant medical conditions such as asthma or heart problems, so that detainees can be effectively monitored throughout. The assistance from the HCP may be required for clinical advice.
Breathing must be assessed against normal/not normal breathing – and not purely upon whether or not there are sounds of breathing.
·Once all officers are out of the cell, they must not all walk away without being satisfied that the detainee is safe and well. An officer should be left at the cell door monitoring the detainee to satisfy themselves that the 4Rs are achieved. The 4Rs are: (1) Rousability, (2) Respond verbally, (3) Respond physically and (4) Remember to look for the presence of specified illness and injury. Where a detainee fails to meet the 4Rs an appropriate HCP or ambulance must be called.
·Consider use of the HCP for forensic and clinical assessments.
There are many factors involved in police use of force, and every incident must be assessed on its own individual circumstances. I provide expert witness services and training regarding police custody practices and principles.
