Removal of detainees’ clothing in police custody – Carter v Chief Constable of Essex Police

The judgment of the Court of Appeal has been handed down today dismissing an appeal by Mr Matthew Carter. The court’s judgment has the neutral citation number [2025] EWCA Civ 367.

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. Following a five day trial in the County Court at Chelmsford, Recorder Dagnall 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)(a) 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.

On appeal to the High Court, Martin Spencer J held in his judgment [2024] EWHC 126, [2024] 1 WLR 3848 that the Recorder has misdirected himself in law in holding that the power under s54(4)(a) of PACE could only be exercised if the custody officer had a reasonable basis for his or her belief. He also held that, in any event, the Recorder had been wrong to find that the custody officer did not have a reasonable basis to think that Mr Carter might use his clothing to harm himself, and that the use of force to remove his clothing was not necessary.

Mr Carter appealed, relying on three grounds of appeal in relation to liability. The first was that the Recorder had been right to proceed on the basis that the power under s54(4)(a) could only be utilised if there were reasonable grounds for the custody officer’s belief that the claimant may harm themselves with their clothing. Grounds 2 and 3 were a challenge to the overturning of the Recorder’s conclusions as to the reasonableness of the custody officer’s belief and the necessity of the use of force.

Lady Carr LCJ gave the main judgment on ground 1. She pointed out that the word “reasonably” or any cognate word or phrase was conspicuously absent from s54(4)(a), in contrast with para (b) of the same sub-section and other provisions of PACE such as ss17, 19 and 24. Although the reasonableness of a claimed belief that a detainee might use clothing to self-harm would be relevant to an assessment of whether the belief was genuinely held, a genuine belief in that state of affairs was sufficient to give rise to the power to direct removal of clothing: paras 37-39. It was not necessary to have regard to materials surrounding the enactment of s54, but those did show that Parliament considered the wording of PACE, including s54, with care: para 42. The submission for Mr Carter that s3 of the Human Rights Act 1998 required a different interpretation of s54 was unsustainable, because a removal of clothing under s54 did not necessarily infringe Convention rights and there could not be different interpretations of s54 depending on the facts of the case: paras 49-51. Further, the conclusion in D v Chief Constable of Merseyside Police [2015] EWCA Civ 114 that Annex A of PACE Code C applied to removal of clothing for safety reasons was doubted: paras 52-58.

Ground 2 did not therefore arise: para 62. On ground 3, the judgment was given by Edis LJ. He pointed out that, because extensive CCTV footage was available and the Recorder’s findings were largely based on it, the trial judge’s usual advantages in finding facts were much less weighty than is usual: paras 72-74. Edis LJ was critical of the Recorder’s judgment as “quite repetitive and unstructured”: para 76. Having analysed it in detail, he concluded that the reasoning could not be supported, and that he took account of irrelevant matters and left out of account relative matters in reaching his conclusions. He had analysed the use of force to remove clothing out of the context of events before and after: para 82. He had failed to have sufficient regard to the dangers of positional asphyxia in leaving Mr Carter in restraints rather than moving his clothing: para 86. He had placed too much weight on PACE Code C Annex A: paras 87-88. He had wrongly held that a force policy about removal of clothing existed: paras 90, 93. Finally, he had erred in suggesting that the claimant’s right to silent and presumption of innocence were relevant: paras 91-92.

The court’s conclusions are to be welcomed. The removal of a detainee’s clothing, particularly forcible, can be upsetting and degrading. Nevertheless, the first priority always has to be their safety. As the Lady Chief Justice said at para 44:

…. the custody officer has a duty (not just a power) to ascertain everything which a person has with them when entering custody in the police station. …. the custody officer must use the methods permitted by PACE in order to discharge it, often under pressure of time and in difficult circumstances. The duty exists to ensure the safety of all persons (or property) in the custody area including the detainee, or to prevent escape or to secure (or preserve) evidence for an offence. These are important objectives, at which the seizure of clothes is aimed. Most items of clothing can be used to create a ligature; cell observation may be interrupted by operational emergencies and thus is not an adequate safeguard without more.

Paul Stagg KC and David Messling (instructed by Weightmans LLP) appeared for the Respondent

The judgment may be read here