The Court of Appeal hears the case of Carter v Chief Constable of Essex Police

The Court of Appeal will today hear the case of Carter v Chief Constable of Essex Police.

The appeal concerns section 54 of the Police and Criminal Evidence Act 1984 and the power of a custody sergeant to order that a detainee’s clothing be removed if the custody sergeant believes that detainee may use it to injure themselves.

The claimant, Mr Carter, was arrested by Essex Police officers on 14 December 2017, following allegations by two women that he had assaulted them in a pub. The claimant was taken to Southend-on-Sea police station, where his detention was authorised. Whilst in custody, officers used force to restrain him at the custody desk and afterwards in cells, including the forcible removal of his clothing.

The claimant denied the criminal allegations against him. He was later tried and acquitted. In 2020, the claimant brought a civil claim for battery against Essex Police, alleging that the use of force against him whilst at the police station had been unlawful. There was no challenge to the lawfulness of his arrest.

The claim focused on three particular moments when force was used to restrain the claimant: (1) at the custody desk when the claimant was being booked into custody, (2) in a cell when his clothing was removed, and (3) later in another cell, when officers entered to retrieve a blue latex glove.

Mr Recorder Dagnall, sitting in the County Court, found that the use of force in (1) and (3) had been lawful, but that it had not been lawful to use force to remove the Claimant’s clothing in Phase 2. In reaching his conclusion, the Recorder considered the test in s.54(4)(a) of PACE for removal of a detainee’s clothing, which provides 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 s.54(4)(a) should be interpreted as requiring a custody officer to have objectively reasonable grounds for believing that a detainee might use their clothing to self-harm. The Recorder accepted that the Custody Officer herself genuinely believed that removal of clothing was needed, but found that this belief was not objectively reasonable.

Essex Police appealed to the High Court against both the Recorder’s finding of liability and the size of the damages award. On appeal, Mr Justice Martin Spencer held  ([2024] EWHC 126 (KB)) that the Recorder has misdirected himself. There was no proper basis for reading a reasonableness requirement into s.54(4) of PACE. It set a low threshold for which there were good policy grounds, because detainees can use clothing to harm themselves or an officer, and this can happen “in but a few moments with tragic consequences”. It was understandable that the law should set a low threshold of actual and honest belief rather than reasonable belief.

Mr Justice Martin Spencer also held that, in any event, the Recorder’s finding that the Custody Officer did not have reasonable grounds was not sustainable. He further held that it had been necessary to use reasonable force to remove the clothing, as 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”.

The claimant appealed to the Court of Appeal, contending that the High Court was wrong about the interpretation of s.54 and was not entitled to set aside the Recorder’s findings about the reasonableness of the custody officer’s belief or the necessity of force. The defendant maintains the cross-appeal in respect of the quantum awarded by the Recorder for the events in Phase 2.

The appeal will be held on 26 March 2025 before Lady Chief Justice Carr, Dame Victoria Sharp DBE and Lord Justice Edis. The appeal is being live streamed on the Court of Appeal’s YouTube Channel.

David Messling is instructed by the Chief Constable of Essex Police. David is led by Paul Stagg KC of Deka Chambers, who acted for the Chief Constable in the County Court and High Court.