Sex Matters, R (on the application of) v National Police Chiefs' Council & Anor

A police officer’s statutory power to carry out a strip search under Police and Criminal Evidence Act 1984 is subject to the statutory same-biological-sex requirement. The Act does not, however, extinguish the common-law capacity of a detained person and an officer to agree to a search on different-sex terms, provided consent is genuine and the search is otherwise lawful. Detention alone does not invalidate consent. The conclusion is confined to strip searches under sections 54 to 54B; it does not decide intimate searches or the effect of a Gender Recognition Certificate. The claim was dismissed.

The claimant, a charity, sought judicial review of guidance issued by the National Police Chiefs’ Council and the British Transport Police concerning strip searches of transgender detainees. The guidance permitted a search by an officer of a different biological sex where the detainee, the officer and the authorising officer consented, while retaining the statutory search regime as a fallback.

The claimant argued that the same-sex requirements in the Police and Criminal Evidence Act 1984 made such searches unlawful. The defendants relied on common-law consent and the ordinary citizen capacity of police officers. The equality-duty ground was withdrawn and a separate ground concerning Annex L to PACE Code C was not pursued. The central issue was whether the Act extinguished any common-law capacity to consent to a strip search on different-sex terms.

1. Disposition. The claim was dismissed. The court decided the remaining ultra vires issue as one of statutory construction. It did not decide the effect of a Gender Recognition Certificate under PACE or any argument under the Human Rights Act 1998.
2. At common law, physical interference with a person’s body is generally lawful where there is genuine consent: F v West Berkshire HA [1990] 2 AC 1. Detention does not of itself make a person incapable of consenting. Whether consent is genuine depends on the evidence and all the circumstances, as illustrated by Freeman v Home Office (No 2) [1984] QB 524. In principle, a detained person may consent to a strip search by an officer of a different biological sex, and the officer may agree to conduct it.
3. The public-interest qualification to the general consent rule did not apply. A strip search is intrusive, but it does not involve consent to physical injury of the kind considered in R v Brown [1994] 1 AC 212. On the facts contemplated by the guidance, consent could mitigate distress. The officer’s consent was voluntary and could be withdrawn.
4. Police officers retain the rights and capacity of ordinary citizens when they are not exercising coercive police powers. The court applied the general principle stated in R (Centre for Advice on Individual Rights in Europe) v Secretary of State for the Home Department [2018] EWCA Civ 2837 and supported by Collins v Wilcock [1984] 1 WLR 1172.
5. Parliament is presumed not to alter the common law unless it does so expressly or by necessary implication. The court applied that principle from R v Secretary of State for the Home Department, ex p Pierson [1998] AC 538 and R (Rottman) v Commissioner of Police of the Metropolis [2002] AC 692. Part V of the Police and Criminal Evidence Act 1984, including section 53, codifies and regulates coercive police powers. The same-sex requirements in sections 54(9), 54A(7) and 54B(6) apply to those statutory powers. They do not extinguish consensual arrangements made by an officer acting in their capacity as a citizen.
6. The conclusion was limited to strip searches authorised in the absence of consent by sections 54 to 54B and Annex A to PACE Code C. The court expressed no view on intimate searches, particularly the wider wording of section 55(7). The guidance was therefore not ultra vires on the pleaded ground.

This was a first-instance judicial review. Proceedings were issued on 2 September 2025. Ground 3 was not pursued, and Ground 2 was withdrawn by consent on 18 May 2026. Permission was granted on the papers on 5 January 2026 for the remaining ground, which was heard on 16 June 2026.