Background
Sex Matters challenged interim guidance issued by the National Police Chiefs’ Council and the British Transport Police concerning strip searches of transgender detainees. The guidance provided that a detainee could request a strip search by an officer of a different biological sex, provided the detainee, searching officer, and authorising officer all expressly consented. If consent was withheld or withdrawn, the search would proceed under the statutory regime with an officer of the same biological sex as the detainee.
The charity argued that this consensual procedure was unlawful because sections 54 to 54B of the Police and Criminal Evidence Act 1984 require specified searches to be performed by a constable of the same sex as the person searched. After other grounds were withdrawn or abandoned, the sole issue was whether reliance on consent to conduct an opposite-sex strip search made the guidance ultra vires section 54(9).
The Court’s Holding
Mr Justice Linden dismissed the judicial-review claim. He held that the relevant PACE provisions codify the coercive search powers exercised by police officers as constables. Their same-sex requirements govern searches conducted under those statutory powers, but do not extinguish the common-law capacity of an officer, acting with the capacity of an ordinary citizen, and a detainee to agree to an otherwise lawful strip search.
A detained person is not legally incapable of giving genuine consent merely because the person is in custody, although validity depends on the evidence and circumstances. The court concluded that sections 54 to 54B can coexist with consensual arrangements concerning the searching officer’s sex and therefore did not prohibit the regimes established by the challenged guidance.
The holding was expressly limited to the strip searches covered by sections 54 to 54B and Annex A to PACE Code C. The court did not decide the position for intimate searches under section 55, whether “sex” under PACE necessarily means biological sex, the effect of a Gender Recognition Certificate, or any issue under the Human Rights Act 1998.
Key Takeaways
- PACE’s same-sex rules apply to the exercise of coercive statutory search powers but do not exclude an otherwise lawful strip search based on genuine consent.
- Under the guidance, the detainee, searching officer, and authorising officer must agree, and withdrawal of consent requires a return to the statutory same-sex procedure.
- The judgment leaves unresolved the meaning of “sex” under PACE, the effect of Gender Recognition Certificates, and the rules governing intimate searches.
Why It Matters
The decision permits the NPCC and British Transport Police to retain guidance accommodating a transgender detainee’s preference about the sex of the searching officer, while preserving the statutory same-sex procedure when valid consent is absent or withdrawn.
Its reasoning distinguishes consensual police interactions from coercive statutory powers, but the court carefully confined that reasoning to the strip-search provisions before it. Questions involving intimate searches, human rights, and the legal effect of gender recognition remain open.