Davies v Merseyside Police & Anor

At 12.40 am on Thursday 16 September 2010 the claimant, who was then a 14 year old girl, was arrested outside a kebab shop in Argyle Street Birkenhead. Her behaviour was so uncontrolled and aggressive that she was handcuffed and taken to Wirral police station. The custody officer, Police Sergeant (“PS”) Gilmore ordered that her clothing should be removed because she was a suicide risk. The claimant was taken to a room by three female officers who removed the claimant’s clothing and dressed her in a safety gown. She was then placed in a cell in which she could be observed by means of internal CCTV.

The claimant commenced proceedings in Liverpool County Court against the Merseyside Police. Her particulars of claim were amended by counsel on 10 May 2013. In her claim no point was taken as to the lawfulness of the claimant’s arrest. She sought damages for assault on the ground that the defendant’s officers had used excessive force in restraining the claimant on arrival at the police station. Secondly, the claimant sought damages pursuant to section 7 of the Human Rights Act 1998 for breach of her right to respect for her private life under Article 8 of the European Convention on Human Rights (“ECHR”). She made further claims of breach of Code C of the Police and Criminal Evidence Act 1984 (“PACE”) Codes of Practice and/or breach of the Mental Capacity Act 2005 and/or for breach of the Disability Discrimination Act 1995.

The claim was heard before Mr Recorder Parker (shortly afterwards his Honour Judge Parker) sitting at Liverpool County Court for five days ending on Wednesday, 4 December 2013, when he delivered a detailed extempore judgment. He rejected each of the grounds of claim and gave judgment for the defendant.

The claimant appeals from the recorder’s order on the grounds that:

he erred in finding that Code C, Annex A did not apply to the forced removal of clothing, authority for which was provided in section 54(4) PACE;

in breach of Code C, Annex A, part B it is contended that (i) male police officers were in a position, should have they chosen to do so, to observe the removal of the claimant’s clothing and (ii) male officers took part in the management of the claimant immediately before the claimant’s clothes were removed; accordingly, the defendant was in breach of Article 8;

alternatively, if, contrary to the claimant’s case, Code C, Annex A did not apply to the claimant’s circumstances, the recorder failed to determine that the defendant’s action was not in accordance with law within the meaning of Article 8(2).

The claimant does not appeal against the recorder’s finding that she was not assaulted, or against his judgment that there was no breach of duty under the Mental Capacity Act 2005 or the Disability Discrimination Act 1995. There is no appeal against the recorder’s finding that the custody officer, PS Gilmore, acted reasonably and proportionately in deciding that there was an urgent need for the removal of the claimant’s clothes. Finally, the claimant was refused permission to appeal against the recorder’s finding of fact that no male police officer observed the claimant while her clothing was being removed.

On 12 December 2014 Jackson LJ granted an application made jointly by Just for Kids Law and Children’s Rights Alliance for England to intervene in the appeal, to make concise written submissions and to address the court.

The court was provided with detailed written submissions by the interveners supplemented orally by Ms Williams with commendable focus and precision. The court was reminded of the vulnerable position of children in police custody and the duty upon the police service under section 11 of the Children Act 2004 to have regard to the welfare and best interests of children in their care. The special position of children has been recognised by the United Nations Convention on the Rights of the Child (“UNCRC”), in particular in the identification of their right to privacy (art. 16), protection from maltreatment (art. 19), and protection of their sense of dignity and worth (art. 40).

The court was referred to a number of international instruments whose objective is the protection of and respect for the rights of children, including those in custody.

The interveners submitted that it was essential that there should be procedural safeguards for the protection of the rights and dignity of children under Article 8 ECHR. Code C, PACE fulfilled the minimum requirements of such an instrument.

The interveners supported the claimant’s case that if, as the recorder found, Code C did not apply directly to the claimant’s circumstances, then the Article 8 requirement that the interference must be in accordance with the law and in pursuit of a legitimate aim was not met since the individual had no access to knowledge of the circumstances in which the interference could lawfully take place (compare Gillan and Quinto v United Kingdom [2010] 50 EHRR 45).

At the time of these events the claimant was a girl who had endured a very difficult childhood, during which she had suffered from sexual and physical abuse. The recorder, having heard evidence from expert psychologists, concluded that the claimant probably suffered from a complex post traumatic stress disorder caused by events unconnected with the present case, and a complex conduct and emotional disorder. Her young life had been blighted by alcohol and drug abuse.

At about 12.40 am on 16 September 2010 Police Constable (“PC”) Lepoisdevin and PC Copeland were flagged down in Argyle Street, Birkenhead by someone working in the Burger Kebab House. That person made a complaint about the claimant’s conduct. On the officers’ arrival, the claimant, who was severely intoxicated having consumed a quantity of vodka, had emerged from the shop while shouting abuse towards the occupants. When she was warned by the police officers she turned her aggression towards them in consequence of which she was arrested and handcuffed outside the police vehicle and then placed within it. En route to the police station she continued to struggle and shout abuse at the officers.

On being removed from the police vehicle at the police station the claimant made a noise similar to clearing the throat so as to give the impression that she was preparing to spit at the officers. As a result, the officers walked her to the custody desk with her head held down so that she was facing the floor as she walked. The claimant was shouting abuse and at times screaming incomprehensible words or sounds. She continued to struggle and on two occasions raised her feet in a manner suggestive of an attempt to kick out at the officers.

On the claimant’s arrival at the custody desk PS Gilmore consulted a computerised custody record dated 2 June 2010 by which he was informed that the claimant had on that occasion been arrested having consumed a litre of cider and having destroyed her room at home and having cut herself and taken a drug overdose. She had been taken to the police station in leg restraints and handcuffs but had calmed down at the custody desk. Because the claimant represented a risk of self harm she had been placed in a safety gown and taken to a CCTV cell where she was detained overnight. In the light of this information PS Gilmore decided that as a matter of urgency the claimant’s clothing should be removed and that she should be provided with a safety gown. The recorder found that the purpose of the instruction was not to search the claimant for articles but to remove clothing to reduce the risk of suicide by using that clothing by way of a ligature.

Before she was taken from the custody desk the claimant’s handbag and hair were searched. During this time, although the claimant was under restraint, she retained her mental capacity. The recorder found that she was able to understand information given to her, to retain it and to use it for the purpose of making a decision. The claimant’s condition was undoubtedly impaired by her consumption of vodka but it did not affect her comprehension.

The claimant was taken to a room for the purpose of having her clothing removed. She was accompanied by two female detention officers and two male officers. They were joined shortly after by a female police officer. She was informed that she would be undressed. At this point the male officers left the room and the claimant remained in the company only of the three female officers. Although the claimant resisted the three female police staff were able, using a safety blanket, to preserve, as far as possible, the claimant’s dignity. They removed the claimant’s handbag, clothes and body jewellery. The recorder found that, at all material times, the police were acting reasonably and proportionately with the sole objective of reducing the risk of self harm and, in particular, suicide.

Once the claimant had been provided with her safety gown she was taken to a cell where she could be observed by means of a CCTV camera and checked at intervals of 15 minutes. While alone in the cell the claimant banged her head against the wall and pulled out strands of her hair or hair pieces. Within a short period she settled and fell asleep.

The recorder held that since the female officers had not been engaged in a ‘strip search’ of the claimant, the relevant part of Code C did not apply to the circumstances. Nonetheless, the Recorder found, police officers were required to follow “the spirit” of Annex A of Code C in order to ensure that the claimant’s Article 8 right to privacy was protected. This they had done and there had been no breach of Article 8 either in the fact or the manner of the removal of her clothes.

Article 8 states:

Subject to exceptions that do not apply to the present appeal, section 39(1) PACE provides that it is the duty of the custody officer in a police station to ensure that all persons in police detention are treated in accordance with the Act and any Code of Practice issued under the Act.

Section 54(1) requires the custody officer to “ascertain everything which a person has with” her when she is brought to the police station following arrest. By subsection (3), subject to subsection (4), “a custody officer may seize and retain any such thing or cause it to be seized and retained”. Subsection (4) provides:

believes that the person from whom they are seized may use them-

to cause physical injury to himself or any other person …”

violent or likely to become violent; or

incapable of understanding what is said to him.

As to subsection (7) there is no dispute that in the present case an “intimate search” (authorised by section 55 of the Act) did not take place.

Section 117 PACE provides that where any provision in the Act confers a power on a constable which does not require as a condition of its exercise that the consent of another person is obtained, the officer may use reasonable force, if necessary, in the exercise of the power.

Code C (with effect from 31 January 2008) was issued pursuant to section 66 and section 67 PACE in connection with the detention, treatment, questioning and identification of persons by police officers. By section 67(10)(a) the failure of a police officer to comply with the provisions of a Code shall not, of itself, render him liable to criminal or civil proceedings but, by subsection (11), the provisions of the Code are admissible in evidence and, to the extent that they are relevant, shall be taken into account.

Code C applies to all detainees at a police station. A custody officer is required to perform his functions as soon as practicable (para. 1.1). The custody officer is responsible for assessing whether the detainee is likely to present specific risks to staff or to herself (para. 3.6). The custody officer is responsible for implementing the response to any specific risk assessment, for example, by reducing opportunities for self harm, by calling a healthcare professional, or by increasing levels of monitoring or observation (para. 3.9). If the detainee is a juvenile the custody officer must, if it is practicable, ascertain the identity of a person responsible for her welfare and, as soon as practicable, inform that person of the circumstances (para. 3.13). If the detainee is a juvenile or is mentally disordered or otherwise mentally vulnerable, the appropriate adult must be informed as soon as practicable (para. 3.15).

Paragraph 4 of Code C deals with search and seizure of the detainee’s property. Paragraphs 4.1 – 4.3 provide:

Action

The custody officer is responsible for:

ascertaining what property a detainee:

has with them when they come to the police station whether on:

arrest …

might have acquired for an unlawful or harmful purpose while in custody:

the safekeeping of any property taken from a detainee which remains at the police station.

Paragraph 4A of the Notes for Guidance accompanying paragraph 4 suggest that “PACE, section 54(1) and paragraph 4.1 require a detainee to be searched when it is clear that the custody officer will have continuing duties in relation to that detainee or when the detainee’s behaviour or offence makes an inventory appropriate”.

Annex A to the Code applies to intimate and strip searches. It is common ground that Part A (which applies to intimate searches) is not relevant to the appeal. Part B states:

The relevance of Code C, Annex A, to the issues before the recorder was that a breach of the code would constitute evidence either that the removal of the claimant’s clothing was unlawful for the purposes of Art 8(2) and section 7 of the Human Rights Act 1998 or that the manner in which the removal was carried out was a disproportionate means of achieving the defendant’s legitimate aim of protecting the claimant from self-harm or worse. The recorder found that while Annex A did not apply to the removal of the claimant’s clothing, the obligation of the defendant, for Article 8 purposes, was to abide by the “spirit” of its provisions.

The first issue for decision is whether Code C, Annex A applies to the removal of a detainee’s clothing for the purpose of seizure of that clothing. The title to section 54 is “Searches of detained persons”. Section 54(1) requires the custody officer to “ascertain” what the detainee “has with” her and empowers him to seize and retain anything, including clothing, that he believes may be used by the detainee to cause injury to herself. For the purpose of ascertaining what property the detainee has with her, by subsection (6), the detainee may be “searched”; she may, by subsection (6A), be searched solely for the purpose of discovering whether she has clothing that she may use to cause injury. But, in either case (subsections (8) and (9)), the search must be carried out by a constable of the same sex as the detainee.

Code C paragraph 4.1 provides that any “search” of intimate parts of the body or any search involving the removal of more than outer clothing must comply with Annex A.

Part B of Annex A applies to a “strip search” defined as a search that involves the removal of more than outer clothing. However, by paragraph 10 a strip search may take place only if it is considered necessary to remove an article which a detainee would not be allowed to keep and which the officer reasonably considers the detainee might have “concealed”. Strip searches should not routinely be carried out “if there is no reason to consider that articles are concealed”.

Section 54(1) provides no explicit authority to search the detainee or to remove clothing - only to “ascertain” what the detainee has with her. But section 54(3) and (4) provide power to “seize” clothing that may be used to cause physical injury. Subsections (6) and (6A) treat the compulsory process by which clothing and other articles may be found and/or seized as a search. Ms Sikand argued that, read as a whole, section 54 contemplates the seizure of clothing pursuant to the power under subsections (3) and (4) as the end result of a “search” conducted under the power given by section 54(6) or (6A), whether the officer is looking for property other than clothing or is seizing the clothing itself. I consider that Ms Sikand is right. In my judgment, reading Code C, paragraph 4 together with section 54, the Code applies to the exercise of all the powers given to custody officers in section 54, including the power to remove and seize clothing under subsections (3) and (6A). It would make little sense for paragraph 4 to apply to clothing retained as a result of search for some other thing but not to clothing removed because it was itself liable to seizure under subsection (4).

Code C paragraph 4 proceeds on the assumption that when performing his responsibility under section 54(1) it may be necessary for the custody officer to require the removal of the detainee’s clothing. Section 54(6A) treats an examination of the detainee in order to “ascertain” whether the detainee has clothing that should be seized under subsections (3) and (4)(a) as a search. While the word “search” may not describe exactly what PS Gilmore ordered in the claimant’s case, in my opinion it was a search for the purpose of section 54 and Code C, paragraph 4. Paragraph 4.1 states that when the custody officer considers it necessary that more than outer clothing should be removed, Annex A applies.

Annex A, paragraph 10 provides that a strip search should take place only when the officer reasonably considers that the detainee may have “concealed” an article that she would not be allowed to keep. Paragraph 10 fails to provide for those situations, anticipated by section 54, in which the custody officer wishes to seize any clothing that may be used by the detainee to harm herself. This is a lacuna in the code, but paragraph 11 of Annex A applies to any strip search, not just to those strip searches carried out in compliance with paragraph 10. Since it is my view that the claimant was searched within the meaning of section 54(6A) and that, by Code C, paragraph 4.1, and Annex A, paragraph 9, she was strip searched, the search was to be conducted, so far as the context allowed, in accordance with Annex A, paragraph 11. It is entirely to be expected that Annex A should protect all those in custody whose clothing is removed under a power given by section 54.

The claimant relies on paragraph 11(a) and (b) of Annex A. It is submitted that the Code prohibited not just the presence of male officers in the room in which the claimant’s clothing was removed, but also their presence in the vicinity from which they could have observed removal of the claimant’s clothing, had they chosen to do so. The purpose of paragraph 11 is to preserve the dignity and well being of detainees whose clothing is removed under the power given by section 54. Accordingly, the removal is to take place in an area where the detainee cannot be observed by those who are not involved in the removal. It was the claimant’s case that she was seen by male officers, despite the fact that, as was conceded in paragraph 5 of the claimant’s first skeleton argument, she had no memory of what occurred after she had been told in the presence of male officers that her clothes were going to be removed. All those officers who were engaged in the claimant’s management gave evidence and in all material respects their evidence was accepted by the recorder.

The evidence was that the claimant was placed in a cell to the right side of the cell corridor leading from the reception area of the police station. The male officers left the cell and stayed in the corridor outside while the claimant was undressed. The door to the cell was ajar (for security reasons) but the claimant was in a position on the floor to the right side of the room, behind the door, so that she could not have been observed by someone who happened to glance through the doorway. While, because the door was ajar, it would have been possible for any person in the vicinity to have entered the cell, the judge found that no officer did so and no officer saw the claimant in a state of undress. Furthermore, while the claimant’s clothing was being removed by the female staff a safety blanket was used to protect the claimant’s dignity.

In my judgment there was no breach of paragraph 11(b) of Annex A. The Annex does not require, and could not reasonably require, that no male officer should be involved in the management of the detained person or that no male officer should be present when the instruction is given to remove the detainee’s clothing. The essential requirement was that the removal should take place in an area where no-one who was not immediately involved, and no male officer, could observe the claimant. That is what took place.

Ms Sikand sought to argue that because the recorder found that Annex A did not apply to the claimant’s circumstances, he failed to examine the question whether there had been a breach of paragraph 11(c). I cannot accept this argument. The recorder made clear that the standard of conduct he expected was that which complied with the spirit, that is, the objectives, of Annex A. In the case of a juvenile or vulnerable detainee, paragraph 11(c) requires that “except in cases of urgency, where there is a risk of harm to the detainee or to others” an appropriate adult must be present (unless the detainee wishes the appropriate adult not to be present). The recorder made an express finding that PS Gilmore acted properly and reasonably when deciding that there was an urgent necessity to dress the claimant in a gown so that she could not use any of her clothes as a ligature. It was shortly after the claimant’s clothes had been removed that efforts were made to trace her mother, with whom she was living. While the recorder did not apply paragraph 11(c) directly to the claimant’s circumstances, he made a finding that established compliance not just with the spirit of the requirement but with the requirement itself.

As to paragraph 11(d) the recorder found that the removal of the claimant’s clothing was performed so as to preserve the claimant’s dignity as far as was possible. The officers acted reasonably and proportionately in the urgency of the situation with which they were confronted.

In the Strasbourg case of Wainwright v The United Kingdom (Fourth Section, Application no. 12350/04, 26 September 2006) a mother and her disabled son were strip searched for controlled drugs when they attended HMP Armley to visit the second applicant’s half-brother who was on remand for a serious offence. The ECtHR found at paragraph 47 that the search was in accordance with the law and pursued a legitimate aim. However, at paragraph 48, the Court found a breach of Article 8 in that the manner of the searches was not proportionate to the legitimate pursued: the prison officers had failed to comply strictly with safeguards designed to protect the dignity of those being searched. One applicant had been required to strip naked and the other virtually so. The search of the first applicant was visible through a nearby window.

In Jaeger v Estonia [2014] ECHR 1574/13 the applicant was a prisoner. He was required on entry to a prison building to expose his genitals in a strip search for contraband tobacco products. At paragraph 48 the Court rejected the applicant’s argument that a specially designated room should have been set aside for the search. The search had to be carried out near the entry to the building in which the search took place. A body search in a stairwell could be acceptable provided that the procedure was carried out with respect for the applicant’s privacy. However, the applicant was searched in a thoroughfare accessed through two doors fitted with uncovered, transparent glass windows. At paragraph 49 the Court found that the manner of interference with the applicant’s right of respect for his private life under Article 8 had been disproportionate.

Ms Sikand argued that the defendant’s failure to comply strictly with the safeguards provided by Code C, Annex A meant that the manner in which the “search” of the claimant was carried was disproportionate. In my judgment, the recorder’s findings demonstrate that the defendant complied with both the spirit and letter of the code. It is not otherwise contended that the defendant was in breach of Article 8. In particular, the grounds did not challenge the recorder’s finding as to the quality of the custody officer’s decision under section 54, the immediacy of the risk of self-harm, or the availability of short term measures other than the removal of clothing.

I concur with the submissions made on behalf of the interveners that children in custody are vulnerable and that special care is required to protect their interests and well being (see, in particular, R (HC) v Secretary of State for the Home Department and Another [2013] EWHC 982 (Admin) per Moses LJ at paragraphs 38 – 50). I am bound to express concern that it should have been thought appropriate immediately to remove the clothes of a distressed and vulnerable 14 year old girl without thought for alternative and less invasive measures to protect her from herself, but in the absence of challenge to the judgment on wider grounds it does not seem to me that the appeal can succeed.

Had I reached the conclusion that Code C, Annex A did not apply to the removal of the claimant’s clothing I would not have accepted that the removal was, for that reason, unlawful. This was a claim for damages for breach of the claimant’s Article 8 right to respect for her private life. Section 54 PACE provided PS Gilmore with the power to seize the claimant’s clothing in very limited circumstances, one of which was to prevent the claimant from harming herself. There is no issue between the parties that this was the legitimate reason for the admitted interference with the claimant’s Article 8 right to respect for her private life; nor is there any challenge to the judge’s finding that the action taken was an urgent necessity. The sole remaining issue is whether the circumstances of the removal constituted a proportionate exercise of the power. Upon the recorder’s findings as to the circumstances of the removal, summarised at paragraphs 37 – 40 above, it seems to me there was no room for a finding that the manner in which the legitimate aim was pursued was disproportionate.

I would dismiss the appeal.