**I was inspired to write this having attended a panel discussion on tasers at The Law Society, London. I will reference comments made by the panel as “LS” throughout, here is a link to a podcast of the event so you can check out their comments, as well as comments and questions from the audience, for yourselves**
Tasers find themselves at the centre of scandals for misuse in the UK on a semi-regular basis; recently for the death of a man who was doused in flammable liquid at the time he was tasered, and suffered fatal burns as a result. On a different note, last year a taser was found at the scene where two Manchester police were killed by Dale Cregan, one policewoman seemingly attempted to incapacitate Cregan before he used heavy weaponry against them. It seems an apt moment to reexamine tasers, their use, their impact, and whether they breach fundamental rights.
What is a Taser?
Taser, or Thomas A. Swift’s Electric Rifle, was first introduced in the UK in 2003, initially as a one-year trial by specialist firearms officers in five police forces, then firearms officers nationwide, and now – non-firearms officers. Tasers are primarily handgun sized weapons that, when fired, release two darts up to 21ft away. These remain attached to the handset via electric cables and on impact the darts release a 50,000 volt charge for five seconds. This temporarily confuses the suspect’s nervous system and cause their muscles to contract uncontrollably. During the hunt for Raoul Moat a larger taser, which resembles a shotgun, was used. This shoots shells with barbs which latch on to the skin before releasing their charge (which lasts up to 20 seconds), and has a range of 100ft. The use of this ‘super-taser’ caused a huge scandal as the weapon was supplied directly to Northumbria police without going through Home Office channels of weapons testing and approval, and in despite of the fact that serious concerns about issues such as accuracy had been raised. Ultimately this led to Pro-Tect Systems (the only legal supplier of tasers in the UK) losing its licence, and to its director, Peter Boatman, committing suicide.
UN Basic Principles
UN member states are obligated, as part of the UN Basic Principles on Use of Force and Firearms by Law Enforcement Officials, to develop ‘non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons’. Additionally, the provisions state that:
‘the development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled’.
I’ll refer back to this guidance further on, but for now something does strike me: the use of the term ‘non-lethal’, as elsewhere (even within police literature) tasers are classed as ‘less lethal’. This small change on paper has the potential to result in a huge change in attitudes, as well as permissible weaponry and conduct. ACPO states:
‘As no technology can be guaranteed to be non-lethal, ACPO, in conjunction with the Home Office, has adopted the term ‘less lethal’ to denote weapons and munitions designed to be used without a substantial risk of serious or permanent injury or death to the subject on whom they are applied. While the outcome may, on occasions, be lethal, this outcome is less likely than if conventional firearms are used.’
From the outset the introduction of this electric discharge weapon, or ‘stun gun’, has been controversial, with critics, such as Mike Kellett, CPT’s most used expert and an ex-police officer, stating its introduction bypassed the thorough public debate that should occur with the introduction of any new weaponry (LS). Critics also draw attention to the lack of extensive testing into its negative health implications, although proponents of taser, such as Simon Chesterman, Deputy Chief Constable and lead for armed policing in the UK, state that the Home Office gathered substantial evidence from abroad before taser’s introduction (LS).
Peer reviewed articles investigating the health implications of taser are thin on the ground, however, one published last year, by the American Heart Association, concluded that taser can cause cardiac arrest, and death. Additionally, as far back as 2001 concerns were raised about the combination of taser and CS gas (a chemical used to incapacitate) were raised, as those who’ve been in contact with the gas risk being set on fire if tasered.
From examples of taser use it appears that while generally non-lethal when used on of people not of ‘small stature’ and in good health, they can lead to heart failure in those who are of small stature, or by exacerbating pre-existing health problems or during drug use – and while police guidance on taser use prohibits use against small people it doesn’t mention physical or mental illness, or medication. There is also the risk of secondary injury, either from falling or, as previously mentioned, from flammable materials at the scene. It worries me that while taser-carrying officers can determine the size of a suspect, and make estimations on their health from their appearance and apparent age, they cannot know from sight alone of any underlying health problems, such as heart problems, which may increase the risk of taser use. Saying that, with Merseyside police recently tasering a 12 year old girl, a 61 year old blind man being tasered in 2012, and an 82 year old man being tasered by a Met police officer a couple of years ago, I’d say the situation is far worse than an inability to judge the health of suspects.
Some are also concerned that research into the health implications of taser come to different conclusions depending on who was funding the research (i.e. Taser manufacturers may carry out research, LS). Research should inform the guidance for use of any new weapon used by law enforcement personnel, but instead the UK is ‘playing catch-up’ ten years after taser’s introduction.
Guidance for use in the UK
In the UK currently around 10% of the police force are trained to carry/administer tasers (LS). The guidance for the use of tasers in the UK has attracted significant criticism for being extremely vague as to what situations permit their use (LS). In fact there was a split within UK guidance, with Northern Ireland carrying out a thorough investigation of taser’s compatibility with human rights legislation when considering its introduction to Northern Ireland in 2007. The PSNI even stated that:
‘We are also concerned that the current ACPO Policy and Guidance on the use of Taser may not be sufficiently clear.. [and] .. may not meet the requirement under Article 2 ECHR’.
Primarily the debate centres around the use of ‘violence or threat of violence‘ in England/Scotland/Wales instead of the more restrictive ‘violence that poses a threat to life or of serious injury‘ which is used in Northern Ireland. I appreciate the extra caution Northern Ireland took in their implementation of tasers, and in their recognition of tasers as ‘potentially lethal’ and their focus on the provisions under Article 2 which state that no more force should be used than ‘absolutely necessary’.
ACPO have redeveloped their guidance this year (starting p. 266 but primarily p. 275) and seem to have removed even the word ‘violence’. Chesterman argues that this more exact language is unnecessary as if police personnel are following other guidance, such as Section 3 of the Criminal Law Act 1967, they won’t misuse tasers. Sophie Khan, a solicitor advocate who has worked on a lot of cases, counters this by arguing that the use of the weaker language will always weaken the guidance (LS).
The training officers are given before being permitted to carry tasers is also of concern; this is currently a three day training course with an annual one day refresher. Kellett feels that the principles governing the use of tasers should be similar to firearms, and this should include training and psychological testing of the officers who carry them (LS). Given the fact that tasers are classed as a firearm (if anyone is found illegally possessing a taser other than authorised police personnel they can face up to ten years in prison and an unlimited fine) it seems completely inappropriate that the training for their use is not similar to that of other firearms, the process of determining who should be permitted to carry tasers should also include psychological testing of officers, as it does for other firearms. Khan argues that different officers may even need different training dependent on their experience of conflict situations prior to carrying a taser, and that for most police currently carrying a taser their training may not meet international human rights standards. This argument is part of a judicial review going before the High Court, where the lawfulness of the Met’s decision to roll-out huge numbers of tasers across London without a public consolation is being called into question – so we’ll wait to see what the court makes of this aspect of current practice and legislation!
The guidance means tasers have the potential to be used in a wide range of situations, the police may find themselves relying on this piece of technology where they would have normally used other methods, such as negotiation. The drawing and pointing of a taser at someone has a huge deterrent effect, which could be considered a positive thing, but it may also mean that police draw their tasers much quicker, and in situations where their use is unwarranted, and as Oliver Sprague, Amnesty International’s UK Arms Programme Director, points out, this turns policing away from consent and towards compliance.
Misuse of Taser
As with any firearm or weapon there is a potential for misuse and abuse. In the case of taser, there is a potential for its use as a punitive or coercive tool. Tasers have also been known to have been used on individuals for non-compliance, where the individual poses no serious threat. This goes against provisions in the UN Basic Principles noted earlier, which stipulate the use of force only when absolutely necessary, when non-violent methods are not successful, in proportion to the situation and only in self-defence or in the defence of others. It also raises concerns that tasers could be used on individuals who do not comply as they simply do not understand the instructions given to them, those with mental health problems for example. Shockingly Khan reports that in Kent 50% taser incidents involve someone with mental health problems.
In the UK the number of incidents which have resulted in a suspect being tasered has been rising dramatically. In 2003 (where they were only being used by ten police forces) the stun guns were drawn 60 times and fired 13 times, taking 2003-2007 into consideration as a whole tasers were used over 800 times. Yes, this is partly as a result of increased personnel carrying the weapon but it paints a worrying picture, and one that worsens with each year: in the year ending March 2011 there were 1,371 taser incidents in a single year.
The USA provides an example of the overuse of tasers and other electrical discharge weapons: there is a taser incident almost every day and Amnesty International reported last years that over 500 people have died in the USA as a result of taser incidents (in the UK 4 people have died after a taser incidents, but inquests have ruled out the possibility of taser as a contributing factor, LS). Additionally, in the USA members of the public can buy themselves tasers, which of course opens the doors for widespread abuse and harm, both intentional and unintentional. But before we criticise American practice too much we should acknowledge the fact that in the USA placing the taser directly on the body of an individual and firing is not permissible, while in the UK it is permissible in some situations as a last resort (LS).
Human Rights Violations
There is a growing school of thought amongst critics of tasers that their use may breach international human rights standards. Primarily these arguments have focused on Article 3: the prohibition on torture and inhuman or degrading treatment or punishment. Some feel that taser use violates this fundamental right, along with the principles set out in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of which the UK is a signatory. For example, Alastair Logan, a retired solicitor who is now part of The Law Society’s Human Rights Committee, argues that any discussion on ‘safe usage’ of tasers is essentially a debate on ‘how much torture is OK’ (LS). In 2007 the UN Committee Against Torture found that tasers cause so much pain to the victim that it constitutes a form of torture. Chesterman counters these claims by saying that taser use could breach Article 3 if used in a punitive or coercive manner, but not if they are used within lawful ‘use of force’ provisions (LS).
In contrast to Logan, Sprague argues that the police do have a right to use force (tasers) in some cases and themselves have Article 2 (right to life) rights (LS). However, he notes the potential for abuse, and feels tasers should only be used in extremely controlled circumstances (risk to life or of serious injury) and by highly trained professionals. His, and Amnesty International’s, concerns primarily rest on the guidance and training of those police officers who carry tasers.
Currently Khan, is representing someone who is claiming an Article 2 violation, as he suffered a cardiac arrest after being tasered. This may be the first case of its kind and I will be watching with interest. In addition to Article 2 & 3 challenges, Article 8 is also cited in cases challenging taser use; in part this right protects the right to bodily integrity (LS). As this is a qualified right the burden is on the state to justify the necessity of their actions.
The UN Committee Against Torture has this year been quite damning on UK practices (and not just restricted to taser use). They state that law enforcement officials must ensure that they only use taser when there is a genuine threat to life or serious injury.
Initially all incidents where a taser was fired were referred to the IPCC, now this only occurs when there is a ‘complaint, death or serious injury’. Many of these cases do not go to trial as the claimant decides to settle, this can give the public a false idea of the situation in the UK as we are not aware of the numbers of taser incidents, and/or those which have resulted in complaints. Worldwide there appears to be an underreporting of taser incidents, and of including taser as a cause of death. Sprague argues that this lack of investigation has a negative impact on development of safe policing strategies as investigations lead to reform and restrictions, and he warns that we may end up doing nothing until something terribly wrong happens – like in Canada where a man died after being repeatedly tasered; the incident led to increased restrictions of usage in Canada (LS).
It would be pretty easy to argue that a man being tasered while doused in flammable liquid and then burning to death is an example of something terribly wrong happening. Use of taser in the UK appears to be heading further and further away from the principles guiding use of force by law enforcement officials. And Chesterman’s reassurances that if a taser officer is found to have used their taser on someone illegitimately they won’t be permitted to handle a taser again, but they’ll continue working as a police officer, are hardly reassuring enough (LS).
The IPCC has passed the case of the blind man who was tasered on to the Crown Prosecution Service, the victim is claiming assault, false imprisonment and a breach of his rights. The IPCC is also currently investigating the death of the man who was tasered while known to be doused in flammable liquid. And while it may seem then that the IPCC is taking these incidents seriously, the case two years ago of a man being tasered five times while having an epileptic seizure at a gym (despite police being told by staff he was indeed having a seizure). The case was referred to the IPCC who cleared the police of any wrongdoing, even stating that a policeman overheard to say ‘if he is getting aggressive, I am sure 50,000 volts will stand him up’ was just ‘inappropriate’ but they were sure the police in question had judged the situation in a level-headed, tactical manner. The consensus seems to be that if it isn’t in the guidelines (e.g. ‘don’t fire a taser at someone having a seizure’) then it’s permissible.
A new report being published soon will apparently show greater taser usage over the past couple of years, and police/governmental spokespersons are keen to reassure (Chesterman, LS) that this is only due to an increased number of police carrying tasers rather than an increase in misuse. However, I’d say the fact that more police are carrying tasers is a cause for concern in itself. Furthermore, the Home Office isn’t releasing satisfactory qualitative data on taser incidents, so we are unable to judge whether these incidents warranted the use of taser or were in fact abusive actions on the part of the police.
There is of course an argument for the use of less/non-lethal methods of policing, although statistics from abroad worryingly show that police shootings do not fall after taser introduction. It is currently unclear whether this particular form of less lethal weapon breaches human rights, and until the European Court of Human Rights, or our domestic courts, offer definitive guidance on the issue it will be difficult to make the case that tasers do indeed breach fundamental human rights.
The question at the moment is not whether the use of taser breaches human rights in general, but whether current UK practice breaches international standards. The longer current trends (i.e. greater numbers of insufficiently trained police using tasers in situations not meeting criteria recommended by the Committee Against Torture) continue the more likely it seems that this will be the case, and with news of a young man suffering a ‘medical episode’ and dying after being tasered in Manchester yesterday, and some police forces considering more ‘pro-active’ taser use in riot situations, I’d say that time is approaching fast.