by Dr. Róisín Mulgrew
Lecturer in Criminology and Criminal Justice, University of Galway and Irish Centre for Human Rights
Instruments of Restraints
Instruments of restraint are external mechanical devices that are designed to fully or partially restrict or immobilise movement. They can be used for security, order or protective purposes or to prevent escape.
Low-technology mechanical restraints can include ankle cuffs, handcuffs, waistbands, fabric restraints, restraint jackets, or body restraints.[1]
The use of instruments of restraint can, however, create a risk of ill-treatment through resulting injury, pain, or humiliation.
During the recent revision of the European Prison Rules (EPR), Rule 68 was revised to reflect contemporary standards on the use of restraints, including those developed by the European Committee for the Prevention of Torture (CPT). The 2020 European Prison Rules contain a number of important statements of principle, and prohibitions, in relation to the use of restraints within prisons. Similar provisions can be found in the UN Nelson Mandela Rules (NMR) revised in 2015.
Principles
The use of instruments of restraint is governed by principles of legality, necessity, and proportionality. Fundamentally, instruments of restraint should only be used if and when;
- authorised by law,
- no lesser form of control would be effective to address the risk posed by a prisoner,
- it represents the least intrusive means (in light of the level and nature of the risk posed).[2]
Contemporary standards also permit prison directors to order their use in instances where other methods of control have failed to protect a prisoner from self-injury, prevent injury to others, or serious damage to property.
The director is obliged, in such circumstances, to immediately inform the medical practitioner and report the use of restraints to a higher prison authority.[3]
In all circumstances, instruments of restraint should only be used for the period required. Accordingly, they should be removed as soon as the risk is no longer present.[4] Further, they should typically be removed when a prisoner appears before a judicial or administrative authority.[5]
___________________
[1] APT and PRI, Instruments of Restraint: Addressing risk factors to prevent torture and ill-treatment, 2nd ed at 1.
[2] Rule 68.1, 68.2, 68.4a EPR; Rules 47(2)(a) 48(1) NMR.
[3] Rule 68.4b EPR; Rule 47(2)(b) NMR.
[4] Rule 68.3 EPR.
[5] Rule 68.4a EPR; Rule 47(2)(a) NMR.
Prohibitions
It is clear, however, that the use of certain types of instruments of restraint and the use of instruments of restraint for some categories of prisoners and in particular situations is completely forbidden.
Both the European Prison Rules and the Nelson Mandela Rules state categorically that the use of chains, irons and instruments of restraint that are inherently degrading (and painful) is prohibited.[1]
Penal Reform International has highlighted that certain forms of restraints should be strictly avoided on the grounds that they are designed to cause pain or humiliation (such as weighted leg cuffs, leg irons, bar fetters, finger-cuffs, thumbscrews) and warn that any method that obstructs airways or forces detained persons into positions that create a risk of asphyxia can constitute torture or ill-treatment.[2]
The CPT has drawn attention to the inherently degrading nature of body-worn electro-shock devices and the high scope for misuse associated with them.[3]
Further, instruments of restraint should never be used on female prisoners during labour, childbirth or immediately after childbirth.[4] Evidence shows that restraining pregnant prisoners may have serious health and safety consequences for both the mother and the foetus. The CPT has labelled the use of restraints on pregnant women during gynaecological examinations or during childbirth as ‘completely unacceptable’ and constitutes treatment that could ‘certainly be qualified as inhuman and degrading’.[5]
Finally, instruments of restraint should never be used as a punishment or sanction for disciplinary offences.[6]
Recording the use of restraints
Every use of instruments of restraint should be properly recorded in a register, and details of the nature of restraints used and the length of time they were used for should be added to the individual prisoner’s file.[7]
Fixed Restraints
The manner in which restraints can be used must be specified within domestic law.[8] This is a particularly important consideration in relation to fixed restraints, as their use in combination with sedation and force can be disproportionate and unlawful and, ultimately, have fatal consequences.[9]
___________________
[1] Rule 68.6 EPR; Rule 47.1 NMR.
[2] PRI and COE, Guidance document on the European Prison Rules, 2023 at 137.
[3] CPT, 20th General Report on the CPT activities covering the period 1 August 2009 – 31 July 2010, 26 October 2010, 3.
[4] Rule 68.7 EPR; Rule 48(2) NMR; see also Rule 24 Bangkok Rules and the Report of the Special Rapporteur on torture, A/HRC/31/57, 5 January 2016, paras. 21, 70(h).
[5] CPT, 10th General Report on the CPT activities covering the period 1 January 31 December 1999, CPT/Inf (2000) 13, 18 August 200, para. 27.
[6] Rule 60.5 EPR; Rule 43(2) NMR.
[7] Rules 68.8, 16A.2f EPR.
[8] Rule 68.5 EPR.
[9] See P. Tomczak and R. Mulgrew, ‘Making prisoner deaths visible: Towards a new epistemological approach’ (2023) Incarceration 1-21 at 12.
The CPT has noted that using neck-holds to restrain prisoners can pose a risk of positional asphyxia, particularly for prisoners with serious cardiac histories.[1] The CPT has also criticised the use of fixation for prolonged periods, stating that the use of fixation for over 35 hours can have no medical justification.[2] The CPT has also warned about the risk associated with the use of restraints on persons who have been administered sedatives and neuroleptics (which impair breathing and decrease heart rates) and issued strong calls for the direct, continuous monitoring of any fixated individual by healthcare staff. [3]
PRI recently highlighted the strong criticisms from both the CPT and the European Union in relation to the use of cage beds and net beds, and the UN Committee against Torture’s call to prohibit the use of restraint chairs, shackle boards and shackle beds.[4]
Training
The Nelson Mandela Rules emphasise the importance of providing training in the use of control techniques that reduce the need to resort to instruments of restraint by focusing on means to deal with violent offenders that use preventive and defusing techniques (such as mediation and negotiation).[5]
___________________
[1] Report to the Government of the Netherlands on the visit to the Netherlands by the CPT (10 to 21 October 2011) CPT/Inf (2012) 21, para. 106.
[2] Report to the Government of Poland on the visit to Poland by the CPT (5 to 17 June 2013) CPT/Inf (2014) 21, para. 90.
[3] Report to the Spanish Government on the visit to Spain by the CPT (19 to 22 June 2013) CPT/Inf (2013) 8, paras. 16-17.
[4] PRI and COE, Guidance document on the European Prison Rules, 2023 at 137.
[5] Rules 49 and 76(1)(c) NMR.