“[t]he DP is violent and had to be taken to the cell. A strip search is only being authorised for the purpose of changing him into anti self-harm clothing as cannot be risk assessed. This will involve the exposure of intimate parts of his body.”
“…the powers of entry and search conferred by this section: (a) are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is on the premises;…” (a) are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is on the premises;…”
“(1) A constable may arrest without a warrant: …(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence; (d) anyone whom he has reasonable grounds for suspecting to be committing an offence. (2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. (3) If an offence has been committed, a constable may arrest without a warrant: (a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty. (4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that any of the reason mentioned in subsection (5) it is necessary to arrest the person in question. (5) The reasons are:… (c) to prevent the person in question- (i) causing physical injury to himself or any other person;…” …(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence; (d) anyone whom he has reasonable grounds for suspecting to be committing an offence. (b) anyone whom he has reasonable grounds for suspecting to be guilty.
“3.9 The custody officer is responsible for implementing the response to any specific risk assessment e.g.; • reducing opportunities for self harm; • calling an appropriate healthcare professional; • increasing levels of monitoring or observation; • reducing the risk to those who come into contact with the detainee...” • reducing opportunities for self harm; • calling an appropriate healthcare professional; • increasing levels of monitoring or observation; • reducing the risk to those who come into contact with the detainee...”
“4.1 ….The custody officer may search the detainee or authorise their being searched to the extent they consider necessary, provided a search of intimate parts of the body or involving the removal of more than outer clothing is only made as in Annex A… 4.2 …detainees may retain clothing and personal effects at their own risk unless the custody officer considers they may use them to cause harm to themselves or others, interfere with evidence, damage property, effect an escape or they are needed as evidence. In this event the custody officer may withhold such articles as they consider necessary and must tell the detainee why.”
“(a) Action 10. …A strip search may take place only if it is considered necessary to remove an article which a detainee would not be allowed to keep and the officer reasonably considers that detainee might have concealed such an article. Strip searches shall not be routinely carried out if there is no reason to consider that articles are concealed….”
“It is entirely to be expected that Annex A should protect all those in custody whose clothing is removed under a power given by section 54.”
“d)…Detainees who are searched shall not normally be required to remove all their clothes at the same time e.g. a person should be allowed to remove clothing above the waist and redress before removing further clothing; e) if necessary to assist the search, the detainee may be required to hold their arms in the air or to stand with the legs apart and bend forward so a visual examination may be made of the genital and anal areas provided no physical contact is made with any body orifice; f) if articles are found, the detainee shall be asked to hand them over. If articles are found within any body orifice other than the mouth, and the detainee refuses to hand them over, their removal would constitute an intimate search, which must be carried out as in Part A; g) a strip search shall be conducted as quickly as possible, and the detainee allowed to dress as soon as the procedure is complete.”
“8. The Learned Judge was wrong to interfere with the Learned Recorder’s finding, based upon his analysis of the evidence, that it was not necessary for the police officers to have used force to effect the removal of the Appellant’s clothing so that he could be changed into an anti-self-harm suit (§53 of the Judgment). 9. More particularly, the Judge was wrong to decide, contrary to the finding and the decision of the Learned Recorder, that the Appellant could not have been initially observed in his cell and/or been given an opportunity to calm down and/or to remove his clothes voluntarily, before force was used upon him, given that the use of force should be a last resort (§53 of the Judgment).”
“182. I have held that Police Sergeant Bailey and the police officers’ primary actual motivation was the belief that they were required to remove the clothing where the detainee had not answered risk assessment questions simply because that itself would suggest a risk of self-harm, although this was also combined with a fear that the claimant had threatened to attack officers already. I have come to a conclusion that neither the decision to forcibly remove the clothing, nor the method of that being affected by an instant transport and immediate forcible removing by stripping and cutting off the claimant’s clothes, was either reasonable or proportionate. I also have concluded that the fear that there was a real likelihood or possibility that the claimant, if given time to reflect, would self-harm or be violent to police officers was not a reasonable belief for the Police Sergeant Bailey and the police officers to hold.”
“192. I consider that the beliefs that the purpose of removal of clothing was to prevent the claimant using it to harm himself or police officers both lacked any reasonable basis and also were potentially irrational. It also does not seem to me the police officers can rely on the Essex Police policy as justifying what they did. This is in the light of my conclusions expressed above and also because: firstly, it was only a police policy; and, secondly, if the policy was that if risk assessment questions are not answered then clothing ought to [be] forcibly removed, it seems to me that that would be something of an irrational policy. It does seem to me that it is necessary to consider all of this in the context of Annex A, in particular, paragraph 11D, and the College of Policing guidelines, both of which, it seems to me, go entirely the opposite direction to what happened. They make clear that it is necessary to consider: that the fact of removal of clothing is humiliating; the importance of the dignity of the detainee; and the fact that removal carries its own risk of potential damage to mental health and increased risk of harm, and that observation is an alternative course which ought to be carefully considered. 193. However, even if there was any rational basis for the beliefs and reason to consider that there was risk of self-harm or of violence to police officers, I do not consider that this removal of clothing was either reasonable or proportionate. Firstly, it seems to me that there was no need to take an instant decision to remove the clothing. The claimant could simply have been left under observation and, if appropriate, restrained. I do not consider that Mr Stagg’s account as to that point sufficient. It is true that the keeping of leg restraints could carry with it a risk of positional asphyxia but that could be dealt with by close observation and/or by removal and close observation. The hands could have been left handcuffed by the back at least in the short-term and the claimant could be observed as he was observed in the holding cell. Secondly, as far as threat of violence to the police is concerned and whether that would make it impracticable to observe with an open door, if the claimant had been left with his hands handcuffed behind his back, it is difficult to see as to what the claimant could have done and, in any event, if the door was closed, the claimant could be constantly observed through the hatch. 194. It is also, it seems to me, quite clear the police officers did not give the claimant any warning or opportunity to consider any of the potential options. The claimant was restrained, and the police officers had plenty of time to give the claimant warning and inform him as to options. It would have been easy for them to have waited some minutes for the claimant to calm down. It would have been easy for them to tell the claimant such matters as: if he did not answer the questions they were going to remove his clothes forcibly; if he did not relax and calm down they would remove his clothes forcibly; and that he had a choice between removing his own clothes voluntarily himself or going through the procedure of being laid face down and having them forcibly removed and, indeed, cut off him.”
“201. Mr Wand has added in his submissions that he contends that inappropriate force was used, and that Police Constable Chapman knelt on the claimant’s head and neck. I do not find that proved on the balance of probabilities. It is disputed by the police, and I simply do not see it on the closed-circuit television. Mr Wand also said it was inappropriate for the police to use punches to force the claimant to cooperate. If I had found that the forceful removal was reasonable and proportionate then I would have found that the limited number of punches were appropriate force in the circumstances. However, it seems to me that that point simply does not arise in the light of my other conclusions. I have also already found, as I have said, that the asserted words about, “This is what we do to women beaters” were not actually said.”
“53. In addition to the decision to remove the Claimant's clothing, there is also the decision to use force to do so. By Section 117 of PACE , where any provision of the Act confers a power on a constable, 'the officer may use reasonable force, if necessary, in the exercise of the power'. The first question is whether the use of force was necessary and the second question is whether, if it was, the amount of force used was reasonable. In his Judgment, the learned Recorder concluded that force was unnecessary because the Claimant could and should have been given time to calm down, he should have had explained to him that a decision had been made to put him into anti-self-harm clothing and he should have been given the opportunity to consent and co-operate in this. Again, I agree with Mr Stagg's submissions in relation to this aspect. This was a detainee who had refused to answer questions in relation to risk assessment, who had been drinking, who was being uncooperative and whom the officers had reasonably believed needed to be immobilised with rear-stacked handcuffs and leg restraints. In addition, the Claimant had bitten the hand of one of the officers. In my judgment 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. Furthermore, Sgt Bailey and the other officers had every reason to believe that there was some urgency in getting the Claimant into an anti-self-harm suit. Although officers had been available for the purpose of restraining the Claimant, it did not at all follow, as the Recorder suggested, that there were therefore sufficient officers to observe the Claimant in his cell whilst he decided what to do and hopefully calmed himself down. In my judgment, the custody sergeant and the officers were justified and had a reasonable belief that the use of force was necessary. Given that the use of force was necessary, I consider that the amount of force used was reasonable and it was not suggested otherwise by the learned Recorder.”
“38. This principle applies to cases such as the present where the critical evidence was in the real time recordings of the relevant events. Having said that, the existence of those recordings places the appellate court in a different position to the ordinary case. Although oral evidence was given by PC Pringle, nothing he said could contradict what was recorded on the BWV footage. The observation of Hallett LJ in McCarthy [v. Chief Constable of Merseyside Police[2016] EWCA Civ 1257 ] at [17] is apposite: “… the general principle is that an appellate court should not interfere too readily with a trial judge's factual conclusions. The trial judge has the significant advantage of seeing and hearing the witnesses give their evidence. However, in this case very little evidence was disputed. Most of the Recorder's findings of fact came from the CCTV footage and we are not being asked to overturn them. It is the conclusions he drew from those findings of fact that are subject to challenge. To my mind, as an appellate court we are in an unusually good position to determine whether those conclusions were justified.” “… the general principle is that an appellate court should not interfere too readily with a trial judge's factual conclusions. The trial judge has the significant advantage of seeing and hearing the witnesses give their evidence. However, in this case very little evidence was disputed. Most of the Recorder's findings of fact came from the CCTV footage and we are not being asked to overturn them. It is the conclusions he drew from those findings of fact that are subject to challenge. To my mind, as an appellate court we are in an unusually good position to determine whether those conclusions were justified.”
“The real answer to them was identified by the judge when he explained that they involve a minute “frame by frame” analysis of a very short, fast moving incident which does not lend itself to illumination by this kind of wholly artificial exercise. This was a simple case in which the judge had to decide whether to accept the uncontradicted evidence of the relevant police officers. A simple case of this kind lends itself to a relatively short judgment and its succinctness does not evidence any lack of care in its development.”
“I just want to look at your face, because you’ve got a few bits of blood on there.”
“No I won’t [....] you’re here to beat me up”
“Excuse me? Matthew? Matthew. [….] I need to look [....]”
“I’m sorry, I can’t [....] and I don’t like .... I don’t know what to say [....]”
“[....] I’m just gonna book you in, yeah, right? [....]”
“What’s the point,I’ve been fucking treated like scum.”
“Listen, just talk to me”
“[....] fuck off you cunt”
“Put your arms down, ok.”
“Listen, I need to hear why you’re here. Now justplease calm down. Let’s get through this [....] so we can get you to your cell.”
“Get off me. Get off me. Don’t let themtouch me. [....]”
“Can you tell him to stop touching me?”
“[....] You fucking mugs”
“Matthew, just stay calm and they won’t have to touch your back, all right? [....] Just let me hear what you’re here for, all right? ....”
“He’s been arrested for [....].”
“Don’t touch me [....]” iv) At the end of the period at the custody desk, Mr Carter behaves (as the recorder found) in such a way that it was lawful for the police to use substantial force to take him to the ground and carry him, under leg restraints and handcuffs, to Cell 28. As they were doing this, Mr Carter bit a police officer. This is a key finding when considering whether, a second later in Cell 28, there was a legal obligation to attempt some further alternative steps to the immediate removal of his clothing. Persuasion and reason had failed and substantial force had been required; v) In Cell 28, the officers were concerned to deal with two risks to Mr Carter’s life. One was from self-harm using clothing as a ligature and the other was from positional asphyxia caused by being restrained in the prone position. His dignity was an important consideration, but his life was much more so. We were shown materials expressing concern that the removal of clothes may occur inappropriately on some occasions, being used as a punishment for recalcitrant detainees, rather than to protect them. That would indeed be a cause for concern if it happened, but it did not. There is no finding that the decision to remove Mr Carter’s clothes was taken for any improper reason. The finding was that PS Bailey’s belief that it was necessary was unreasonable; vi) The officers then began to carry out the instruction of PS Bailey. This began with the removal of Mr Carter’s shoes and socks, the leg restraints and his belt. During that part of the process he was bellowing “prick”, “you cunt” and “you slag”
“[He] …had refused to answer questions in relation to risk assessment, who had been drinking, who was being uncooperative and whom the officers had reasonably believed needed to be immobilised with rear-stacked handcuffs and leg restraints. In addition, the Claimant had bitten the hand of one of the officers.”
“The prone position and positional asphyxia There is an increased risk of causing positional asphyxia when restraining those of particularly small or large build or those who have taken drugs, medications (anti-psychotics) or alcohol. People restrained in the prone position should be placed on their side or in a sitting, kneeling or standing position as soon as practicable…… ….. Staff should also be trained in techniques for moving detainees and repositioning them from the prone position in accordance with the Personal Safety Manual of Guidance. Officers and staff should avoid using the prone restraint position unless it is proportionate to the threat and necessary in the circumstances. Officers should keep the period for which it is used to a minimum. When a detainee is restrained in a prone position, a safety officer should be responsible for monitoring the detainee’s conditions, particularly the airway and response, protecting and supporting the head and neck. That person should lead the team through the physical intervention process and monitor the detainee’s airway and breathing continuously. Care should also be taken not to place pressure on a detainee’s chest or obstruct the airways. Prolonged restraint and struggling can result in exhaustion, reduced breathing leading to build up of toxic metabolites. This, with underlying medical conditions such as cardiac conditions, drugs use or use of certain antipsychotics, can result in sudden death with little warning. The best management is de-escalation, avoiding prone restraint, restraining for the minimum amount of time, lying the detainee on their side and constant monitoring of vital signs. Usually there are no outward signs or symptoms of positional asphyxia. An individual may be overtaken so quickly and completely that there are no indications of distress or time to communicate a need for help.”
“(d) The search shall be conducted with proper regard to the sensitivity and vulnerability of the detainee in the circumstances and every reasonable effort shall be made to secure the detainee’s cooperation and minimise embarrassment. Detainees who are searched shall not normally be required to remove all their clothes at the same time, e.g. a person should be allowed to remove clothing above the waist and redress before removing further clothing, ”
“And as set out in paragraphs 35, 39 and 40, paragraph 11 of Annex A applies including what is set out in 11D.”
“I have held that Police Sergeant Bailey and the police officers’ primary actual motivation was the belief that they were required to remove the clothing where the detainee had not answered risk assessment questions simply because that itself would suggest a risk of self-harm, although this was also combined with a fear that the claimant had threatened to attack officers already.”
“178. Next I note and bear in mind the following where the claimant ended up in what was a profoundly humiliating and degrading experience without being given any warning that that would or might occur. Firstly, he refused to answer the risk assessment questions; but which I note any detainee is entirely entitled to refuse to answer - there is no legal compulsion for the claimant to say anything, let alone answer those particular questions. Secondly, this arose from circumstances where the claimant had made a movement which might in very fast moving circumstances suggest an attempt to attack or a preparatory step to attempt to attack police officers; but which were actually circumstances where, in fact as I have held, it was a mere innocent attempt to stand up and clear space, and where any reasonable observer given a real opportunity to consider the matter with time would, in my view, come to a conclusion that that was all that the claimant was seeking to do. Thirdly, these are circumstances where the claimant has the benefit of a presumption of innocence, although, obviously, the police officers were faced with what they had been told by the various informants.”
“I can indicate that, had I needed to consider the quantum of damages, I would have been of the view that the learned Recorder also erred in awarding a sum of this magnitude arising out of the events of Phase 2 alone but I would prefer to leave it to the Court of Appeal to determine whether that is right and, if so, what the level of damages should have been, should they ever be seized of this matter.”
“b) if the Claimant would have developed a psychiatric disorder without phase (3) having occurred, what effect did phase (3) have on the nature and extent of the psychiatric disorder that arose such as its presentation, severity, and/or prognosis? In my opinion, it was all of phases 2-4, in addition to the court case that followed and witnessing the CCTV footage that led to the development of Mr Carter's Adjustment Disorder. If phase 3 had not occurred but he had encountered these other experiences, on balance, he still would have developed traumatic stress symptoms; albeit these may have been somewhat milder. On balance however, there probably would not have been a significant difference in terms of presentation, severity or prognosis.”