Strip searches of trans detainees – Fiona Barton KC and Bobby Talalay acted for successful NPCC and Chief Constable of BTP in judicial review of consensual cross-sex search guidance

The Administrative Court (Linden J) has handed down judgment in R (Sex Matters) v (1) National Police Chiefs’ Council and (2) Chief Constable of the British Transport Police [2026] EWHC 1954 (Admin).

The Police and Criminal Evidence Act 1984 (PACE) empowers constables to conduct strip searches in certain circumstances, and also requires that the searching constable and the detainee be of the same sex. Following the Supreme Court’s judgment in For Women Scotland, all parties agreed that “sex” meant biological sex. The claim concerned a challenge to the Defendants’ guidance that permitted cross-sex searching for trans detainees where such a search was conducted with the express written consent of the detainee and the constable.

The Court dismissed the judicial review. In so doing, the Court approved the four principles that lay at the heart of the Defendants’ case:

1. That although searching someone was a prima facie assault, consent was a defence to assault;
2. That a detained person is in principle capable of consenting to a search by their guard, and whether or not the consent is real is a question of fact in each case;
3. That a constable on duty retains all the rights and privileges of an ordinary citizen, which includes consenting to matters such as a search; and
4. That PACE did not preclude consent as a basis for strip searching.

The main issue between the parties lay in issue 4: whether PACE extinguished consent as a lawful basis for a search. Linden J concluded that, at least with regard to the provisions relating to strip searching (sections 54-54B), it did not. Linden J referred to s.53 PACE, which removed previously existing common law powers, but noted that here were no such extinguishing provisions around consent as a lawful basis; indeed, consent was in-built into several powers in Part V PACE.

Ultimately, in a country where the Peelian principles of policing by consent remain at the heart of law enforcement, Parliament must expressly remove consent as a basis for lawful action if it is to be said that the police cannot act by way of consent separately from their statutory coercive powers.

The judgment is available here.

Fiona is a police law expert, regularly appearing in high profile, sensitive and ground-breaking civil litigation, including at Supreme Court level. Her practice encompasses public inquiries and inquests, judicial review proceedings, civil claims, misconduct proceedings and advisory work.

Bobby has extensive experience of acting on behalf of police forces and other organisations in complex data protection and privacy litigation, judicial review, human rights matters, false imprisonment claims, and other areas such as claims for assault, stress at work, malicious prosecution, human rights, and other civil actions.