Abstract
Any system of criminal procedure committed to due process will seek to temper the investigation of suspected crime with regard to the proper interests of the suspect, particularly where the suspect is not yet an adult. It is trite to observe that some tension is inevitable between police powers to conduct their investigative responsibilities in a timely and effective manner and the individual’s human rights, with obvious potential for grey areas of ambiguity and uncertainty. In this respect the United Nations Convention on the Rights of the Child Article 40 helps to set the bar by requiring State Parties to recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth . . .
a right augmented in Article 16 by a child’s right not to ‘be subjected to arbitrary or unlawful interference with his or her privacy’. 1
Dignity and privacy have particular relevance in the context of managing and searching a youthful suspect, police powers of search being a core investigative avenue both in the securing of evidence and in protecting the investigator, those in the immediate vicinity, the wider public and, not least, the young suspect, and in preventing escape. A search or the protection of the suspect’s person may need to be intrusive to identify whether anything carried has been secreted so as to reduce the likelihood of discovery or because it is believed that their clothing may be intrinsically potentially harmful. 2
PACE in Code
In the jurisdiction of England and Wales, police powers are governed in detail by the statutory generic Codes that form an intrinsic part of the Police and Criminal Evidence Act (PACE) 1984, specifically in this context: Code A (powers to stop and search) and Code C (detention, treatment and questioning); the latter augmented by Code H in respect of those detained under the Terrorism Act 2000. These provisions (including all-age applicability) can be briefly summarised as follows, noting first the overarching effect of PACE 1984 s.117 that where any provision of PACE confers a power on a police officer which does not require consent, the officer may use reasonable force, if necessary, in the exercise of that power.
Stop and Search
All stops and searches of persons detained for that purpose on reasonable grounds for suspicion, undertaken at locations away from a police station, ‘must be carried out with courtesy, consideration and respect for the person concerned’ (Code A para. 3.1).
There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves (save where an item is worn to conceal identity) (Code A para. 3.5).
Where on reasonable grounds it is considered necessary to conduct a more thorough search (e.g. by requiring a person to take off a T-shirt), this must be done out of public view (e.g. at a police station if nearby). Any search involving the removal of more than an outer coat, jacket, gloves, headgear or footwear (or any other item concealing identity) may only be made by an officer of the same sex as the person searched and may not be made in the presence of anyone of the opposite sex unless the person being searched specifically requests it (para. 3.6).
Searches involving exposure of intimate parts of the body must not be conducted as a routine extension of a less thorough search, simply because nothing is found in the course of the initial search. Searches involving exposure of intimate parts of the body may be carried out only at a nearby police station or other nearby location which is out of public view (para. 3.7).
Detained Persons at a Police Station
The designated ‘custody officer’ (responsible for the oversight and care of detained persons) at a police station is required to ‘ascertain everything which a person has with him’ (PACE 1984 s.54(1)). ‘Clothes and personal effects’ may be seized only if the custody officer believes that the detainee may use these to (i) cause physical injury (either to themselves or others), (ii) damage property, (iii) interfere with evidence, or (iv) assist them to escape (s.54(4)(a)), or the custody officer has reasonable grounds for believing that such item(s) may be evidence relating to an offence (s.54(4)(b)). The detainee may be searched at any time in order to ascertain whether ‘he has with him anything which he could use for any of the purposes specified in’ s.54(4)(a) (i)-(iv) (s.54(6A)).
Strip searches (defined as ‘a search involving the removal of more than outer clothing’, including shoes and socks – Code C Annex A Part B para. 9).
A strip search may be conducted only if it is considered necessary to remove an article which a detainee would not be allowed to keep and the officer reasonably considers the detainee might have concealed such an article. Strip searches shall not be routinely carried out if there is no reason to consider that articles are concealed (Part B para. 10).
The search must be authorised by the supervising custody officer and conducted with proper regard to the detainee’s sensitivity and vulnerability, every reasonable effort being made to secure their co-operation and to minimise embarrassment, 3 informing the detainee of the reason for the search; in an area where the detainee cannot be seen by anyone who does not need to be present and undertaken by a member of the opposite sex; ‘normally’ without requiring the detainee to remove all their clothes at the same time; as quickly as possible, the detainee being allowed to dress as soon as the search is completed.
Whenever a strip search involves ‘exposure of intimate body parts’ at least two persons (other than the detainee) must be present, except in ‘cases of urgency’ where there is ‘risk of serious harm to the detainee or others’. Where the detainee is a ‘juvenile’ (aged under-18) one of the persons must be ‘the appropriate adult’ (AA), 4 unless the juvenile signifies in the presence of the AA that they do not want the AA present (Part B para. 11). A visual examination may be made of the detainee’s genital and anal areas provided no physical contact is made with any body orifice.
Intimate searches (permitted by PACE 1984 s.54(7) and defined as ‘the physical examination of a person’s body orifices other than the mouth’ – Code C Annex A Part A para. 1).
An intimate search may be conducted only if authorised by an officer of inspector rank or above who has reasonable grounds for believing that the person may have concealed on themselves (i) anything which they could and might use to cause physical injury to themselves or others at the station, or (ii) a Class A drug 5 which they intended to supply to another (Part A para. 2(a)). In the case of a drug offence search the detainee’s consent must have been given in writing, following a warning that if they refuse without good cause their refusal may harm their case if it comes to trial. A juvenile’s consent is valid only if their parent’s or guardian’s consent is also obtained.
An intimate search may be conducted only by a registered medical practitioner or registered nurse, save in instances within (i) above where an officer of at least inspector rank considers this is not practicable and authorises a police officer to undertake the search instead but this must be deemed a ‘last resort’ where the risks arising from leaving any suspected item in situ outweighs the risks associated with search/removal.
The AA provisions applicable in instances of strip search (above) apply to intimate searches and any consent given for a drug offence search (above) must be obtained in the presence of the AA. Where the juvenile is aged under-14, their parent’s or guardian’s consent is sufficient.
The Law in Action: The Case of PD
Perhaps unsurprisingly, strip searching has attracted greater critical attention than intimate searches, though judicial intervention and interpretation has been very limited. 6 The judgement in PD v Chief Constable of Merseyside Police [2015] EWCA Civ 114 did not involve a search as such, falling within the ambit of PACE 1984 s.54(4)(a)(i), but is nevertheless instructive. Called to respond to a disturbance at a fast-food shop in September 2010 the police encountered PD, a very drunk girl aged 14 shouting abuse. When she could not be calmed and was turning her aggression on the officers, she was handcuffed and removed to a police station where she continued to scream incoherently and be resistant, so that she was subjected to a restraint hold to reduce the risk of her spitting at police officers. The custody officer was able to establish that she had been detained some 3 months previously on arrest for causing damage at her home when she had overdosed and cut herself. In light of this, he decided that as a matter of urgency PD’s clothing should be removed, not for search purposes but to reduce the risk of suicide by using her clothing as a ligature, and that she should be provided with a safety gown. Three female officers undertook that task, overcoming her resistance but using a safety blanket to preserve her dignity as far as possible, with male officers standing by in the corridor outside. Although the door to the room used was left ajar, it was established that those men would not have been able to observe PD through that process. No AA had been present, given the ‘urgency’ deemed at stake. On being then left in a cell, PD had briefly continued trying to self-harm before calming herself and falling asleep.
It was later confirmed that PD had experienced a very difficult childhood in which she had endured sexual and physical abuse. Child psychologists concluded that she probably manifested post-traumatic stress disorder and a complex conduct and emotional disorder, with associated alcohol and drug misuse.
Although she did not challenge the lawfulness of her arrest, PD subsequently claimed for damages, in part because her right to privacy under Article 8 of the European Convention on Human Rights 7 had been breached. On her ensuing appeal against the dismissal of her claim at County Court, 8 she did not seek to challenge the judge’s findings that she had not been assaulted and that the custody officer had acted reasonably and proportionately in deciding that there was an urgent need for the removal of her clothes. She focused her appeal on the rejection of her Article 8 claim and on the judge’s view that PACE Code C Annex A did not apply to the forced removal of her clothing.
Dealing first with the latter issue the Court of Appeal acknowledged a lacuna in the PACE provision law in that para. 10 of Code C Annex A Part B ‘fails to provide for those situations, anticipated by s.54(4)(a) in which the custody officer wishes to seize any clothing that may be used by the detainee to harm herself’ but determined that ‘it is entirely to be expected that Annex A should protect all those in custody whose clothing is removed under a power given by s.54’. Notwithstanding that the judge had been in error in that respect, the Appeal Court was satisfied that the Code had not been breached. As regards the adjacent presence of the male officers, The Annex does not require, and could not reasonably require, that no male officer should be involved in the management of the detained person . . . The essential requirement was that the removal [of their clothing] should take place in an area where no-one who was not immediately involved, and no male officer, could observe [the detainee].
The Code and Annex had been observed both in spirit and in the letter.
As regards Article 8, the Court of Appeal acknowledged that PD’s rights had been engaged.
9
However, there was no issue between the parties that there had been legitimate reason for the admitted interference with her right to respect for her private life; nor any challenge to the judge’s finding that the action taken had been in response to an urgent necessity. There was also no basis for finding that the manner in which the legitimate aim was pursued had been disproportionate. That said, Pitchford LJ considered himself 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.
However, he concluded that ‘in the absence of challenge to the judgment on wider grounds it does not seem to me that the appeal can succeed’. In the same critical vein, an Inspectorate report on the treatment of vulnerable persons in police custody, published in the month following the determination of PD’s appeal (HM Inspectorate of Policing (HMOP), 2015), noted that though, for the most part, strip-searches were undertaken appropriately among detainees interviewed, there had been a ‘strong view that strip-searches were undignified and degrading’ and not necessarily justifiable. The Police Inspectorate expressed concern particularly about the methods used to reduce the risk of people harming themselves, such as the removal of clothing, commenting that the measures of control the police have at their disposal are designed more for those who are violent through ill will, rather than those who are agitated because of mental distress, or who are frightened children. . . . The use of inappropriate techniques can increase the risk of further distress and harm. . . . A significant finding from this inspection is that police officers are trying to respond to children and those suffering from mental health crises in an environment and with policing tools, skills and knowledge that are wholly unsuited to the task.
‘Child Q’
A decade on from the episode featuring in PD, the police were called to attend a London school in December 2020 where teaching staff suspected that Q., aged 15, might be in possession of cannabis as she appeared to smell strongly of that drug. She had denied using or having any drugs in her possession and a search of her bag, blazer, scarf and shoes by school staff had revealed nothing to the contrary. A month beforehand similar suspicions had been raised because Q. had appeared intoxicated, with an accompanying aroma of cannabis. Her mother had been contacted and had attributed her reported state to late night studying the preceding evening. No further action had been taken save a warning that ‘if this behaviour continues or that if she is found with weed/drugs on her she will not be able to continue her place with’ the school. Someone known to Q. had previously been excluded from the school on those grounds.
On this further occasion four officers attended, two being female, and Q. was required to miss an educational exam she had been scheduled to take and escorted to the school’s medical room where she was fully strip-searched by the female officers while teachers remained outside the room. She was compliant throughout. She was menstruating and was required to remove her sanitary protection, along with all her underwear, exposing ‘intimate body parts’. It is not apparent what steps were taken to minimise her exposure to indignities. 10 Q.’s mother was not contacted ahead of the search and no AA attended. No drugs were found. 11 There was nothing to suggest that the officers at the scene had consulted a supervising officer.
This experience is understood to have had a profound impact on Q. and came to the attention of her local Borough’s Safeguarding Children Partnership, prompting the commissioning of a Practice Review (Gamble and McCallum, 2022). Among their findings, in précis:
Although Q.’s school had initially demonstrated ‘good curiosity’ and ‘an alertness to potential indicators of risk’, its staff had ‘insufficient focus’ on Q.’s safeguarding needs when responding to concerns about suspected drug use. Their focus appeared to have been on whether Q. had breached the rules as opposed to what her suspected substance misuse might mean for her safety and welfare. They should have communicated with the relevant local authority’s Children’s Services department to make a referral or seek advice. Having opted to refer instead to the police they had then ‘deferred to the authority of the police on their arrival at school’ and ‘should have been more challenging to the police, seeking clarity about the actions they intended to take’. 12
Application of the law and policy governing the strip searching of children can be variable and open to interpretation. Although the officers in Q.’s case had believed they were operating in line with law and policy the circumstances and suspicions they were dealing with ‘should not have led an officer to conclude a strip search on school grounds was the right course of action’. 13 Their actions did not have regard to Child Q’s safeguarding or welfare, ‘were not the most proportionate tool available’, and ‘did not keep the degree of intrusion to the minimum’.
The absence of any specific requirement to seek parental consent (in Q.’s instance, not initiated either by the school or the police) when strip searching children undermines the principles of parental responsibility and partnership working with parents. The Practice Review recommended that the Home Office and the National Police Chiefs Council should seek to strengthen PACE Code C ‘to better define the engagement of parents/carers/guardians when strip searches that involve the exposure of intimate parts of the body are undertaken on children’.
Taking a binary approach as to whether a crime has been committed or not runs the risk that important aspects of a child’s life will be missed. ‘If children are suspected of carrying drugs or weapons, it is more likely than not that they are being exploited in some way or form’. While stop and search powers enable officers to allay or confirm suspicions about individuals without exercising their power of arrest, those powers ‘should equally be used as a tool to identify risk and give children the help and protection they might need’.
Racism (whether deliberate or not) was likely to have been an influencing factor in the decision to undertake a strip search of Q., as she (a Black child) and her family firmly believed. ‘Had Child Q. not been Black, then her experiences are unlikely to have been the same’. In support of that interpretation, the Review referred to the likely contribution of ‘adultification bias’, whereby children from Black, Asian and minoritised ethnic communities, particularly Black children, ‘are perceived as being more “streetwise”, more “grown up”, less innocent and less vulnerable than other children’, and thus ‘viewed primarily as a threat rather than as a child who needs support’ (National Society for the Prevention of Cruelty to Children (NSPCC), 2022), also citing recent US studies (Blake and Epstein, 2019; Epstein et al., 2017).
Concluding Note
The grossly disproportionate actions of the police in the instance of ‘Child Q’ prompted wide critical dismay. But was her experience an exceptional aberration? A Freedom of Information initiative by the BBC requesting data from all police forces in England and Wales on the use of strip searches involving all children aged under-18 yielded a figure of ‘more than 13,000’ in the years 2017–2021 (BBC News, 2022) derived from the 31 (out of 44) forces who responded. ‘Child Q’s’ case was referred to the Independent Office for Police Conduct (IOPC) (2022) which, in making ‘best practice’ recommendations to the force directly responsible, the Metropolitan Police (‘the Met’) indicated that it had received a further 11 referrals from the Met relating to separate incidents between December 2019 and May 2022, ‘all involving children aged 14 to 17 who were strip-searched by officers in custody, or more intimate searches carried out outside custody’. 14
One of those referrals involved another girl aged 15, identified as ‘Olivia’ and a child of colour, understood to have learning difficulties, autism and a history of self-harming, who came to police attention because boys with whom she and her friends had argued had alleged an attempted robbery at knifepoint. Although officers had found nothing to substantiate this complaint, she was arrested. She handed in a small blade that she reported keeping for self-harming. After she had spent 20 hours in police custody and she was permitted to shower as she was menstruating, a sharpened stick – also used for self-harming – fell from her clothing, This prompted a decision to handcuff her and strip-search her by force, cutting off her underclothing in the presence of male officers. She was later prosecuted for possession of a weapon but acquitted when the youth court was satisfied that the item was intended for self-harming (BBC News, 2022).
Wishing to establish whether ‘Child Q’ instanced ‘a more systemic problem with the use of strip searching’, the Children’s Commissioner for England (August 2022) secured data for strip-searching of children by the Met 2018–2020, indicating that in that 3-year period –
650 children were strip-searched, a quarter being aged between 10 and 15, over 95 per cent being male (of whom 73% were aged 16–17);
an AA was not present during 23 per cent of those searches;
of boys searched, 58 per cent were Black (in 2018 it was 75%); 20 per cent were White;
a child’s ethnicity ‘did not seem to impact the likelihood of an AA being present’, though in 2018 Black boys were the subject of two-thirds of searches in the absence of an AA.
In sum the Commissioner was ‘not reassured that a robust system of safeguarding for children strip searched by police across all forces in England’ is in place and, in light of emerging evidence of ‘poor safeguarding practice’, ‘considers that further change is needed at the national level to ensure appropriate safeguards are in place and applied consistently’. Although regulations need to afford the police a degree of discretion, the current Codes of Practice are not proving sufficiently robust in protecting children’s welfare interests and should require and promote ‘thought for alternative and less invasive measures’. 15
Footnotes
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.