Anthony Owens v Chief Constable of Merseyside Police

An “intimate search” under Police and Criminal Evidence Act 1984, sections 55 and 65, requires physical intrusion into a body orifice other than the mouth. Physical contact with, or force applied to, the surrounding area is insufficient. The statutory safeguards cannot be avoided by ordering the detainee to carry out the intrusive act themselves. The distinction between an “intimate search” and a strip search is a question of statutory interpretation, but whether particular facts fall within the statutory language may be a matter for trial. A legally separable issue may nevertheless be determined summarily where the court has the necessary material. Claims based on non-compliance with Code C or operational guidance, including Convention-rights claims, remained for trial.

The appellant appealed from a Liverpool County Court decision striking out pleaded references to an “intimate search”. The claim arose from police treatment in May 2018, including alleged orders to remove clothing, manipulate the genitals and separate the buttocks. The pleaded causes of action included trespass to the person, assault, misfeasance in public office, unlawful imprisonment, personal injury and claims under the Human Rights Act 1998.

The county court held, applying section 65 of the Police and Criminal Evidence Act 1984 and R v Hughes [1994] 1 WLR 876, that the pleaded search was not an intimate search. The appeal concerned whether that ruling was wrong in principle or in substance, the meaning of “physical examination of a person’s body orifices”, and the effect of orders requiring the detainee to perform the relevant acts.

1. The appeal was dismissed. The county court was not wrong in principle to determine the statutory issue before trial by applying the “grasp the nettle” approach where the issue was a short point of law capable of determination independently of disputed facts.
2. Section 65 of the Police and Criminal Evidence Act 1984 requires an “intimate search” to involve physical intrusion into a body orifice other than the mouth. That was the binding effect of R v Hughes [1994] 1 WLR 876, and was reinforced by the persuasive reasoning in Tolmie v Dewar 2003 SC 265. Mere visual examination, including visual examination assisted by requiring a person to bend over or spread their legs, is insufficient.
3. The statutory concept concerns items concealed within a body orifice. Physical examination of intimate body parts, or of the area surrounding an orifice, does not itself fall within section 65. Guidance and commentary cannot enlarge the statutory definition.
4. The “by whom” argument failed. A search, including an intimate search, is not outside the statutory regime merely because the police officer orders the individual to perform the relevant act. Clear words would be required before statutory safeguards could be circumvented in that way. If the “what” point had succeeded, the appeal would have been allowed on this issue.
5. The decision did not determine the separate pleaded or proposed arguments concerning Code C, the College of Policing APP, prescribed procedures and Articles 3 and 8 rights. Those matters, including whether the acts were requested or ordered, remained factual and legal issues for trial.
6. The appellant was given permission to amend the particulars of claim within 14 days and the respondent permission to amend its defence within a further 14 days. No declaration of unlawfulness was made. The appellant was ordered to pay the respondent’s appeal costs of £4,441.80, not enforceable until conclusion of the claim.

• High Court (Queen’s Bench Division): the appeal from the Liverpool County Court decision was dismissed. The order striking out references to an “intimate search” under sections 55 and 65 of the Police and Criminal Evidence Act 1984 was upheld. Permission was granted for amendments concerning Code C, the APP and related human-rights arguments.