Conclusions

34. The footage shows force being used against a man who appeared to be in physical distress but who was calm and communicative with staff. The period of time when D1914 was on the floor and pushed forwards from the waist was particularly troubling to watch.
35. Dr Oozeerally should have raised concerns in advance about force being used against D1914. In my view, not only was it not in D1914’s best interests to be subject to a use of force in these circumstances, but it was also positively harmful to D1914 and put him at further risk. In my opinion, Dr Oozeerally showed a concerning lack of insight into the risks to D1914 during his oral evidence to the Inquiry.¹ I discuss this issue further in Chapter D.7 in Volume II.
36. The records state that D1914 was made subject to Rule 40 for “refusing to relocate to E Wing” and to “maintain good order and discipline of the centre”.² However, the IS.91RA Part C form records that D1914 “stated that he would kill himself rather than return to Romania, because of this threat he has now been placed onto ACDT constant supervision and is now on Rule 40”.³ In addition, while reference is made in the footage by Mr Webb to D1914 intending to take spice, this is not listed as a reason for the authorisation of Rule 40 within the documentation. Accordingly, it is not clear from these records, when read together, precisely why D1914 was made subject to Rule 40. While it may be justifiable in certain circumstances to relocate a detained person to E Wing ahead of their imminent removal, it is not appropriate for that detained person additionally to be made subject to Rule 40 while on E Wing where they do not separately satisfy the criteria for Rule 40.⁴ If there was a genuine concern that it was necessary to make D1914 subject to Rule 40 for his own protection (due to the risk of suicide), that should have been made clear in the records. In my view, the documentation gives the distinct impression that D1914 was inappropriately made subject to Rule 40 as a first response to his suicide threat, and/or for the administrative convenience of staff. The use of Rule 40, including in relation to those who are at risk of suicide or self-harm, is considered in more detail in Chapter D.5 in Volume II.
37. Similarly, the use of force as anything other than a last resort is inappropriate. It is particularly concerning to see that Mr Tulley was instructed to use a shield against D1914 as a tool to prevent him from self-harming, in preference to de-escalation techniques. While the Inquiry heard evidence that D1914 was said to have been in possession of spice, there was no evidence that this was in fact the case. It does not appear that his cell was searched; the officers did not ask D1914 any questions about having spice; it was not mentioned in the Rule 40 documentation; and there is no evidence to suggest that a Security Information Report was completed (this is required for information relevant to the safety and security of the immigration detention estate). In the circumstances, it does not appear to me as though the officers considered the report from D1914’s cell mate to be a serious risk, but they still referred to it as a basis for a use of force. This use of force incident is discussed further in Chapter D.6 in Volume II.
38. It is clear from the footage and audio recordings of conversations among staff that D1914’s medical issues were well known to staff. Mr Lake and another member of staff both (unrelatedly) used the phrase “If he dies, he dies” in reference to the risks associated with using force against D1914.⁵ Both officers demonstrated a callous indifference to the wellbeing of a vulnerable detained person in their care. Mr Webb also referred to D1914 as a “cunt” when discussing the planned use of force with other officers.⁶
39. Healthcare staff have an important safeguarding role in the context of the use of force against a detained person: for example, in raising any concerns about the use of force and any contraindications (clinical reasons not to use force on a particular detained person). This safeguarding responsibility applies both in advance of a planned use of force and during a use of force, whether that force was planned or spontaneous. D1914 had a serious heart condition that was documented in his medical records.⁷ He had undergone two coronary artery bypass surgeries prior to his detention. While at Brook House, D1914 had experienced cardiac symptoms including chest pain and palpitations. He had been taken to hospital by ambulance, including 10 days earlier on 17 May 2017 due to an abnormal blood result. He was awaiting a cardiac catheter procedure due to abnormal heart rhythm. He also had a history of self-harm.
40. The officers appeared to rely entirely upon the Healthcare staff to alert them to the need to stop the restraint. While this is an appropriate role for Healthcare staff to undertake, it is clear from the footage that, once Mr Omoraka had completed his clinical observations of D1914, no further clinical readings were taken for the duration of the restraint.⁸ In addition, Mr Omoraka should also have alerted staff to the dangers of a handcuffing technique that is associated with positional asphyxia (as discussed in Chapter D.7 in Volume II). Given D1914’s health vulnerabilities, far greater priority should have been given to the risks to his wellbeing by all the staff present. D1914 asked questions or sought clarification at several points during the incident. There was no apparent consideration of removing the PPE to assist in effective communication with D1914 or to enhance the ability to hear D1914’s heavy breathing; nor of de-escalation. No subsequent clinical checks were carried out, despite D1914’s heavy breathing and his requests for help.
41. While force was not used in the manner suggested by Mr Webb, the force that was used against D1914 was neither necessary nor used as a last resort. Mr Dix allowed only 14 seconds after Mr Omoraka had completed his medical observations before instructing officers to use force. Regardless of whether earlier attempts had been made to persuade D1914 to walk to E Wing unassisted, Mr Dix did not allow adequate time to attempt to engage and persuade D1914 immediately prior to the use of force. As noted by Mr Collier, there was no pressing need to move D1914, as his flight was the following day. There was no reason, therefore, not to allow time for this.
42. I am also concerned by the use of handcuffs on D1914. In Mr Collier’s opinion, handcuffs were unnecessary in the circumstances, particularly in light of D1914’s physical condition.⁹ I agree. D1914 was unable to support his own weight and was audibly breathless throughout the incident. He did not pose any risk to the officers, and the only resistance he appeared capable of offering was verbal.
43. Moreover, the way in which D1914 was handcuffed was dangerous. While Mr Collier did not comment on this specific point in relation to D1914, he was clear that people under restraint should not be flexed forward and handcuffed behind their back due to the serious medical risks that this technique causes, including positional asphyxia.¹⁰ Mr Collier stated that this is something officers ought to have known.¹¹ I consider that the footage demonstrates that these risks were in fact known by at least Mr Webb, Mr Dix and the unidentified officer behind Mr Ring. Despite this, none of the staff in the cell intervened to ensure that D1914 was not put at risk. This was unacceptable and demonstrated a complete disregard for D1914’s welfare.
44. I also agree with Mr Collier’s evidence that, as a matter of decency, D1914 should have been given the opportunity to put on a T-shirt.
45. Mr Collier also commented on the debrief held by Mr Dix, which he described as lacking depth.¹² Again, I agree with Mr Collier’s assessment. There was no discussion of Mr Dix’s decision-making or reflection about whether any aspects of the restraint could or should have been managed differently. The Healthcare staff made a superficial contribution to the discussion and Mr Dix did not seek any meaningful comment from any of those present.
46. I consider that D1914’s treatment was capable of causing intense physical or mental suffering. His physical and mental ill health at the time put him at risk of significant harm while being restrained. I accept D1914’s evidence to the Inquiry that he suffered sharp chest pains when the officers entered his cell, and that the restraint caused him pain. Moreover, as noted in paragraph 43, D1914 was placed in a position known to cause positional asphyxia and was plainly out of breath throughout the use of force. In the circumstances, there was a clear disregard for D1914, including whether the restraint caused physical suffering. D1914 had a known history of self-harm which I consider made him more vulnerable to mistreatment. I accept D1914’s evidence that he felt he was treated as an “animal” during the strip search.¹³ The use of PPE by staff was inappropriate and could have been frightening for D1914. In addition, it is my view that the use of force against D1914 while he was partially dressed was humiliating and showed a lack of respect for his human dignity. Therefore, I find that there is credible evidence that these acts are capable of amounting to inhuman and degrading treatment.

1. Dr Husein Oozeerally 11 March 2022 135/21-145/6[↩]
2. CJS001768_002[↩]
3. CJS001768_006[↩]
4. CJS006043_004[↩]
5. KENCOV1025 – V2017052700011; TRN0000087_016[↩]
6. TRN0000087_030[↩]
7. CJS0074524_001[↩]
8. Day 8 AM 2 December 2021 03:11:15-03:17:53 (Disk 50 UOF 134.17 cam 3)[↩]
9. INQ000111_034 para 122; INQ000177_004 para 4[↩]
10. Jonathan Collier 30 March 2022, 51/24-25, 52/1-25, 53/1-12; Inquest into the Death of Jimmy Kelenda Mubenga: Report by the Assistant Deputy Coroner, Karon Monaghan QC Under the Coroner’s Rules 1984, Rule 43, p25, para 68[↩]
11. Jonathan Collier 30 March 2022, 52/18-25-53/1-12[↩]
12. INQ000158_019 para 4.4[↩]
13. DL0000229_043 para 155[↩]