Davies v Merseyside Police & Anor

Factual and Procedural Background

At approximately 12:40 am on 16 September 2010, the Plaintiff, then a 14-year-old girl, was arrested outside a kebab shop in The City due to uncontrolled and aggressive behavior. Upon arrival at The Police Station, the custody officer, Police Sergeant Gilmore, ordered the removal of the Plaintiff’s clothing because she was assessed as a suicide risk. Three female officers removed the Plaintiff’s clothing and dressed her in a safety gown before placing her in a CCTV-monitored cell. The Plaintiff initiated legal proceedings against Company A (Merseyside Police) in Liverpool County Court, seeking damages for assault based on excessive force during restraint, breaches of the Human Rights Act 1998 under Article 8 ECHR for privacy violations, and alleged breaches of Code C of the Police and Criminal Evidence Act 1984 (PACE), the Mental Capacity Act 2005, and the Disability Discrimination Act 1995.

The claim was heard over five days ending 4 December 2013 before Judge Parker, who rejected all claims and ruled in favor of the Defendant. The Plaintiff appealed on grounds including alleged errors regarding the applicability of Code C, Annex A to the removal of clothing, breaches of Article 8 due to male officers’ presence or involvement, and the legality of the Defendant’s actions under Article 8(2). The Plaintiff did not appeal findings that there was no assault, no breach under the Mental Capacity Act 2005 or Disability Discrimination Act 1995, and that the custody officer acted reasonably and proportionately. Permission to appeal the factual finding that no male officer observed the Plaintiff during clothing removal was refused.

Intervention was permitted by Just for Kids Law and Children’s Rights Alliance for England, who emphasized the vulnerability of children in custody and the necessity of procedural safeguards under Article 8 ECHR, supported by international instruments such as the UN Convention on the Rights of the Child.

Legal Issues Presented

1. Whether Code C, Annex A applies to the forced removal of a detainee’s clothing under section 54(4) PACE.
2. Whether the presence or involvement of male police officers during the removal of the Plaintiff’s clothing constituted a breach of Code C, Annex A, part B, and consequently a breach of Article 8 ECHR.
3. Alternatively, if Code C, Annex A does not apply, whether the Defendant’s actions were lawful under Article 8(2) ECHR.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff contended that Code C, Annex A applied to the removal of her clothing and that the Defendant breached its provisions.
• It was argued that male officers were in a position to observe the Plaintiff’s clothing removal, violating the Code and Article 8.
• Alternatively, if Code C did not apply, the Defendant’s actions were not in accordance with the law under Article 8(2) because the Plaintiff had no access to knowledge of lawful circumstances for interference.

Interveners' Arguments

• Emphasized the vulnerability of children in custody and the duty under section 11 of the Children Act 2004 to consider their welfare.
• Supported the Plaintiff's position that procedural safeguards under Article 8, as embodied in Code C, are essential.
• Argued that if Code C did not apply, the interference could not be considered lawful under Article 8(2) due to lack of accessible legal standards.

Respondent's Arguments

• The Defendant maintained that the removal of clothing was not a strip search under Code C, Annex A, but the “spirit” of the Code was followed.
• The Defendant asserted that no male officer observed the Plaintiff during clothing removal and that the procedure was reasonable and proportionate to prevent suicide.
• The Defendant argued that the actions were lawful and justified under section 54 PACE and Article 8 ECHR.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gillan and Quinton v United Kingdom [2010] 50 EHRR 45	Requirement that interference with Article 8 rights must be in accordance with law and accessible to individuals.	Referenced by interveners to argue that lack of application of Code C to the Plaintiff’s case undermined lawfulness of interference.
Wainwright v The United Kingdom (2006)	Proportionality and respect for dignity in strip searches under Article 8.	Used to illustrate that even lawful searches can breach Article 8 if conducted in a disproportionate or undignified manner.
Jaeger v Estonia [2014] ECHR 1574/13	Necessity of respect for privacy during searches and appropriateness of location.	Applied to assess whether the manner and location of the search violated Article 8.
R (HC) v Secretary of State for the Home Department and Another [2013] EWHC 982 (Admin)	Special consideration for the welfare and rights of children in custody.	Supported the interveners’ submissions emphasizing vulnerability of children and need for protective measures.

Court's Reasoning and Analysis

The court analyzed the applicability of Code C, Annex A, concluding that although the removal of the Plaintiff’s clothing constituted a "search" under section 54 PACE and Code C, Annex A did not explicitly contemplate removal of clothing for suicide prevention, the Defendant was nonetheless obliged to comply with the "spirit" of the Code. The court found that the removal was not a strip search as defined because it was not conducted to discover concealed articles but to prevent self-harm by seizure of clothing liable to be used as ligatures.

The court accepted the evidence that male officers did not observe the Plaintiff during the clothing removal and remained outside the room, and that female officers used a safety blanket to preserve dignity. The court held that presence of male officers in the vicinity did not breach Annex A, paragraph 11(b), as the critical requirement was that no one not involved in the removal could observe the Plaintiff undressed.

The court rejected the argument that the recorder failed to consider paragraph 11(c) concerning the presence of an appropriate adult, finding that the urgency due to suicide risk justified the absence, and the spirit of the Code was observed.

On proportionality under Article 8, the court found the Defendant’s actions reasonable and proportionate given the immediate risk of self-harm. The court also noted the absence of challenge to the custody officer’s decision-making or to the availability of less invasive measures.

While expressing concern about the immediate removal of clothing from a vulnerable child, the court found no legal basis to overturn the decision given the facts and procedural history.

Holding and Implications

The court’s final decision was to DISMISS THE APPEAL.

This ruling upheld the lower court’s judgment that the Defendant did not breach Code C, Annex A, or Article 8 ECHR in the manner or legality of the Plaintiff’s clothing removal. The decision confirms that removal of clothing to prevent suicide risk, even if not explicitly covered by strip search provisions, must be conducted in accordance with the principles of dignity and privacy embodied in the Code. No new legal precedent was established beyond affirming the reasonableness and proportionality of the Defendant’s actions in this specific context. The ruling underscores the importance of procedural safeguards and the special considerations owed to vulnerable juveniles in custody but acknowledges that urgent protective measures may justify deviations from standard protocols.