Weightmans acts for the successful Chief Constable in important Court of Appeal case regarding custody officers’ powers to remove detainee’s clothes

Matthew Carter -v- the Chief Constable of Essex Police [2025] 

Executive summary

The Court of Appeal has confirmed that a custody officer’s relevant belief for the purpose of section 54(4)(a) of the Police and Criminal Evidence Act 1984 (‘PACE’) must be genuine but does not need to be based on reasonable grounds.

The claim

The claimant claimed damages including aggravated and exemplary damages for assault. Following a five-day trial before Recorder Dagnall, the majority of his claim was dismissed. The judge, however, found that the force used to restrain the claimant to remove his clothing whilst he was in custody was unlawful because the custody officer did not have reasonable grounds to believe that the removal of his clothing was necessary.

The High Court allowed the Chief Constable’s appeal. Spencer J held that the county court was wrong to import a test of reasonableness and, in any event the custody sergeant in this instance did have reasonable grounds (overturning a finding of fact by the court of first instance). Our update on the High Court’s decision can be found here.

Law

Section 54(4)(a) of PACE provides a custody sergeant with the power to seize clothes and personal effects if they believe they may be used for four specified purposes – including if they may be used to cause harm.

The claimant sought to persuade the court that reasonableness ought to be read in because of the interference with the detainee’s Article 3 and Article 8 rights.

The defendant submitted that the legislation ought to be given its ordinary literal meaning (which did not include a reasonableness test). The omission of reasonableness was deliberate given that it appears elsewhere in PACE (most notably at s54(4)(b) – seizing clothes as evidence of a criminal offence).

Decision

The Court of Appeal rejected the claimant’s appeal. In the leading judgment, the Lady Chief Justice held:

1. The word reasonable does not appear in s54(4)(a). The legislation must be given its ordinary and natural meaning which accords with the legislative purpose. Reasonableness cannot be implied when it does appear elsewhere in PACE. Therefore, its omission must have been deliberate.
2. The removal of a detainee’s clothing does engage Articles 3 and 8 of the ECHR, but the Human Rights Act 1998 requires s54(4)(a) PACE to be read in a human rights compliant way so far as is possible. What is possible requires respect for the boundary between interpretation (which is a matter for the courts) and legislative amendment (which is a matter for Parliament). Here, it would be a matter for Parliament.
3. Section 3 of the Human Rights Act 1998 (to read legislation in a Convention Right compliant way) is not engaged in every case where a detainee’s clothing is removed. The problem this would pose to custody officers is that they would be required to only have actual belief if removing a detainee’s belt (for example) but would need to have reasonable belief if removing more clothing. The existence of a variable interpretation of a single phrase would not only be “undesirable” but also remarkable, bringing with it an element of uncertainty.

Despite finding for the police in respect of this ground of appeal, the Court of Appeal went on to find that the High Court was right to overturn the county court’s decision because it contained “a number of flaws”.

Comment

This case will be welcomed by custody officers across the country who can confidently direct that a detainee’s clothing be removed so long as they have a belief that it will be used to cause injury, damage property, interfere with evidence or assist an escape.

The threshold for use of this power is rightly low given the challenging environment in which custody officers have to operate. Custody officers are entitled to take a precautionary approach if a prisoner is obstructing their ability to undertake the necessary checks and risk assessments because the consequences could otherwise be grave.