Abstract
Keywords
The appellant was a 52-year-old male at the time of the incident in question. He had been drinking in a pub on the eve of his partner’s funeral and had become involved in an altercation with two women. He was arrested on suspicion of having assaulted them and taken to a police station. Initially, he had been placed in a holding cell because the custody suite was busy. Whilst there, he made several requests to use the toilet, which were refused by officers because they needed the permission of the custody officer to allow him to leave the cell. As a result, the appellant urinated himself. When he was brought before the custody desk to be booked in, he was handcuffed at the front and in an agitated state (Phase 1). He started shouting his innocence and repeatedly declined to answer any of the custody officer’s risk assessment questions. Following an initial restraint, he was eventually taken to the floor in the custody suite by seven police officers, struck several times and placed in leg restraints and handcuffed behind his back. During the course of the struggle, he bit the middle finger of one of the officers, causing a tear in a blue latex glove which the officer was wearing.
The appellant’s behaviour had caused the custody officer to shout ‘Cell 26’, which constituted a direction to other officers to take the appellant to a cell in order to forcibly remove his clothes under the authority of s.54(4) of the Police and Criminal Evidence Act 1984. This provides: ‘(4) Clothes and personal effects may only be seized if the custody officer – (a) believes that the person from whom they are seized may use them – (i) to cause physical injury to himself or any other person; (ii) to damage property; (iii) to interfere with evidence; or (iv) to assist him to escape; or (b) has reasonable grounds for believing that they may be evidence relating to an offence’ (emphasis added).
It was recorded in the custody record that the purpose of the strip search was to change the appellant into anti-self-harm clothing as he could not be risk assessed. The appellant was taken to Cell 28 where his clothes were forcibly removed by six officers (Phase 2). Cutting off his down coat resulted in the spread of feathers in the cell, which caused the appellant to splutter. He was therefore moved, naked and restrained, to Cell 26 (Phase 3). Here, he was laid down on a mat, and the handcuffs were removed. Inadvertently, an officer had left a blue latex glove behind. When asked to do so, the appellant refused to surrender it, motioned towards his mouth with the glove hidden in his hand, and challenged the police to come and get it. Officers therefore re-entered the cell, and there was an altercation during which the appellant’s head struck a wall, and he received a number of blows on the arm to make him release the glove and open his mouth. The events at the police station were captured on CCTV footage.
The appellant was later taken to hospital for a medical examination and then returned to police custody. As a result, he missed his partner’s funeral. He was medically examined once again and later charged with assault and assaulting a police constable. On the day of his trial, the Crown offered no evidence against him. The appellant subsequently brought a civil claim against the Chief Constable seeking damages for physical and psychiatric injuries, injury to his feelings, special damages, and aggravated and exemplary damages. At the conclusion of a five-day trial, the recorder found in his favour in relation to Phase 2 of his detention and awarded the appellant a total sum of £23,035 (plus interest). On appeal, the appellate judge held, amongst other things, that the recorder had been wrong to conclude that the use of force in removing the appellant’s clothing had been unnecessary. He also expressed the view that if he was wrong on this, the award of damages had nevertheless been too high. The appellant appealed against his decision on various grounds, including that a custody officer’s belief for the purposes of s.54(4)(a) must not only be genuine, but must also be based on reasonable grounds.
Commentary
As Zander notes, ‘prior to PACE there was no statutory basis for searching someone who had been arrested’. Instead, it was the case that ‘the common law recognised the right of the police to do what was necessary to prevent the arrested person escaping, injuring himself or others or destroying evidence’: see The Police and Criminal Evidence Act 1984 (9th edn, 2023, Sweet & Maxwell), para.5-02. These matters are now largely addressed by s.54(4)(a) of PACE, which was directly at issue in Carter. Whilst this provision and s.54(4)(b) are both concerned with the seizure of a detained person’s clothes or personal effects, this is only permitted where at least one of the relevant criteria is satisfied. Thus, for example, shoe laces, a belt or scarf may be seized in order to prevent a detained person from harming themselves whilst in custody (s.54(4)(a)(i)). As Bevan and Lidstone have noted, items ‘cannot be seized for an ulterior purpose such as to punish the person (for example, by the seizure of his glasses)’: see A Guide to the Police and Criminal Evidence Act 1984 (1985, Butterworths), para.7.25. In the case of s.54(4)(b), seizure is confined to circumstances where it is reasonably believed that the clothes or personal effects may be evidence relating to an offence.
The central question of law raised by the appeal in Carter was whether the belief required of a custody officer for the purposes of s.54(4)(a) need only be genuine, or whether it must also be based on reasonable grounds. In order to answer this question, it was necessary for the Court of Appeal to engage in an interpretive exercise, as the recorder and appellate judge had done before it.
The Correct Interpretation of s.54(4)(a)
When interpreting statutory provisions, in addition to focusing on the specific words used, it is often necessary for the courts to have regard to the surrounding context in which the relevant section appears. It is no surprise, therefore, that in her judgment Lady Carr CJ drew attention to other PACE provisions as part of the interpretive process. Her purpose in so doing was to make it clear that the statutory wording in PACE has been chosen deliberately in order to reflect Parliament’s intentions. Thus in s.17(2) of PACE, for example, which is concerned with a police power to enter and search property without a warrant, principally in order to arrest or recapture a person, the power is only exercisable where a constable ‘has reasonable grounds for believing that the person whom he is seeking is on the premises’. An honest and genuine belief that the person sought is on the premises is therefore insufficient; it is only if there are ‘reasonable grounds’ for the belief that the s.17 power is capable of being exercised. This higher threshold reflects the fact that the power of entry and search may be exercised in relation to ‘any premises’, not just those with which the person sought has a direct connection.
Essentially, the same point applies to the general power of seizure which police officers have by virtue of s.19 of PACE. Provided that an officer is lawfully on the relevant premises at the time, they have the power to seize anything so long as they have ‘reasonable grounds for believing’ that it is evidence relating to an offence, and that seizure is necessary in order to prevent it being concealed, lost, damaged, altered or destroyed (s.19(2)(a) and (b)). Once again, a mere belief that the relevant item or article is evidence relating to the commission of an offence is not enough.
In Re Alexander & others [2009] NIQB 20 (which was not referred to in Carter), Sir Brian Kerr LCJ (as he then was) drew a distinction between ‘belief’ and ‘suspicion’ as follows: Belief involves a judgment that a state of affairs actually exists; suspicion that a state of affairs might well exist. (at [14])
Patently, therefore, to believe that something is the case signifies a more certain state of mind than to suspect that it is so. The point is important in the context of PACE given that the Act sometimes sets the bar at the level of ‘belief’, and on other occasions employs ‘suspicion’ as the threshold for a power to be exercisable. Thus, s.24 of PACE, which empowers the police to arrest a person, uses the phrases ‘reasonable grounds for suspecting’ or ‘reasonable grounds to suspect’ on five separate occasions within its confines. However, given that arresting a person involves depriving them of their liberty, the power may only be used where an officer also has ‘reasonable grounds for believing’ that an arrest is necessary for any of the specified reasons (s.24(4) and (5)).
As was the case in relation to ss.17 and 19 of PACE, the suspicion or belief in the mind of an arresting officer for the purpose of s.24 is qualified by the need for it to be based on ‘reasonable grounds’. This contrasts with the position regarding s.54(4)(a) of PACE, which authorises the seizure of clothes or personal effects from a detainee provided that it is merely believed that they may be used for one of a number of specified purposes, including to cause injury to themselves or to another (s.54(4)(a)(i)). Unlike s.54(4)(b), there is no stipulation that the belief must be based on ‘reasonable grounds’. Given the proximity of these two provisions, as well as the other provisions previously referred to, and indeed PACE as a whole, it is surprising that the recorder was willing to read into s.54(4)(a) the need for a custody officer’s belief to be based on reasonable grounds. Interpreting the provision in this way was contrary to the statutory language, which makes clear that the absence of the word ‘reasonably’ was a choice made at the drafting stage of PACE, not an oversight. Moreover, as Lady Carr CJ remarked in Carter, ‘the conclusion that the omission of a requirement of reasonableness cannot have been accidental is entirely in line with the reasoning in Khan v Commissioner of Police for the Metropolis [2008] EWCA Civ 723’ ([2025] EWCA Civ 367 at [38]). In that case, where the police had made a mistake as to whether a house which they had entered and searched under s.18 of PACE was in fact ‘occupied or controlled’ by a person whom they had earlier arrested, the Court of Appeal rejected the argument that it was sufficient if the police had reasonable grounds to believe that the arrestee was connected to the property. In other words, the Court in Khan accorded s.18 a literal construction on the basis that the omission of phrases such as ‘reasonable belief’ and ‘reasonable grounds’ cannot have been accidental ([2008] EWCA Civ 723 at [20]).
Three further points are worth noting with regard to the interpretation of s.54(4)(a). The first is that the Court of Appeal in Carter found further support for its interpretation of the provision in the academic literature. Thus, for example, Zander remarks: There is therefore a difference between (4)(a) and (4)(b). The seizure and retention of items referred to in (4)(a) does not have to be based on reasonable grounds. Seizure of potential evidence does need to be on reasonable grounds. (The Police and Criminal Evidence Act 1984 (9th edn, 2023, Sweet & Maxwell), para.5-03)
Secondly, the Court did not consider that there was any significant benefit to be obtained from examining the pre-enactment background to PACE, especially since the non-ambiguous nature of s.54(4)(a) meant that a key requirement of Pepper v Hart [1993] AC 593 was not met. Finally, Lady Carr CJ felt that there were sound policy reasons why a threshold lower than reasonable belief applied in the present context. This was despite recognising that the forcible removal of clothing ‘may be a significant interference with a detainee’s bodily and psychological integrity’ (at [43]), which engages rights under Articles 3 and 8 of the ECHR. Thus, Lady Carr CJ noted that a custody officer was under a duty to ‘ascertain everything which a person has with them when entering custody in the police station’, that such a duty exists ‘to ensure the safety of all persons (or property) in the custody area’, and that it is often discharged ‘under pressure of time and in difficult circumstances’ (at [44]).
Conclusion
The conclusion in Carter regarding the proper interpretation of s.54(4)(a) of PACE is consistent with the wording of the statute, with academic opinion on the matter, and with the approach which the courts have previously taken when interpreting powers and duties in PACE, as illustrated by the decision in Khan. Whilst the serious nature of what the appellant was subjected to in police custody ought not to be overlooked, it is not for the courts to embellish upon the words of the Act, even though it might be argued that there is a case for a threshold which is higher than mere belief in the present context. If a change in the law is deemed appropriate, which seems unlikely given the underlying policy reasons for the current wording of s.54(4)(a), it is implicit in the decision in Carter that this is a matter for the Home Office to address via the mechanism of legislation, rather than for the courts through a process of interpretation. Had the appeal gone the other way, so that the Court of Appeal favoured the recorder’s interpretation of s.54(4)(a) over that of the appellate judge, it seems likely that a further appeal to the Supreme Court would have followed. However, such an outcome was never a realistic prospect in view of the plain meaning of the statutory words.
