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Use of force in police custody: Chief Constable of Essex Police v Carter

News | Fri 2nd Feb, 2024

Martin Spencer J has today handed down a judgment allowing an appeal by the Chief Constable of Essex Police from a judgment given by Recorder Dagnall sitting in the County Court at Colchester in a claim brought by Mr Matthew Carter.

The claimant was arrested on December 14th 2017 following an altercation in a pub in Southend and was taken to Southend Police Station.  When brought before the custody officer for consideration of authorisation of detention, he was in an agitated state and refused to answer the custody officer’s questions directed towards the carrying out of a risk assessment.  He then turned quickly in the direction of officers who were standing with him at the desk and raised his hands, which were in handcuffs at the front.  The officers construed that as an aggressive movement and took the claimant to the floor.  A struggle ensued, during which the claimant bit the hand of one officer.  His handcuffs were moved to the rear and he was placed in leg restraints.  The custody officer gave a direction that he should be taken straight to a cell, which was understood by the officers restraining the claimant to encompass a direction that the claimant’s clothing should be removed.  The officers carried him to a cell and cut off the claimant’s clothing, leaving him naked in the cell but with a self-harm suit to use if the claimant wished.

The claimant brought proceedings claiming that he had been subjected to unlawful force in three phases: at the custody desk, in the forcible removal of his clothing and subsequently when he struggled with officers who entered his cell to retrieve a latex glove that had been left there.  The Recorder found that the force used in phases 1 and 3 was lawful, but decided that the use of force in phase 2 was unlawful because the decision to remove his clothing was not lawful under s54 of the Police and Criminal Evidence Act 1984.  Sub-section (4) of that section states that “clothing and personal effects may only be seized if the custody officer …. believes that the person from whom they are seized may use them …. to cause physical injury to himself or another person”.  The Recorder held that there was no reasonable basis for any belief that the claimant might use his clothing to self-harm and that the officers should have paused and reflected as to the appropriate course of action.

Allowing the appeal, Martin Spencer J held that the Recorder had misdirected himself in law: paras 46-47.  There is no requirement in s54(4) that the custody officer should have a reasonable basis for a belief that the detainee “may use” his clothing to self-harm or harm others.  PACE made it clear when an officer’s state of mind needed to have a reasonable basis, such as in s17(2)(a) concerning powers of entry without warrant and s24 governing powers of arrest without warrant.  He concluded as follows:

…. the omission of such a criterion from Section 54(4) was deliberate, in order to set a low threshold. Furthermore, one can envisage a clear rationale and good policy grounds for so doing: not only can items of clothing be used as a ligature for a detainee, eg, to hang himself or to asphyxiate a police officer but also this can happen in but a few moments with tragic consequences. For the reasons which Mr Stagg submitted, namely that the custody officer may not have access to sufficient information to make a reasoned judgment and that quick decisions may need to be made for the protection of the detained person and others, it is understandable that the law should set a low threshold of actual and honest belief rather than reasonable belief. ….

He went on to decide that, in any event, the Recorder’s decision that the custody officer did not have reasonable grounds for her decision that the claimant’s clothing should be removed was unsustainable: paras 48-52.  A custody officer was entitled to take a “precautionary approach” where a detainee refused to engage with a risk assessment process.

The judge went on to conclude that the Recorder’s further conclusion that the use of force to remove the claimant’s clothing was not “necessary” within the meaning of s117 of PACE was unsustainable: para 53.  He said:

…. This was a detainee who had refused to answer questions in relation to risk assessment, who had been drinking, who was being uncooperative and whom the officers had reasonably believed needed to be immobilised with rear-stacked handcuffs and leg restraints. In addition, the Claimant had bitten the hand of one of the officers. In my judgment it was wholly unrealistic to leave such a detainee trussed up in a cell in the hope that he might calm down and see reason. Furthermore, Sgt Bailey and the other officers had every reason to believe that there was some urgency in getting the Claimant into an anti-self-harm suit. Although officers had been available for the purpose of restraining the Claimant, it did not at all follow, as the Recorder suggested, that there were therefore sufficient officers to observe the Claimant in his cell whilst he decided what to do and hopefully calmed himself down. In my judgment, the custody sergeant and the officers were justified and had a reasonable belief that the use of force was necessary. ….

This is a welcome decision for police forces.  Serious self-harm by those in police custody is thankfully rarer than in our prisons, but it does occur and it is often very hard to predict who may engage in self-harm and how: see the tragic case of Orange v The Chief Constable of West Yorkshire Police [2001] EWCA Civ 611, [2002] QB 347 for an example of the dire consequences which may ensue.  The risk assessment process is vital to enable custody officers to make informed decisions as to the conditions in which a detainee is held and it is surely reasonable, if a suspect refuses to cooperate with the process, for the custody officer to err on the side of caution.  While the removal of a detainee’s clothing is undoubtedly an unpleasant and degrading experience for the detainee, at least it minimises any opportunity for self-harm.  Custody officers should not have to worry about whether they are liable to end up in the County Court; they should be focusing on how to avoid becoming a witness in a Coroner’s Court.

Paul Stagg of Deka Chambers represented the Chief Constable.

You can read the judgment here.

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