Removal of clothing by police and Article 8 ECHR – Court of Appeal expresses sympathy for vulnerable position of children in custody

9 March 2015 by

logo-orangePatricia Davies (by her mother and litigation friend Zelda Davies) v Chief Constable of Merseyside [2015] EWCA Civ 114 – read judgment

The Court of Appeal has considered the compatibility with Article 8 ECHR of the police’s removal of a 14 year old girl’s clothing after she had been arrested and taken to a police station.


The background facts were that the claimant was arrested outside a kebab shop in Argyle Street, Birkenhead. Her behaviour was uncontrolled and aggressive and she was handcuffed and taken to Wirral police station. The custody officer ordered that her clothing should be removed because she was a suicide risk. She was taken to a room by three female officers who removed her 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 brought a claim against the police seeking damages for assault on the ground that the police officers had used excessive force in restraining her on arrival at the police station. She also sought damages for breach of her right ot respect for her private life under Article 8 ECHR and claimed that the police had breached Code C of the Police and Criminal Evidence Act 1984 Codes of Practice. Her claim was rejected after a trial at Liverpool County Court and she appealed to the Court of Appeal.

Just for Kids Law and Children’s Rights Alliance for England intervened in the appeal by way of written and oral submissions, reminding the court of the vulnerable position of children in police custody and the UK’s international obligations under the UN Convention on the Rights of the Child.

The parties agreed that the forced removal of the claimant’s clothes at the police station constituted an interference with her right to respect for her private life under Article 8 ECHR.

The judgment

The Court of Appeal held that PACE Code C, Annex A applied to the removal of a detainee’s clothing for the purpose of seizure of that clothing. The Code applied to the exercise of all powers given to custody officers in section 54 of PACE, including the power to remove and seize clothing. Accordingly the search had to be conducted, so far as the context allowed, in accordance paragraph 11 of Annex A that the search shall take place in an area where the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex except an appropriate adult who has been specifically requested by the detainee.

The claimant submitted that the police had breached these requirements by male police officers being present in the vicinity from which they could have observed removal of the claimant’s clothing, had they chosen to do so (ie the corridor outside the cell). This was rejected by the Court, which held that the essential requirement that the removal should take place where no one who was not immediately involved, and no male officer, could observe the claimant, had been respected. While the door to the cell was ajar (for security reasons), the claimant was in a position on the floor to the right side of the room, so she could not be observed by someone who happened to glance through the doorway. While it would have been possible for any person in the vicinity to have entered the cell, the judge below had found that no officer did so. A safety blanket had also been used to protect the claimant’s dignity while her clothing was being removed.

The Court also rejected the argument that Article 8 had been breached. The judge below had found, in effect, that the defendant had complied with both the spirit and the letter of Code C and the claimant did not otherwise contend that the defendant was in breach of Article 8.

Despite rejecting the appeal, Lord Justice Pitchford expressed his agreement 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…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.

Response to the case

Responding to the judgment, Paola Uccellari, Director of Children’s Rights Alliance for England, said

Being stripped by someone in a position of power is inevitably a traumatic and distressing experience for a child. This measure must only be used as a last resort. If it’s being used as a matter of routine, or unnecessarily, it would breach a child’s human rights. Frighteningly, CRAE research shows that the numbers of children being stripped has doubled between 2008 and 2013. Over-reliance on this practice needs to be looked at as a matter of urgency.’

Shauneen Lambe, Director of Just for Kids Law, said

We were alarmed that a police force took the position that when a child is being stripped for their own protection, rather than looking for contraband, the same safeguarding protections did not apply and welcome this clarification from the Court of Appeal that they do. Along with CRAE we have asked the government to undertake a review of why there appears to be such an increase in children being stripped by the police.

In January, 23 leading children’s rights and youth justice experts, including the Children’s Commissioner for England and Deputy Children’s Commissioner for England, called for stripping of children in police stations to be used as a last resort. The letter read as follows:

Strip-searching is a humiliating, degrading and frightening experience for anyone, but especially for children who come into contact with the police, a high proportion of whom may have experienced abuse and/or mental health difficulties. This is graphically illustrated by a case being heard by the court of appeal on Friday in which a 14-year-old girl with a mental health condition was stripped in a cell without her mother or other appropriate adult present.

Last year saw welcome changes in children’s prisons, so that children are only strip-searched where there is a good reason for doing so. This followed a pilot scheme that showed the new approach caused little variation in serious incidents, contraband or violence.

However, there has been no equivalent review of the strip-searching of children in the police station. This is despite the fact that far more children come into contact with the police than go to prison, and freedom of information requests show that police strip-searching of children as young as 12 doubled between 2008 and 2013.

We are calling on the government to launch an urgent review, to make sure children are only strip-searched at the police station as a last resort and that when this happens it is subject to proper safeguarding and child protection measures, such as making sure a child’s parent or another appropriate adult is present. These changes are vital to protecting children’s human rights to be kept safe from harm.

Since the judgment, Her Majesty’s Inspectorate of Constabulary has published a report on the welfare of vulnerable people, including children in custody.  HMIC, assisted by HMI Prisons, the Care Quality Commission and the Healthcare Inspectorate Wales, inspected five forces and three boroughs in the Metropolitan Police Service. Inspectors took into account findings from the rolling programmes of custody and child protection inspections, and identified a number of themes with potentially national implications.

Inspectors found that children and mentally unwell people were being held in custody because no alternative provision from other care services had been identified and that the measures of control the police have at their disposal are designed more for those who are violent through ill-will rather than for frightened children, or those who are agitated because of mental ill-health.

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