Euro Rights Blog: Taser Use and the Principle of Legality

Richard A. Edwards. ILHRU. UWE Bristol.

Last week I attended a debate organised by the Law Society on whether the use of tasers infringes human rights. During the debate it became clear that there had been a change in the way that taser use was regulated. Many of us were under the impression that taser use was regulated, in part, by the Association of Chief Police Officers (ACPO) guidelines. But this, as it turned out, was not the case.

The use of tasers by the police is regulated by a combination of the common law, section 3 Criminal Law Act 1967, section 117 Police and Criminal Evidence Act 1984, Human Rights Act 1998 and guidance. Historically this guidance has been issued by ACPO. The ACPO guidance detailed the circumstances in which a taser might be used: ‘If justifiable and necessary it could be selected and used by trained officers facing violence or threats of violence of such severity that they will need to use force to protect the public, themselves and/or the subject(s).’ (Extended operational Deployment of Taser for Specially Trained Units, para 3.2) The guidance also cautioned that:

‘Use of the Taser is one of a number of tactical options available to an officer who is faced with violence or the threat of violence. Its purpose is to temporarily incapacitate an individual in order to control and neutralise the threat that they pose. It is not to be used to inflict severe pain or suffering on another in the performance or purported performance of official duties … the duration of the initial discharge and any subsequent discharge must be proportionate, lawful, appropriate, necessary and non-discriminate, in all the circumstances.’ (Operational Guidance, paras 10.1-2).

However, the ACPO guidance was replaced last year by the College of Policing’s Operational Guidance on Conducted Energy Devices (Taser) – Module 10 of the Authorised Professional Practice (APP). But unlike the old ACPO guidance the new operational guidance has not been published. The new guidance seems to be available only from POLKA, a police only intranet. From time to time there are, certainly, good reasons for not publishing operational guidance. Yet given that the previous ACPO guidance was long in the public domain this is perplexing to say the least. Of course, the non-publication of the guidance may have consequences for lawfulness of taser use.

There can be no doubt that the use of tasers could engage Articles 2, 3 and 8 of the ECHR. A taser is generally regarded as a near-lethal weapon, and thus Article 2 (the right to life) is engaged. Similarly, Article 3 ECHR applies because inappropriate use may be degrading/inhuman treatment or even in extreme cases torture. And finally Article 8 may apply given the potential interference with the right to physical and psychological integrity.

For any interference with Convention rights to be lawful it must comply with the principle of legality. Thus, for example, Article 2 requires for the right ‘to be protected by law’ that there be a legal framework in place that must not only define the limited circumstances in which police officers may use force and firearms, but must also contain clear and precise instructions as to when force and weapons may be used (Makaratzis v Greece [2004] ECHR 50385/99, para 57). This regulation is essential because as the European court noted:

‘unregulated and arbitrary action by State officials is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, police operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force’ (Şimşek v. Turkey [2005] ECHR 35072/97, para 109)

Similar considerations apply under Article 3 (Z v UK [2001] ECHR 29392/95, para 74) and Article 8 (Limits on the right must be ‘in accordance with the law’ Article 8(2)).

In this context, there are two important aspects of the principle of legality that are relevant. First the requirement that a legal regulation be accessible. For example, in Khan v UK [2000] ECHR 35394/97 (para, 27) police use of covert listening devices under the authority of Home Office Guidelines, that were neither legally binding nor publicly accessible, was held to be incompatible with the principle of legality in Article 8(2) and thus unlawful. Similarly, in Hafsteinsdottir v Iceland [2004] ECHR 40905/98 the arrest of the applicant for drunk and disorderly conduct was itself not specifically regulated by law. Icelandic law contained some relevant statutory provision but there was disagreement as to whether this was applicable. The matter was, however, more directly regulated by administrative guidelines. The European Court concluded that there was no specific law governing the applicant’s arrest: ‘the scope and the manner of exercise of the police’s discretion were governed by administrative practice alone and, in the absence of precise statutory provisions or case law, lacked the necessary regulatory framework.’ (para, 56) The police guidelines had not been published at the material time.

With respect to the use of tasers the situation would at first blush seem to be the reverse of Hafsteinsdottir; there is general legal provision allowing 'reasonable force’ but no subject specific guidelines. Is this enough to satisfy the principle of legality? To accept that it is would be to ignore the important fact that the taser guidelines are an essential part of the regulatory framework for their use. Indeed, it might be argued that the law here is otherwise so general that the specific regulation is effectively carried out by the guidelines. Thus in the absence of published guidelines we are not sure exactly how the use of these weapons is specifically regulated. This non-publication is incompatible with the principle of legality.

The second relevant aspect of the principle of legality is the requirement that the limits of official discretion are indicated with reasonable clarity. This prevents arbitrary interferences with Convention rights. (Gross v Switzerland [2013] ECHR 67810/10). Thus in Gillan v UK [2010] ECHR 4158/05 the open ended discretion to stop and search under the Terrorism Act was not attended by appropriate safeguards that guided the use of the power. In the context of taser use, the law might grant an officer a discretion to use reasonable force, but we have no idea what this force might be because the guidance has not been published. When and where can police officers properly resort to taser use? Are the criteria for taser use the same as under the ACPO guidelines? The publication is essential not only if we want to hold officers to account, but also to ensure that officers are properly guided on weapon use as Article 2, for example, requires. This is all the more so given the potential for tasers to interfere with a range of Convention rights, including two strong rights - Articles 2 and 3. Indeed, given that Articles 2 and 3 are engaged by taser use a greater degree of precision is necessary in the regulatory framework than for unarmed arrests. (Hasan and Chaush v Bulgaria [2000] ECHR 30985/96, para 84.)

It may well be that there are good reasons for the non-publication of the guidance. But given the central role of guidance in regulating the use of tasers its non-publication inevitably raises questions of compatibility with the principle of legality.