A person who was strip-searched in police custody and then moved whilst unclothed was not treated contrary to Article 3 or Article 8 where it was due to his own behaviour, the Court of Appeal has held in Yousif v Commissioner of Police for the Metropolis [2016] EWCA Civ 364.
The appellant was originally from Iraq where he had suffered at the hands of the authorities. He had a personality disorder, post-traumatic stress disorder and paranoia. He had been arrested following an incident of ‘road rage’. He was taken to Paddington Green Police Station, where he remained for some 12 hours. When he was being booked into custody the appellant said ‘yes’ when asked whether he had tried to commit suicide in the past but then refused to give details or respond when asked whether he was feeling suicidal. The custody officer decided that the appellant should be stripped searched and that all of his clothes should be taken from him so that he was left naked in a cell that was constantly monitored by CCTV. During his detention he was moved from one cell to another whilst naked.
The appellant claimed, among other things, that his treatment amounted to a breach of his rights under Articles 3 and 8.
At the trial the judge dismissed all of the appellant’s claims.
The judge found that the search and removal of the appellant’s clothing was necessary not only because the appellant might have a weapon, tablet or other contraband that he might use to harm himself but also because he could use an item of clothing for that purpose. The judge found that once in the cell the appellant began a “campaign of misbehaviour” involving shouting, screaming, kicking the cell door and spitting at the gaoler when he visited the cell.
After a few hours, a decision was taken, given the commotion he was causing, to move him from his existing cell to one further away from the reception desk. The judge concluded that his disruptive behaviour affected the ability of those in reception to work and was highly likely to trigger disruptive behaviour from other prisoners arriving in the custody suite The move was undertaken without the police providing clothing or a blanket to the appellant. However, the judge found that he was moved in “a markedly restrained way”, with “the absolute minimum of force” and with officers providing “a protective human curtain” for him.
Shortly after the move the appellant calmed down and he was provided with clothing and a blanket. A short while later he was seen to be fashioning a noose with the blanket and it was taken from him. The appellant was released after being interviewed, although his release was delayed after he failed to provide an accurate address.
In dismissing the appeal the Court (Lord Dyson MR; Sir Brian Leveson PQBD; Hamblen LJ) held that:
1. The judge had been correct to reject the appellant’s claim that he had been assaulted when moved between cells. He had been entitled to conclude that only the absolute minimum of force required to achieve the move was used and that, given the appellant’s behaviour up to that point, such force was necessary (see para.72 of judgment).
2. The judge had also been correct to conclude that there had been no breach of Article 3. The strip search and the cell move without clothing involved some humiliation. However, everything that happened to the appellant was a consequence of his own failure to engage with the police and their legitimate and good-faith concern to ensure that he was safe while in custody. All the police’s actions were “strictly necessary”, Bouyid v Belgium considered (paras 66, 69-70).
3. As to Art.8, there could, on the facts of the case and the findings of the judge, be no doubt that the police could justify what was undeniably an invasion of the appellant’s privacy by reference to the necessity in a democratic society for them as custodians of a person lawfully arrested to take all necessary steps to protect his safety (para.71).
Mark Ley Morgan acted for the Metropolitan Police at the trial and at the appeal.