Davies v Merseyside Police & Anor

The compulsory removal of more than a detainee’s outer clothing for seizure under section 54 of the Police and Criminal Evidence Act 1984 is a strip search governed by Code C, Annex A. Paragraph 11 applies so far as the context allows, even though paragraph 10 does not address clothing seized to prevent self-harm.

The removal must occur where nobody uninvolved, and no officer of the opposite sex, can observe the detainee. The Code does not prohibit opposite-sex officers from managing the detainee beforehand or remaining nearby. Urgency arising from a risk of serious harm engages the exception to the usual requirement for an appropriate adult. Compliance with these safeguards, together with reasonable and proportionate conduct, may establish that the interference with private life complies with article 8.

A 14-year-old girl was arrested while severely intoxicated and behaving aggressively. A custody officer, relying on a previous incident involving self-harm, urgently ordered the removal of her clothing to prevent its use as a ligature. Three female officers removed the clothing, using a safety blanket, and dressed her in a safety gown. Male officers remained outside the room but did not see her undressed.

The Liverpool County Court dismissed claims including assault and breach of article 8 of the European Convention on Human Rights. The claimant appealed only on whether Code C, Annex A applied, whether its safeguards had been breached, and whether the interference was otherwise in accordance with law. The reasonableness and proportionality of the custody officer’s decision, the urgency of the risk, and the finding that no male officer observed the claimant were not open on the appeal.

1. Appeal dismissed unanimously. Section 54 of the Police and Criminal Evidence Act 1984 treats the compulsory process by which clothing is found or seized as a search. Read with Code C, paragraph 4.1, the section brought the removal and seizure of the claimant’s clothing within Annex A. Removing more than outer clothing therefore constituted a strip search for the purposes of paragraph 9.

2. Paragraph 10 contains a lacuna because it contemplates a search for a concealed article but does not address the seizure of clothing which may itself be used for self-harm. That omission did not exclude the safeguards in paragraph 11. Those safeguards applied so far as the context allowed to every strip search falling within section 54 and paragraph 4.1.

3. There was no breach of paragraph 11(b). Its essential requirement was that the removal occur in an area where the detainee could not be observed by anyone who was uninvolved or of the opposite sex. It did not prohibit male officers from participating in the detainee’s earlier management, being present when the instruction was given, or remaining nearby. The accepted findings established that no male officer saw the claimant undressed and that a safety blanket protected her dignity.

4. The urgency exception in paragraph 11(c) applied. The unchallenged finding was that the custody officer reasonably considered immediate removal necessary to prevent the clothing being used as a ligature. The absence of an appropriate adult therefore did not breach the paragraph. The officers also complied with paragraph 11(d) by acting reasonably and proportionately and preserving the claimant’s dignity so far as possible.

5. The manner of the interference was proportionate under article 8. Wainwright v United Kingdom and Jaeger v Estonia demonstrated that a lawful strip search may nevertheless breach article 8 when its manner fails to respect privacy or prescribed safeguards. Here the police complied with both the letter and objectives of the Code.

6. Pitchford LJ added that, even if Annex A had not applied, that alone would not have made the removal unlawful. Section 54 supplied a narrowly confined legal power; preventing self-harm was a legitimate aim; and the unchallenged findings established urgency and proportionality. Although children in custody require special care, the court could not consider whether less invasive measures were available because the appeal did not challenge the custody officer’s decision on that wider ground. Lewison and Fulford LJJ agreed.

1. Court of Appeal (Civil Division): The claimant’s appeal was dismissed unanimously. The court held that Code C, Annex A applied, but that its safeguards and article 8 had not been breached: [2015] EWCA Civ 114.

2. Liverpool County Court: Mr Recorder Parker rejected each pleaded ground and entered judgment for the defendant. No citation is stated in the judgment.