Yousif v Commissioner of Police for the Metropolis

Article 3 requires treatment to attain a minimum level of severity, assessed in all the circumstances. Humiliation inherent in legitimate detention does not cross the threshold where the treatment is strictly necessary for the detainee’s safety and involves no more interference than required. Breaches of the Police and Criminal Evidence Act 1984 Codes and related custody guidance form part of the factual matrix, but do not themselves establish civil liability or a Convention violation. Appellate courts should be cautious before replacing a trial judge’s evaluation, especially where credibility and matters of degree are central. Article 8 may justify an otherwise serious interference with privacy where police take necessary steps to protect a lawfully arrested person’s safety.

Walid Yousif appealed after the Central London County Court dismissed his civil claim arising from his detention at Paddington Green police station. The appeal concerned alleged assault, a strip search, removal of clothing, a cell transfer and the absence of an appropriate adult, said to breach Articles 3 and 8 of the European Convention on Human Rights. The appellant relied on CCTV footage and breaches of the applicable Code of Practice and custody guidance. The central issues were whether the police actions were necessary and proportionate, whether the trial judge had erred in evaluating the evidence, and whether the treatment crossed the Convention thresholds.

1. Disposition and appellate approach. The appeal was dismissed. The appellate court rejected the invitation to undertake a de novo assessment of the CCTV and facts. Appellate caution is required where credibility, overall evaluation and matters of degree are central, as explained in Biogen Inc v Medeva plc [1996] UKHL 18, Benmax and H v Commissioner of the Metropolis [2013] EWCA Civ 69.
2. Custody powers and procedural breaches. Section 54 of the Police and Criminal Evidence Act 1984 gave the custody officer power to remove clothing and personal effects where she reasonably believed that they might be used for self-harm. The decision was made in good faith after repeated refusals to answer questions about previous self-harm. Breaches of the Code of Practice and related guidance, including the failure to obtain an appropriate adult and defects in the search procedure, formed part of the factual matrix. They did not themselves establish civil liability or determine the Convention claims.
3. Article 3. The minimum-severity test in Wainwright v United Kingdom (2007) 44 EHRR 40 remained applicable. The court accepted that the Grand Chamber’s reasoning in Bouyid v Belgium App. 23380/09 required particular attention to dignity and strictly necessary force, but expressed concern about treating diminished dignity alone as a sufficient threshold. Bouyid was factually and legally distinguishable because it concerned deliberate, unjustified force. Here, the search, continued detention without clothing and cell transfer were strictly necessary responses to the detainee’s conduct and the legitimate concern for his safety. There was no breach of Article 3.
4. Article 8 and assault. The interference with privacy was justified as necessary in a democratic society for the protection of the safety of a person lawfully arrested. The assault claim also failed because the trial judge was entitled to find that only the minimum force necessary to move the detainee had been used. The court accordingly dismissed the appeal in its entirety.

• Court of Appeal (Civil Division) dismissed the appeal in full: [2016] EWCA Civ 364.
• Central London County Court, His Honour Judge Saggerson, dismissed the claim in its entirety after a four-day trial in a reserved judgment dated 14 November 2013.