have implications… (for its) less lethal nature’.
Section 2.1.2: When should the weapons be issued
Carrying weapons in places of detention should not be a routine
measure and, as such, they should seldom be issued. The Nelson
Mandela Rules (Rule 82.3) note that, ‘except in special circumstances,
prison staff performing duties which bring them into direct contact
with prisoners should not be armed’. Whilst this would seem to
prohibit the routine carrying of firearms, it is not immediately clear
whether this provision applies just to firearms, or also extends
to less lethal weapons. However, some monitoring bodies have
argued for a broad interpretation. For example, the CPT have noted
that ‘preferably, custodial staff should not carry batons at all. If,
nevertheless, it is considered indispensable for them to do so, the
CPT recommends that the batons be hidden from view’ (CPT 1999).
The European Prison Rules (69.1 and 69.2) note that; ‘except in an
operational emergency, prison staff shall not carry lethal weapons
within the prison perimeter’ and that ‘the open carrying of other
weapons, including batons, by persons in contact with prisoners shall
be prohibited within the prison perimeter unless they are required
for safety and security in order to deal with a particular incident’.
Moreover, as noted in Section 1, the carrying and use of
weapons is prohibited in any facilities where juveniles
are detained.
Checklist for detention monitors:
Carrying weapons.
• Do staff carry firearms as a routine measure? If so,
how often and under what circumstances?
• Do staff carry any less lethal weapons routinely?
For example, batons, chemical irritant sprays (e.g.
pepper spray)? If so, how often and under what
circumstances?
Section 2.1.3: Establishing Policies and Procedures
International standards and bodies have deemed it important that
regulations are set around the use of force including, but not limited
to, the use of firearms. The Basic Principles (Principle 11a) state
that ‘the circumstances under which law enforcement officials
are authorized to carry firearms and… the types of firearms and
ammunition permitted’ should be specified in regulations.
It is not just firearms that require detailed, specific regulations: the
SPT (2013) has previously noted that authorities should ‘establish
clear rules about the use of weapons within prisons, so as to
ensure that they are used in strict conformity with the principles
of proportionality and necessity’. Similarly, the European Prison
Rules (Rule 65) states that ‘there shall be detailed procedures about
the use of force including stipulations about: the various types of
force that may be used; the circumstances in which each type of
force may be used; the members of staff who are entitled to use
different types of force; the level of authority required before any
force is used; and the reports that must be completed once force has
been used’.
Nor is the need for clear guidance around use of force and restraint
restricted to prisons; the CPT (2017: 3) have stated the need for
clear guidance in other places of detention, including psychiatric
establishments. They have noted, for example, that ‘every psychiatric
establishment should have a comprehensive, carefully developed
policy on restraint… Such a policy should be aimed at preventing as
far as possible the resort to means of restraint and should make clear
which means of restraint may be used, under what circumstances
they may be applied, the practical means of their application, the
supervision required and the action to be taken once the measure
is terminated’.Similarly, the UNODC/OHCHR Resource book notes
that ‘clear guidelines should be provided for in law on the conditions
and circumstances under which force may be used against persons
deprived of their liberty’ more generally. Hence these provisions,
and the need for clear rules about the use of particular weapons,
are useful not only in prison contexts, but are relevant for any
detention setting where weapons, or other force, may be used.
As well as setting out clear standards for the use of force, the UNODC/
OHCHR Resource book also notes that ‘it is good practice to specify
in the regulations on the use of force the circumstances or cases when
the use of force is not lawful and therefore is prohibited… In some
countries… (policies) explicitly list what kind of force is prohibited
by the police, providing detailed examples such as the prohibition
to hit someone’s head against a wall. This can be a good practice
in particular as a tool to address patterns of unlawful, arbitrary or
excessive use of force within a law enforcement agency’ and in
detention settings more broadly.
The Basic Principles (Principle 11c) do not prohibit the use of
firearms and ammunition per se, but do state that regulations
should ‘prohibit the use of those firearms and ammunition that
cause unwarranted injury or present an unwarranted risk’. It does
not define, however, the firearms and ammunition intended to be
covered by this provision, or whether it should also be interpreted
so as to include less lethal weapons, many of which may also fire
ammunition, and may also cause ‘unwarranted injury or present
an unwarranted risk’. Amnesty International’s close reading of the
Basic Principles (Amnesty International 2015) argues that lethal
and / or less lethal equipment should be prohibited if it meets one
or more of the following criteria:
• Is found to be inaccurate enough to carry a great risk of
causing significant injury including to persons other than
the targeted person (e.g. pellet firing shot guns, certain
kinetic impact projectiles such as rubber balls).
• Causes harm which is disproportionate to the objective
(e.g. carries a high risk of causing death, despite being
considered to be less lethal, such as rubber coated
metal bullets);
• Aims to achieve an objective that is equally achievable
with a less harmful device (e.g. thumb-cuffs vs. ordinary
handcuffs, spiked batons vs. ordinary batons);
• Is highly abusive (electric shock devices that do not have a
cut-off point, electric stun guns that act as a direct
contact weapon)’.
13
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