24 May 2010

Thomas A Swift’s Electric Rifle in our sights...

Do you know why they’re called Tasers? Rather picturesquely, Taser is an acronym for Thomas A Swift’s Electric Rifle, a title selected by its inventor Jack Cover in honour of the Tom Swift series of youth fiction novels. First published in 1910, I gather they were full of youthful inventiveness, high jinks and juvenile firearm production. Like Enid Blyton’s much-neglected Famous Five Try Nuclear Fission (1944) title or the Secret Seven Stage a Small-Scale Covert Incursion into Enemy Territory (1956). The title referenced in the Taser acronym is the jolly old Tom Swift and His Electric Rifle edition of (1911). You won’t be frolicking if you get needled by one, however, although you may flail about like a manikin with its strings rattled. Contemporary taser technology flings out a crackling 50,000 volts and costs the polis £1,000 a piece to purchase.

The nub of recent controversy over police use of taser technology in Scotland concerns a pilot that is being undertaken in Glasgow City Centre and Rutherglen. Thirty officers in Strathclyde Polis were trained “over a three day period” in the use of stun-guns, including on “the proportionate use of tasers in line with human rights.” The pilot commenced on the Monday 12th of April. As I mentioned at the end of last week, Amnesty International secured a legal opinion from Aidan O’Neill QC on the legality of this pilot project and have called for it to be suspended, based on his submissions. 

But what is the nature of his legal arguments? How do these relate to Amnesty's overall argument against the deployment of Taser technology? And just how effective is that combination anyway? Headlines cry – taser pilot contrary to human rights! - taser pilot unlawful! Which rights, and unlawful in what way you might well enquire. I agree with the Scottish programme director of Amnesty, John Watson that "... most folk just want to hear the basic arguments and leave the legal detail to others."  Equally, the detail is fundamentally important for the law and politics of the thing. Or at least, that is what I intend to try to demonstrate in the subsequent discussion. 

I must admit, I was initially rather suspicious of the lack of information on Amnesty's site, when I searched for the relevant news release. I have a magic piece of paper in my pocket that says you are wrong - but no, you can't see it - that smells fishy to me. To be fair, all it took was a brisk e-mail and they were gracious and helpful in providing me with full copies of O'Neill's advice, the letter to Kenny MacAskill and the Executive Summary. Interestingly, I also gather that it was this summary that was sent to all MSPs and members of Strathclyde police authority. Compared with the more closely worked, more intertextual advocate's opinion, the summary contains a very much reduced version of O'Neill's more nuanced arguments. My point is that our tribunes aren't being asked to scrutinise or even engage with the legal analysis itself - there is a significant dollop of argument from authority, here. Even more so in the case of a casual member of the public, interested in the issue, who could not even access the summary document without being impertinent enough to ask for it individually. This fact in itself is somewhat interesting, in the sense that it shows how groups like Amnesty operate in a network of those in the know, strategically facilitating press reductions of complexity into happy headlines sure to put pressure on your opponents in the public sphere. It also tells us something significant about how difficult they seem to find it to get policy makers, never mind the public common, to actually read detailed documents on complex issues.
Thus, those just skimming headlines, without getting an eye full of the argument, may be disposed to conclude that O'Neill suggests that the pilot is fundamentally unlawful. That the electric eels coiled inside the instruments themselves are wicked and pernicious and cannot but inflict degrading and inhuman treatment on those they strike at.  Not quite. O'Neill's arguments focus on Article 2 of the Convention - the Right to Life. It being admitted that the use of Tasers can kill people, the question becomes one minimisation and control of the State's death-dealing technology. In fact, O’Neill’s submissions (although not unimportant) are a classic of a certain sort of dry human rights genre. Loosely, we can think about it as the Arbitrariness Problem. It is not really concerned with suffering caused or potential fatalities induced by massive, crippling bursts of electrical energy, per se. Nor does it specifically address the virtue of the use of tasers whether as a general bit of kit, common to all police officers, or the limited armament of a particular specifically-trained cadre of Authorised Firearms Officers. Rather the human rights argument is primarily about the demand for law. Its formulation is - because tasers can kill people - we need clearly delineated guidelines for their use. Not - tasers can kill people, therefore law enforcement officers shouldn't use them.

"Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force "

This is not human rights law at its most expressive. Previous examples of the Arbitrariness Problem in Britain included wire-tapping. In the days when there was no legislative framework, the Chief Police Constable merely gave his fellow officers the nod to invade the suspected criminal's house, stick bugs in his furniture and generally play official Peeping Tom to find out what he was up to. No on, said the European Court. We can blame Napoleon for the restless typographic spirit of European legalism. It sits, sometimes rather uncomfortably, beside the apparently looser strictures of the Common Law. In sum:

What is of particular concern from a Convention rights standpoint is that there appears to be no readily accessible clear and unequivocal policy setting out the circumstances under which Taser might be used and the legal limitations on its use. Certainly the Scottish Ministers have not set out any such policy document.  No such policy appears on the web-site of policies of the Association of Chief Police Officers in Scotland. A search of “Taser” on the Strathclyde Police web-site as at 6 April 2010 bring only a reference or link to a police press release publicizing the fact that the pilot scheme extending Taser operational use was now in place.

Not what you expected, perhaps? The structure of the argument should alert you to one clear conclusion. If such orderly ministerial material was available and such guidelines clearly delineated, there is nothing in European Human Rights law to stop every police officer in Scotland carrying a taser in his or her back pocket. The human rights problem appears because of a lack of lawful authority and the need for lawful authority which human rights law requires. Aidan O'Neill QC's note of advice again:

I do not consider that, under the Police (Scotland) Act 1967 , the local police authority is given the power - whether by its consent (or failure to object) - to clothe the scheme in any lawful authority.    And I do not consider that the Chief Constable of police forces in Scotland are given authority under the Police (Scotland) Act 1967 to provide the necessary written authority required under Section 54(3) of the Firearms Act 1968 for the purchase or acquisition of firearms and ammunition for the public service. Instead the power to grant such authority is one which Section 5 of the Firearms Act 1968 invests in the Scottish Ministers.

Politically, where does that leave us? MacAskill is probably wriggling, uncomfortably. The Maximum Eck seemed to be sticking to his guns at First Minister's Questions last week. If we are hostile to tasers, is this helpful? Not necessarily. As you will have seen, this is a proceduralist type argument. Not unimportant, certainly not unimportant. But as I say, it is not a firm basis to oppose the use of tasers per se. In fact, if I was an enthusiastic supporter of electrifying recalcitrant arrestees, it would be all too easy to take all of these arguments on board and outfit my whole force with the stun guns. The good of it, at best, is that it drags the issue from an "operational matter for the Chief Constable" into the public forum. I strongly doubt, however, whether European human rights law is a strong rampart from which to defend the further political argument - that we should strictly limit how many police officers are armed with these instruments of electrical incapacitation and in what circumstances they should deploy them in. After all, just visit Europe. One cannot help but be struck by the ubiquity of firearms in the holsters of the more our neighbours more militaristic gendarmes.

This, in an important sense, is as it should be. Human rights law may draw lines on the edges of the map - but it is for us, through our politics, to chart our way across the landscapes of possibility that remain to us. Amnesty won't be able to lean long on legalisms. The question, it seems to me, is this. Do we want  police forces fully armed or not? On this point, it is illuminating- very briefly - to quote from some of the Parliamentary answers which O'Neill arrays in his Note from the period of 2004 till the present day.  They disclose the recent shifts in position. On the 18th January 2006, Cathy Jamieson told the parliament that:

The Association of Chief Police Officers in Scotland (ACPOS) approached the Scottish Executive in September 2004 seeking Scottish ministers’ views on extending the operational trial of Taser as a less lethal option for Scottish forces in dealing with firearms incidents.

Also in 2006, Jack McConnell said that:

Tasers will be issued only to authorised firearms officers who have successfully completed an approved training course in the use of the device.

Yet the Strathclyde Police notice, announcing the pilot, declares that the:

The aim of the pilot is to curb the number of assaults on officers.

And crucially, the thirty pilot officers equipped with Tom Swift's Electric Rifles are also not authorised firearms officers, either. Like a scruffy Vicomte Sébastien de Valmont, Kenny MacAskill's repeated answers to all of this is that it is an operational matter for Police Chief Constables: "Its beyond my control". Fundamentally, I don't find this terribly convincing, nor is it a satisfactory answer to the police on their own motion accumulating any number of instruments of death or painful incapacitation. If I had to guess, much of this Ministerial stubbornness may be brought on by anxieties about the ever-more-familiar "soft touch Scotland" line. After all, how soft touch is nabbing a suspect by blasting them into a fugue by subjecting their gonads with massive electrical currents? I've always supported the idea of our police force not carrying guns, but having access to well-trained fellow firearms officers, if the situation was of sufficient extremity to call for it. I would therefore entertain significant qualms about any scheme to arm every Scottish officer with an electric rifle, however orderly and lawful the governing provisions might be, setting down circumstances for their proper use.  Amnesty's intervention may be a mechanism to begin a public discourse on Tasers. In that discussion, however, we largely leave behind the arguments of human rights law, and assume all the responsibility and difficulty of politics. As it should be.


  1. I think there are other implications, especially in light of the story about West Lothian police using a taser just this week on a 20 year old man. The comment from their spokesperson was this:

    "Before a Taser is discharged a suspect will be given clear warning to cease their actions and surrender."

    Great. Except, what if the person is deaf? Or a non-English speaker? Or has a learning disability and cannot understand the warning? It has happened all too often elsewhere, with horrendous result. In England just a couple of weeks ago officers used a taser on a man who was in the full throes of an epliptic fit. Do you think he was able to respond to the so-called 'warning' before the taser discharged? And health the implications of this use on a person who was already having an electric overload in their brain hardly bears thinking.

    We have serious concerns about the use of tasers, and yes they will violate somebody's human rights - it's only a matter of time.

    Here is our take on the issue:


  2. Much obliged for your comment, celticgirl - and you raise a very important point. At stake here are a great many issues which I've glossed or left out entirely. In my defence, this was already a long post fit to test the patience of my forgiving audience! At any rate, I commend the site linked to in the comment to other readers.

    What you are pointing to, I think, goes to the heart of the issue I tried to bring out in the last section. Is our policy to use tasers as a less-lethal way of resolving situations involving firearms - or do we extend their use to the extent that they are employed to fend of assaults, where other less-less potentially lethal means are available?

    It seems to me, if conventional police officers have these instruments, no doubt they will use them. All very understandable that might be too, given the situations they find themselves in.

    A good policy on this is one which removes or at least limits the temptations of overzealous use - which erects up key checks which make the forces of the state hesitate before lashing out with potentially lethal force.

  3. Thanks Worrier - it's a complex issue no doubt. In our view specialist training is the key. It would be interesting to know what is covered in the taser training. I think the real world vs training is where there is likely to be a big gap. I'm convinced they simply don't cover the scenarios I've outlined. This points out an uncomfortable possibility: the police services are willing to concede an 'acceptable' number of lethal incidents as a result of taser use in community safety.

    In academy training in Scotland it's my understanding that 3 hours total is spent on the entire realm of disabilities, including mental health. If you factor in stress, poverty, and substance abuse, the bulk of people that police will encounter in situations where tasers are likely be used rises sharply. Will there be time for a proper assessment of a given situation before the taser is used, or will it be a quick solution for dealing with a perceived threat?

    As always, more questions than answers.

  4. What you describe is also a classic legislator's problem - imagination. Given all the mess and tangle of real life, how to make decisions at a level of generality which will serve well? How to avoid legislating or training based on modal cases, likely to confuse when the non-modal case is encountered? Even reasonable rules can have unreasonable applications.

  5. There is also the issue of underlying health problems that the sufferer may not even be aware of such as hypertrophic cardiomyopethy which is a genetic heart defect. The wider population are not tested for this, and it may be responsible for many sudden deaths. The impact of a taser hit on persons suffering from this condition or other heart defects may be lethal. The weaponising of our police is in my view unacceptable. The reasons given for their introduction are based on attacks on police officers, but no substantive evidence apears to have been presented on the nature of such attacks. If a person is arrested and kicks or otherwise resists arrest this will be recorded as an assault on the arresting officer, but does not indicate the seriousness of the assault. Any evidence of police assault should in my opinion be based on clear evidence of those officers who were seriously injured/killed in the course of their duties not based simply on reported assaults. In any case the police already have pepper spray and side handled batons to deal with the vast majority of disturbances they have to deal with.

  6. Thanks for your comment, Anonymous.

    The sort of underlying vulnerabilities some people will have to particular forms of injury are already known to the Common criminal law and delict (or tort for those of us who insist on Norman Anglo-Frenchiness). For some quaint reason, we refer to this as the "Eggshell skull" rule. Take your victim as you find him, and no excuses if you gub a particularly brittle opponent in a square go or if you open the veins of a Jehovah's Witness. In law you're basically jiggered.

    I concur on your second point about the evidential basis for this. If the paradigm for taser use is going to shift towards staving off assaults - the detail of the police claims must be the subject of urgent scrutiny. Personally, I'm not convinced by the change in justification - but if it is an arguably policy move, we need substantial justification, not a loose tissue of quantitative data.