Court of Appeal gives judgment on a custody officer’s power to order removal of a detainee’s clothing

The Court of Appeal today handed down judgment in the case of Carter v Chief Constable of Essex Police [2025] EWCA Civ 367. The appeal concerned the treatment of detainees in police custody and the powers of custody officers under s.54 of the Police and Criminal Evidence Act 1984 to order the complete removal of a detainee’s clothing without consent and with force.

In her judgment, Lady Chief Justice Carr held that s.54(4)(a) of the Police and Criminal Evidence Act 1984 requires that to order removal of clothing a custody officer must actually believe that the detainee may use the clothing to cause physical injury (or one of the other reasons in s.54(4)(a)). There was however no independent requirement that the custody officer’s belief be based on reasonable grounds.

The claimant, Mr Carter, was arrested by Essex Police officers on 14 December 2017 and 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. 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.

The Chief Constable 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 had misdirected himself and there was no proper basis for reading a reasonableness requirement into s.54(4).  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 and that it had been necessary to use reasonable force to remove the clothing.

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 Chief Constable maintained the cross-appeal on damages, arguing that the amount of damages awarded by the Recorder for the events in Phase 2 had been too high in light of the expert evidence.

Giving judgment, Lady Chief Justice Carr held that that analysis of s.54(4)(a) was an exercise of pure statutory interpretation and on its plain language, the word “reasonably” did not appear. Neither could reasonably be implied, where its omission could not be accidental. It could only be concluded that it was a deliberate decision by Parliament.

The imposition of a threshold lower than reasonable belief could be readily understood. Whilst its removal might be a significant interference with an individual’s Article 3 and/or Article 8 rights, the custody officer had a duty to ensure the safety of all persons in custody. Most items of clothing could be used to create a ligature. There was no basis under the Human Rights Act 1998 to read in a higher threshold of reasonable belief in circumstances where s.54(4)(a) was being used to authorise the complete removal of a detainee’s clothing.

The Lady Chief Justice explained that the exercise must be carried out by the custody officer on a case by case basis. There is no separate requirement for the relevant belief to be reasonable. However, the more unreasonable the relevant belief, the less likely it is to have been actually held by the custody officer in question.

Lord Justice Edis’ judgment addressed Grounds 3 and 4, regarding the use of force and the amount of damages awarded. He held that that the Recorder’s judgment contained a number of flaws, such that Mr Justice Martin Spencer had been entitled to interfere with what were evaluative decisions based on factual findings. This included selective reliance on College of Policing Guidance and the reliance on a detainee’s “right to silence”, despite this being irrelevant to answering risk assessment questions. The Claimant’s behaviour had been such that use of force had been lawful. The question of quantum of damages was academic, but the Court agreed that the overall award was far too high given the expert evidence.

The case provides helpful guidance on the operation of s.54 of PACE and the applicability of Annex A of PACE Code C to situations where a detainee’s clothing is being removed on safety grounds.

A copy of the judgment and the Court of Appeal press summary are available at https://www.judiciary.uk/judgments/matthew-carter-v-the-chief-constable-of-essex-police/.

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

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Related barristers

David Messling

Call 2017

Related areas

Police Law

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