Challenging the shadow strip-searching regime

The High Court has ruled against Sex Matters in our case against the National Police Chiefs’ Council (NPCC) and British Transport Police (BTP) over their “consensual” searching policies.

Mr Justice Linden accepted a series of extraordinary legal arguments from the police, which included that constables can enter into consensual agreements with people in custody in the same way that private citizens can enter into consensual agreements with each other. It accepted an analogy drawn by counsel for the police between such “consensual” searches and private citizens consenting to sadomasochistic acts.

We will be seeking permission to appeal this judgment, which we believe is wrong in law.

Police searching and the law

When someone is being told by a police officer to remove their clothes, sex matters. Under the Police and Criminal Evidence Act 1984 (PACE), strip searches are only to be carried out on a same-sex basis. PACE also covers other aspects of searching, such as when suspects may be photographed and who else can be present during a search.

Our case challenges guidance issued by the NPCC and BTP following the For Women Scotland judgment. This guidance seeks to circumvent PACE’s clear legal provisions by introducing a “shadow” searching regime based on consent.

Following an earlier challenge brought by Sex Matters, the NPCC and BTP had already withdrawn previous policies, which allowed trans-identifying officers to search detainees of the opposite sex. They also accepted that possession of a gender-recognition certificate has no bearing on who may search whom.

When we raised concerns about female officers being put under pressure to strip search trans-identifying men, the NPCC and BTP conceded further safeguards. They agreed in writing that an opposite-sex strip search “is very likely to be refused” by the senior officer in charge when there is nothing to suggest the detainee is trans, when the suspect had been arrested for a sexual offence or has a history of sexual offending, or if there is anything to suggest a sexual motive for requesting an opposite-sex search.

But none of these safeguards appear in the guidance. And the NPCC and BTP still insist that it is lawful to have a policy that envisages female officers being asked to strip search trans-identifying men, and male officers to strip search trans-identifying women, as long as both detainee and officer consent.

Why we say the policy is unlawful

Our case is simply that such a policy is unlawful: a police officer has no power to conduct a strip search other than in accordance with PACE. That law, which was brought in following the report of a royal commission on criminal procedure published in 1981, carefully balances state power and individual rights. It protects both officers and suspects by establishing clear rules and lawful powers.

The legal team representing the police seemed willing to overturn this whole meticulous framework of legal protections and safeguards, simply to avoid saying No to people who don’t want the law to apply to them.

The arguments they put forward did not concern human rights. Bizarrely, they argued that even while at work police officers are ordinary citizens who can enter into agreements that go outside of the rules governing police conduct, and that being detained does not prevent a citizen from being capable of entering into consensual arrangements with officers who are detaining them. They cited precedent establishing that people can consent to bodily harm in the context of sadomasochistic sexual encounters.

During the hearing, the judge asked several times whether it might be better to base the policy on a less extreme legal argument: that opposite-sex “consensual” searches are still being carried out under PACE, with only the same-sex rule waived. However, counsel for the police was adamant that an officer carrying out such a search would be acting outside PACE altogether, and instead within the world of consensual acts between private citizens involving removal of clothing.

The judgment sets all of this out, and then comes to the incoherent conclusion that the searches are not against the public interest “provided the consent is genuine and the search is lawful in all other respects”.

Read the judgment

Under pressure, police forces and the NPCC abandoned the illogical slogan that “trans women are women”. But instead of returning to reality and the law as written, they have taken refuge in an equally false and legally incoherent equation: “lawless searches are lawful searches”.

As counsel for the police admitted, when an officer steps outside PACE there are no longer any rules about what is lawful. The only constraints on an officer’s actions are those agreed on a consensual, voluntary basis. Perhaps similar arguments could be used to justify officers and detainees engaging in sexual or violent acts, or providing financial gifts or loans or other favours, with the sole question consideration being whether both parties “consented”.

We believe this judgment is wrong in law and we will be applying for permission to appeal.

Why this case matters

Our case is important because PACE protects female police officers from being pressured into searching male suspects. Evidence we placed before the court showed that some male detainees will request such searches for all sorts of reasons, including to humiliate female officers, to cause difficulties for police in custody suites and for sexual gratification.

PACE also stops male officers agreeing to search trans-identifying females, including young and vulnerable women who believe they must submit to this as a test of the authenticity of their gender identity. And finally, it protects officers of both sexes from later accusations that they acted unlawfully by carrying out a search not permitted under PACE.

One police officer we who we interviewed as part of our evidence said:

“I can’t understand how people are expected to give true consent while under duress to what essentially amounts to a sexual assault, if not just a physical assault.”

Another male officer spoke of a female detainee seeking consensual sexual relations:

“Where I have had a sexual approach in a professional capacity, it might be what she wanted but that does not make it right.”

The officers we spoke to did not think that the reassurance that refusal to carry out an opposite-sex search would not cause any career detriment to an officer was adequate:

“If you are seen as a troublemaker or somebody who won’t toe the line, then you won’t get any further.”

Some officers made the point that refusing to carry out an opposite-sex search on a trans-identifying detainee would, in effect, “out” an officer as holding “gender critical” beliefs that are widely regarded by policing leaders to be bigoted and even unlawful, and which have been described in training and guidance provided to officers as “transphobic”. The depth of these fears is evidenced by the fact that every serving officer with whom we spoke was willing to do so only on condition of strict anonymity.

More broadly than protecting individual officers and detainees, our case seeks to protect the rule of law. If Parliament had wanted to allow people in custody to request to be strip-searched by an officer of the opposite sex, it would have written this into PACE. It didn’t, and it is not for the National Police Chiefs’ Council or individual police forces to seek to subvert the law by creating a shadow searching regime.

Related content

Police strip-searching: Sex Matters’ judicial review

Police forces withdraw unlawful search policies

Sex Matters is challenging BTP’s abusive strip-search policy