Patricia Zelda Davies (by her mother and litigation friend Zelda Davies) v The Chief Constable of Merseyside Police and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Lord Justice Lewison,Lord Justice Fulford |
| Judgment Date | 19 February 2015 |
| Neutral Citation | [2015] EWCA Civ 114 |
| Docket Number | Case No: B3/2014/0142 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 February 2015 |
[2015] EWCA Civ 114
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Liverpool County Court
Mr Recorder Parker
1IR17249
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pitchford
Lord Justice Lewison
and
Lord Justice Fulford
Case No: B3/2014/0142
and
Maya Sikand (instructed by James Murray Solicitors) for the Appellant
Eric Shannon (instructed by Plexus Law) for the Respondent
Felicity Williams and Joanne Cecil (instructed by Just for Kids Law) for the Interveners
Hearing dates: 23rd January 2015
The appeal
At 12.40 am on Thursday 16 September 2010 the claimant, who was then a 14 year old girl, was arrested outside a kebab shop in Argyle Street Birkenhead. Her behaviour was so uncontrolled and aggressive that she was handcuffed and taken to Wirral police station. The custody officer, Police Sergeant ("PS") Gilmore ordered that her clothing should be removed because she was a suicide risk. The claimant was taken to a room by three female officers who removed the claimant's clothing and dressed her in a safety gown. She was then placed in a cell in which she could be observed by means of internal CCTV.
The claimant commenced proceedings in Liverpool County Court against the Merseyside Police. Her particulars of claim were amended by counsel on 10 May 2013. In her claim no point was taken as to the lawfulness of the claimant's arrest. She sought damages for assault on the ground that the defendant's officers had used excessive force in restraining the claimant on arrival at the police station. Secondly, the claimant sought damages pursuant to section 7 of the Human Rights Act 1998 for breach of her right to respect for her private life under Article 8 of the European Convention on Human Rights ("ECHR"). She made further claims of breach of Code C of the Police and Criminal Evidence Act 1984 ("PACE") Codes of Practice and/or breach of the Mental Capacity Act 2005 and/or for breach of the Disability Discrimination Act 1995.
The claim was heard before Mr Recorder Parker (shortly afterwards his Honour Judge Parker) sitting at Liverpool County Court for five days ending on Wednesday, 4 December 2013, when he delivered a detailed extempore judgment. He rejected each of the grounds of claim and gave judgment for the defendant.
The claimant appeals from the recorder's order on the grounds that:
(1) he erred in finding that Code C, Annex A did not apply to the forced removal of clothing, authority for which was provided in section 54(4) PACE;
(2) in breach of Code C, Annex A, part B it is contended that (i) male police officers were in a position, should have they chosen to do so, to observe the removal of the claimant's clothing and (ii) male officers took part in the management of the claimant immediately before the claimant's clothes were removed; accordingly, the defendant was in breach of Article 8;
(3) alternatively, if, contrary to the claimant's case, Code C, Annex A did not apply to the claimant's circumstances, the recorder failed to determine that the defendant's action was not in accordance with law within the meaning of Article 8(2).
For convenience I shall continue to refer to the parties as the claimant and defendant respectively.
The claimant does not appeal against the recorder's finding that she was not assaulted, or against his judgment that there was no breach of duty under the Mental Capacity Act 2005 or the Disability Discrimination Act 1995. There is no appeal against the recorder's finding that the custody officer, PS Gilmore, acted reasonably and proportionately in deciding that there was an urgent need for the removal of the claimant's clothes. Finally, the claimant was refused permission to appeal against the recorder's finding of fact that no male police officer observed the claimant while her clothing was being removed.
On 12 December 2014 Jackson LJ granted an application made jointly by Just for Kids Law and Children's Rights Alliance for England to intervene in the appeal, to make concise written submissions and to address the court.
The court was provided with detailed written submissions by the interveners supplemented orally by Ms Williams with commendable focus and precision. The court was reminded of the vulnerable position of children in police custody and the duty upon the police service under section 11 of the Children Act 2004 to have regard to the welfare and best interests of children in their care. The special position of children has been recognised by the United Nations Convention on the Rights of the Child ("UNCRC"), in particular in the identification of their right to privacy (art. 16), protection from maltreatment (art. 19), and protection of their sense of dignity and worth (art. 40).
The court was referred to a number of international instruments whose objective is the protection of and respect for the rights of children, including those in custody.
The interveners submitted that it was essential that there should be procedural safeguards for the protection of the rights and dignity of children under Article 8 ECHR. Code C, PACE fulfilled the minimum requirements of such an instrument.
The interveners supported the claimant's case that if, as the recorder found, Code C did not apply directly to the claimant's circumstances, then the Article 8 requirement that the interference must be in accordance with the law and in pursuit of a legitimate aim was not met since the individual had no access to knowledge of the circumstances in which the interference could lawfully take place (compare Gillan and Quinto v United Kingdom [2010] 50 EHRR 45).
The facts
At the time of these events the claimant was a girl who had endured a very difficult childhood, during which she had suffered from sexual and physical abuse. The recorder, having heard evidence from expert psychologists, concluded that the claimant probably suffered from a complex post traumatic stress disorder caused by events unconnected with the present case, and a complex conduct and emotional disorder. Her young life had been blighted by alcohol and drug abuse.
At about 12.40 am on 16 September 2010 Police Constable ("PC") Lepoisdevin and PC Copeland were flagged down in Argyle Street, Birkenhead by someone working in the Burger Kebab House. That person made a complaint about the claimant's conduct. On the officers' arrival, the claimant, who was severely intoxicated having consumed a quantity of vodka, had emerged from the shop while shouting abuse towards the occupants. When she was warned by the police officers she turned her aggression towards them in consequence of which she was arrested and handcuffed outside the police vehicle and then placed within it. En route to the police station she continued to struggle and shout abuse at the officers.
On being removed from the police vehicle at the police station the claimant made a noise similar to clearing the throat so as to give the impression that she was preparing to spit at the officers. As a result, the officers walked her to the custody desk with her head held down so that she was facing the floor as she walked. The claimant was shouting abuse and at times screaming incomprehensible words or sounds. She continued to struggle and on two occasions raised her feet in a manner suggestive of an attempt to kick out at the officers.
On the claimant's arrival at the custody desk PS Gilmore consulted a computerised custody record dated 2 June 2010 by which he was informed that the claimant had on that occasion been arrested having consumed a litre of cider and having destroyed her room at home and having cut herself and taken a drug overdose. She had been taken to the police station in leg restraints and handcuffs but had calmed down at the custody desk. Because the claimant represented a risk of self harm she had been placed in a safety gown and taken to a CCTV cell where she was detained overnight. In the light of this information PS Gilmore decided that as a matter of urgency the claimant's clothing should be removed and that she should be provided with a safety gown. The recorder found that the purpose of the instruction was not to search the claimant for articles but to remove clothing to reduce the risk of suicide by using that clothing by way of a ligature.
Before she was taken from the custody desk the claimant's handbag and hair were searched. During this time, although the claimant was under restraint, she retained her mental capacity. The recorder found that she was able to understand information given to her, to retain it and to use it for the purpose of making a decision. The claimant's condition was undoubtedly impaired by her consumption of vodka but it did not affect her comprehension.
The claimant was taken to a room for the purpose of having her clothing removed. She was accompanied by two female detention officers and two male officers. They were joined shortly after by a female police officer. She was informed that she would be undressed. At this point the male officers left the room and the claimant remained in the company only of the three female officers. Although the claimant resisted the three female police staff were able, using a safety blanket, to preserve, as far as possible, the claimant's dignity. They removed the claimant's handbag, clothes and body jewellery. The recorder found that, at all material times, the...
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...those being searched from being assailed any further than is necessary . The second case is PD v Chief Constable of Merseyside Police [2015] EWCA Civ 114 (19.2.15). That was a case which concerned the removal of the clothing of a 14-year-old girl at a police station, with the purpose of pr......
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...though judicial intervention and interpretation has been very limited.6 The judgement in PD v Chief Constable of Merseyside Police [2015] EWCA Civ 114 did not 342 Youth Justice 22(3)involve a search as such, falling within the ambit of PACE 1984 s.54(4)(a)(i), but is nev-ertheless instructi......
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...though judicial intervention and interpretation has been very limited.6 The judgement in PD v Chief Constable of Merseyside Police [2015] EWCA Civ 114 did not 342 Youth Justice 22(3)involve a search as such, falling within the ambit of PACE 1984 s.54(4)(a)(i), but is nev-ertheless instructi......