PD v Chief Constable of Merseyside

Does anything get any more complicated and sensitive than the issue of whether, when and how police officers could strip search a child of all their clothing whilst they are in police custody, without waiting for a parent or guardian and when they are intoxicated, violent and with a background of self-harm and mental distress?  Article 8 of the European Convention covers the right to a private and family life and this week, the Appeal Court ruled that there was no violation of a 14yr old girl’s rights after she was strip searched in police custody.

Merseyside Police arrested a young woman for being drunk and disorderly in a public place after a complaint from takeaway staff about abusive behaviour.  The young woman was aggressive and resistant upon her arrest and was handcuffed.  During her journey to the station, she continued to abuse the officers and she was further restrained when she appeared to be about to spit at the officers, instead she kicked out at them as she was brought into the custody office.  The custody sergeant was able to ascertain that the girl had been arrested on a previous occasion and it had been necessary to use leg restraints on arrest and to remove her clothing to prevent her from using it to hurt herself whilst detained. On this occasion, the custody officer felt that there was an urgent necessity to remove those items from her that would be used to cause herself harm so the male police officers who had arrested her removed to her a private room where two female detention officers and a female police officer took control of the ‘strip search’ which the custody sergeant had authorised.  Her clothing and body jewellery were removed and she was provided with something described as a safety gown, to ensure she did not remain naked after the clothing had been taken. All of this happened before a parent or guardian had even been notified of her arrest.

The young woman brought up various legal issues in the original court case, including a failure to adhere to the Mental Capacity Act and disability discrimination in addition to claims of excessive use of force and breaches of Code C to the Code of Practice to PACE which would amount to an Article 8 ECHR violation.  Having lost that original case, this Appeal focussed on issues around the Code of Practice and Article 8 – the strip search in custody and technicalities about whether Annex A of Code C to the Code of Practice applied.


The Police and Criminal Evidence Act 1984 covers searching after arrest – the police have a duty to assess what a detained person has in their possession and to take a variety of decisions about it.  This would cover the safekeeping of certain items (like money), anything that may be evidence of an offence and of course, seizure until release of any item that could cause harm to the detainee or others.  When detainees are searched, they can only be required to remove their ‘outer clothing’ – which can include jacket, hat, gloves and shoes.  Anything more than that and it is what the law calls a ‘strip search’.  Unsurprisingly, there are extra safeguards in place for anyone who is strip searched and even more for children and vulnerable adults.  Any strip search must be conducted by at least two officers of the same sex as the detainee, in a private room and the conduct of the search should be done as sensitively as possible whilst ensuring that the detainee is not fully naked at any stage.  Typically, officers would require someone to remove their upper clothing first, before replacing it and removing their lower clothing.  Anything found during the search can be seized if the criteria in s54(4) PACE are satisfied.

One difficulty in this case, is that it was the clothing itself that was believed to be the thing likely to cause harm.  In fairness to these officers, most of us have experience of people in custody being quite determined to harm themselves or the police officers who have arrested or detained them – I’m not going to list the various things that have been tried.  Suffice to say, most officers would agree that the only way to stop some people from using their clothing inventively is to remove it from them, completely.  This was one of the legal points under debate in this case and the Court of Appeal have now clarified it for us.  Merseyside Police were not ‘searching’ for items that they thought the girl had secreted about her clothing, but seizing her clothing.  As such there was debate about whether Annex A applied to this incident – you can find Annex A on p50 of the Code of Practice.  Merseyside Police had originally argued that they weren’t ‘searching’ per se, but removing clothing.  Therefore, do the various safeguards of Annex A apply? This is relevant to the overall Article 8 ECHR challenge because everyone agreed that strip searching someone does interfere with Article 8 rights and therefore it can only occur in a process determined in law.  The Code of Practice would suffice for this purpose, but if the Code did not apply to this particular incident – seizure rather than search – then it could represent a human rights violation.

A final point from the case about appropriate adults:  anyone under the age of 18 is entitled to be supported in custody by an appropriate adult which would normally be the parent or guardian of a child under arrest.  Where possible, strip searching should be delayed until the arrival of the appropriate adult so that they may decide whether or not they should be present during the process.  In these circumstances, the custody officer had pressed on without waiting and this is something that caused the judges to express their concern, notwithstanding their ruling that the police acted lawfully and that everyone accepted they did so with the best intentions to safeguard this young woman exhibiting very challenging behaviour.  Their ruling argued that Annex A does apply to a process that is intended purely to seize clothing, rather than to look for other items.

As such, seizure of clothing is a strip search for the purposes of PACE, Annex A does apply and this does represent an interference with the detainees Article 8 human rights.  That said, it was a justified, proportionate intervention prescribed in law. I’ve given some thought to the judges’ concern that this was done immediately after arrival and can only imagine that they may be hinting at whether or not the detainee could be kept under constant 1:1 observations – or even 2:1 – until such time as the girl’s parent / guardian could be contacted and an arrival time estimated?  Perhaps the judges would have had less concern if she had been kept in handcuffs pending the arrival of an appropriate adult and then searched?  What seems clear, is that their concern about the steps taken did not prevent them from finding that Merseyside Police had acted lawfully and with the correct intentions to keep this young woman safe.  The full Court of Appeal judgment in this case is not overly long and I would particularly encourage all custody sergeants and duty inspectors to read it, in full.


I want to finish with an observation of my own that wasn’t mentioned in court – which may indicate no-one was concerned about it.  But if this young woman had been detained under s136 of the Mental Health Act, would we look at this case differently?  Perhaps the arresting officers saw intoxication and abusive, disorderly conduct and did not have time to find out more information or check background before acting – I’m speculating here, because I don’t know.  But if they had known this young woman’s background at the point of making the detention decision, would they have opted for section 136?  It suspect it’s likely.  Does this alter how we see the case?  If we return to the Code of Practice, para 9.5 demands that the custody officer consider whether or not the detainee can receive appropriate clinical attention for physical or mental disorder.  It seems obvious that this girl was highly distressed by her experience once arrested – she began pulling out her own hair and banging her head off the wall of the cell.  At what point does such mental distress become so serious as to warrant removal to hospital?

Given her arrest by the police was for a suspected criminal offence, the only hospital to which she could be removed would be A&E.  A mental health ‘Place of Safety’ would be highly unlikely to agree to receive her because she was not detained under the Mental Health Act, although it would be lawful for them to receive someone transferred under PACE.  So the broader questions here about our social responses to mental distress when it is mixed with presentations which amount to offences are about whether a decision taken by a police officer in a hurry, without access to all relevant information, should be the thing that determines our ability to ensure a safe environment for someone in extreme mental distress.  If this girl’s clothes were removed and she continued to self-harm, the only real way to stop that is to physically stop her from doing so – restraint, possibly handcuffs.  We know that doing this on a prolonged basis will take us towards ‘medical emergency’ territory but it was only yesterday that I was receiving questions on Twitter from an ED doctor about the removeal of drunk and aggressive ‘patients’ to hospital.  Does drunk, aggressive and mentally distressed change anything about what our response should be?  And what if it is a child, who deserves extra protections, by domestic, European and international law?

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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