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Hooding the Horrible? Spit Hoods, Reasonable Force and Human Rights

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About The Author

Vistra Greenaway-Harvey (Regular Writer)

Vistra is a law graduate from Queen Mary University of London with a particular interest in civil liberties. Currently is studying for the combined LLM BPTC at BPP University on a part time basis and is working for a local authority. Outside the law, she enjoys costume design and eating London’s finest food. 

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©Ivan Bandura

Forcibly covering people’s faces has been linked to deaths in custody and spit hoods have been used far too willingly on children and other vulnerable people.

Rosalind Comyn

On 7 February 2019, Cressida Dick, the Metropolitan Police Commissioner, announced that spit hoods would be issued to frontline police officers. This controversial decision has been scrutinised on human rights grounds and is invariably weakened by Ms Dick’s argument six months ago that the hoods are more likely to cause harm to officers than to protect them.

This article will consider the legal framework which underpins the use of spit hoods and whether their use in frontline policing has any impact upon this framework. It will also assess the compatibility of spit hoods with human rights obligations under Article 3 of the European Convention on Human Rights (ECHR).

An Introduction to Spit Hoods

Spit hoods, or guards, are meshed sacks with a reinforced section around the mouth. They are placed over the heads of people that have spat, or threatened to spit, at a police officer and fastened at the neck with the aim of preventing further spitting attacks. An image of a spit hood can be viewed here.

Spitting poses a palpable threat to police officers. These attacks have wide ranging psychological and physical ramifications. Firstly, officers must overcome the psychological impact of being spat on. It has been argued that spitting is a particularly unpleasant assault in that it is humiliating and degrading, particularly if done in the face. Where officers are believed to be at risk of infection, the trauma of this occasion can span several months: in cases where the person that spat refuses to give a blood sample, it can take time to find out whether the officer has contracted a disease as a result of the spitting. Secondly, physiological effects are felt where officers are required to take anti-viral drugs to prevent infection.

Although the risks of infection are deemed to be lower than believed, the hoods are now widely used in Britain.  Approximately 37 out of 43 police forces across the UK use the restraints in custody suites.  It may seem, therefore, that the introduction of the hoods into frontline policing was inevitable, particularly in London where, in 2018, 92% of Metropolitan Police Officers surveyed were in favour of spit hoods being used.

Consequently, the political impetus for their introduction is clear. But what is the legal basis? And is there a fundamental difference between using the hoods ‘on the beat’ (when officers are on active duty outside of the police station) as opposed to in custody suites inside the police station?

The Law

Using a spit hood on a suspect involves the use of force. Section 3 of the Criminal Law Act 1967 (CLA) authorises a person to use:

Such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders…

Similarly, Section 117 of the Police and Criminal Evidence Act 1984 (PACE) enables constables to use reasonable force, if necessary, in the exercise of any power conferred to them in the Act, provided that power does not require the consent of any other officer.

How the Spit Hoods are Used

The British Transport Police’s guidance on the use of spit hoods instructs officers that they are to be used only in “exceptional” circumstances and for only as long as is necessary. Prior to the application of the hoods, the officers must issue a warning and work in collaboration to handcuff the suspect at the rear to prevent self-removal of the hood. Officers should remove all eyewear, jewellery and headgear that prevent the quick removal of the hood in an emergency. The hood is then placed over the subject’s head and fastened at the neck. The hoods must only be worn once for each subject.

There are therefore at least two methods of restraints utilised when applying the spit hoods: handcuffs, and the hoods themselves. The logic behind this use of force is clear; subjects would be able to remove the hoods if handcuffs were not applied. Yet, the reasonableness of spit hoods as a method of restraint is far more taboo.  

In furtherance of his argument that spit hoods are a reasonable and necessary form of Personal Protective Equipment (PPE), John Apter, National Chair of the Police Federation, stated that the alternative to spit hoods is more forceful:

[P]rior to spit guards being issued, a person who was biting or spitting at officers would either be put on the ground or restrained with their head forced down.

As a result, Apter is of the view that spit hoods are an effective and less restrictive method of preventing biting and spitting.

Whilst this may be the case, the test set out in the CLA and PACE is not whether the methods used are less restrictive than previous methods. The test is whether the force used is reasonable or necessary in all the circumstances. Thus, in the abstract, it would be difficult to state that the use of spit hoods would be deemed reasonable force or otherwise.

There are, however, risks involved with the hoods and the way in which they are operated. European Union Regulation 2019/125 makes the point that:

As such a hood covers the mouth and often also the nose, it presents an inherent risk of asphyxiation. If it is combined with restraints, such as handcuffs, there is also a risk of neck injury. Exports of spit hoods should therefore be controlled.

Although the mesh is breathable, this risk is increased if the mesh becomes blocked with spit, blood or other matter. To mitigate against these risks, Regulation 2019/125 argues that '[e]xports of spit hoods should … be controlled'.

On a regional level, Police Services that currently use the hoods require officers to supervise subjects wearing hoods at all times. Furthermore, under no circumstances are officers authorised to use the restraints on suspects that are vomiting, having difficulty breathing or bleeding profusely from the nose or mouth.

These instructions are important safeguards; however, it has been argued that they are limited by the nature and operation of the restraint. For instance, the practice of handcuffing subjects prior to applying the spit hoods means the user is unable to remove the covering in an emergency. The dual restraints also limit their ability to alert officers to any injuries, and where subjects do protest their concerns are only effective if they are listened to. As shown below, these concerns can lead to disastrous results.

The Case of Terry Smith

On 12 November 2013, Mr Terry Smith was detained under Section 136 of the Mental Health Act 1983. Multiple restraints were used, including handcuffs, leg restraints and a spit hood. He continued to be restrained by five to six officers at Staines Police Station, where he repeatedly shouted: ‘I can’t breathe.’ A 2018 Inquest found no police officers lifted the spit hood to check his breathing. He was moved into a police van where he stopped breathing and was pronounced dead at hospital. The inquest held that prolonged and excessive use of spit hoods, and insufficient training on Excited Delirium, a medical condition associated with agitation and sudden death, contributed to Mr Smith’s death.

The clear conclusion to be drawn from the Terry Smith inquest is that excessive use of a spit hood can be lethal. Effective training and adherence to procedure is vital to protect suspects. This is particularly the case where suspects are restrained outside of a custody suite since they will be in a far less controlled environment. The risks that supervision and other safeguards will diminish are therefore high. Furthermore, the arresting officer will have to manage the competing interests of the public and the suspect – who may physically resist the restraint – whilst safely applying the hoods.

Whilst public perception is plainly not to be put before the interests of protecting officers, it holds an important measure of the humanity of the state’s actions. In particular, there is some clear public outrage that the hoods are intrinsically barbaric, inhuman and degrading. As the family of Terry Smith stated, they are: ‘beyond anything we expect to see in a civilised society.’ Their reminiscence to the hoods utilised on detainees at Guantanamo Bay further this proposition.

It is apparent from the wording of Regulation 2019/125 that there is a relationship between spit hoods and Article 3 of the European Convention on Human Rights (ECHR): the prohibition of torture. This was briefly explored in R. (on the application of FI) v Secretary of State for the Home Department [2013]: in assessing whether the framework for restraining detainees undergoing forcible removal from the UK in an aircraft, the administrative court held it was impossible to determine whether the framework was not compliant with Article 3 ECHR.

Conclusion

In a similar vein to assessments on the reasonableness of the force applied, the actual application of the framework guiding the use of restraints is the determinative factor in assessing whether rights are contravened. However, it is important not to debase those that spit to warrant harsher punishment. There is a clear narrative that those that spit are “vile,” “abhorrent” and “disgusting.” This rhetoric cannot be maintained in the face of clear evidence that vulnerable members of society are most likely to engage in this behaviour. As reported in the Independent:

[S]pit hoods were used 2,600 times across England and Wales in the year to March 2018, including on more than 1,000 people believed to have mental health problems, 1,600 drunk suspects and 1,200 under the influence of drugs.

These impairments may prevent these groups from understanding the dangers of their behaviour and the associated risks. They may also become increasingly distressed from the application of the hoods.

Controversially, spit hoods have also been used in the detention of minors. In the case of Child H, the combination of disability and age led the Independent Police Complaints Commissioner to criticise Sussex police over its use of a spit hood on an autistic 11-year-old girl that had run away from home. Despite this criticism, the hoods may still be used on children: at least 68 children in England were hooded in the first nine months of 2017. As more forces across the UK are deployed with the equipment this figure is likely to rise.

The fundamental rights and freedoms of these vulnerable groups cannot be subordinated in the interests of protecting the police. Rather, a balance must be struck between the desire to protect police officers from being spat at and ensuring that suspects are treated humanely. Despite her earlier concerns, it appears Ms Dick is determined to equip frontline police in London with spit hoods. The law, as stated in the case of FI [2013], has not made any blanket prohibition of their use. Therefore, it is essential that their application is a genuine matter of necessity and that the officers that use them do so in full awareness of the sensitivities of their suspects and the dangers of the device. However, based on their increased usage across the country, it is not convincing that this will be the case.

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Tagged: Criminal Law, Human Rights, Policing

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