By Claire Loneragan
On 8 January 2024, Women’s Rights Network published our report – State Sanctioned Sexual Assault. Its impact has been significant and is growing as more people start to understand the implications.
It’s a complicated area, though, and it’s not entirely clear to everyone what’s new, what’s stayed the same, and that it reveals something very dark indeed.
A bit of background: PACE and searches
Part of the complexity is caused by the various codes – Code A to Code I – that comprise the Police And Criminal Evidence Act (1984). Each code defines the powers granted to the police to combat crime whilst protecting the rights of the public. “Maintaining that balance is a central element of PACE.”
The PACE codes that cover searches are:
Code A: stop and search prior to arrest. (Only a quarter of people searched under code A go on to be arrested.)
Code C: search after arrest, either in custody or a medical facility
Code H: searching of suspect arrest in relation to terrorism offences.
PACE defines different types of search, too.
A basic search where no more than outer clothing (coat, jacket, gloves) is removed. This allows clothing to be searched – including hair and socks – but not the person. A basic search can be conducted in public view, and there is no legal requirement for same-sex searching although that is the usual practice.
A more thorough search involves the removal of more than outer layers of clothing and must take place out of public view but can be done in a police van. No person of the opposite sex may be present unless explicitly requested by the person being searched.
A strip search exposes intimate parts of the body and must be conducted out of public view and not in a police vehicle. No person of the opposite sex may be present unless explicitly requested by the person being searched.
An intimate search involves the examination of bodily orifices (with the exception of the mouth) and may only be carried out by a registered medical practitioner or registered nurse, unless an officer of at least inspector rank considers this is not practicable. In this event, the officer and others present must be of the same sex unless explicitly requested by the person being searched.
In 2012, PACE Code C was modified by Annex L (see page 88) which directs officers to respect the “gender of transgender individuals” when performing searches of people in custody. This permits the person being searched to choose the sex of the officer or staff member who will search them. This is repeated in Code H annex I page 76 for those arrested in connection with terrorism.
Code A was modified too, so that it also refers to Code C Annex L. But because Code A refers to pre-arrest searching, the controls written in to Annex L that would protect officers from a charge of sexual assault in a custody setting – such as asking the suspect to sign the custody record to confirm their preference – will not be available.
This direction is clearly a huge problem for police officers who might be required to search a suspect of the opposite sex to themselves. But the scope is clear – these annexes apply to the individuals being searched, and opposite sex searching would be at their explicit request only.
More background: the Standing for Women report
Standing for Women reported in June 2021 that police forces up and down the country had taken these annexes and extended their scope.
In addition to allowing suspects to “self-identify their gender”, many forces also allowed officers to “self-identify their gender” for the purposes of searching suspects in custody.
No GRC required. No safeguards at all. Since 2012.
This is a huge deal. It’s clearly unlawful for these forces to act beyond the scope of Annex L or Annex I, and if challenged Chief Constables would need to defend their local force policies.
What does the WRN report reveal?
The WRN report acknowledges the findings of the Standing for Women report, which are bad enough. However, the situation is now even worse.
The National Police Chiefs Council (NPCC) is the organisation for senior police officers which agrees policies for all police forces in the UK. In December 2021, the NPCC formally approved those local policies at the behest of Deputy Chief Constable Vanessa Jardine and took them to their logical conclusion.
They issued guidance instructing local forces to support police officers who self-identify as the opposite sex for the purpose of searches.
The NPCC didn’t just officially acknowledge the unlawful policies that had been implemented locally for searches in custody, they effectively mandated them as the standard for ALL forces.
And they made sure that the new policy and the guidance issued to support it explicitly applied to Code A too, covering “stop and search” on the street, not just for suspects in police stations. This, again, goes way beyond what is set out in PACE.
And it means that a police officer can self-identify as the opposite sex and carry out a more thorough search on a member of the public on the basis of their “reasonable suspicion”. No arrest necessary and out of public view.
What could possibly go wrong?
All this is bad enough, but the extent to which safeguarding against the potential abuse of these policies has been abandoned deserves recognition. The guidance includes the following gems:
Employers should treat people in accordance with their lived gender identity, whether or not they have a GRC, and should not ask Transgender colleagues if they have a GRC or new birth certificate.
Chief Officers are advised to recognise the status of Transgender colleagues from the moment they transition, considered to be, the point at which they present in the gender with which they identify.
Thus, once a Transgender colleague has transitioned, they will search persons of the same gender as their own lived gender.
some colleagues may have a gender identity that does not easily fit with the binary regime contemplated when PACE 1984 was enacted, for example non-binary, gender fluid or agender. A discussion may be necessary with such a colleague to establish how they can participate in conducting searches.
If the refusal [of a member of the public to be searched] is based on discriminatory views, consideration should be given for the incident be recorded as a non-crime hate incident unless the circumstances amount to a recordable crime.
If the person being searched objects to being searched by any colleague, it may be advisable for them to be replaced by another team member to search that person. … If such a decision must be made, it is essential to support the affected colleague and consider the adverse impact on other colleagues.
The default position is that a male officer will be enabled by this policy and by his colleagues to perform humiliating thorough or even strip searches on women if he says that he is a woman too. Unless she has a better grasp of her legal rights than the police.
This policy and the NPCC guidance rides roughshod over the rights of women and is in clear contravention of PACE 1984. It hardly seems credible that not one police chief had concerns. They must surely have had good reasons for supporting it?
Their reasons are:
1. Different forces have different policies “which leaves police forces vulnerable to criticism and open to legal challenges”.
It is not obvious how making all the policies consistently unlawful would resolve this.
2. “It removes a potential employment barrier for transgender individuals to consider the Police Service as an employer of choice for transgender individuals.”
Why following current law on searching is an employment barrier for “transgender individuals” is not explained.
3. “Taking further active steps to increase inclusivity should increase trust and confidence in the police.”
Perhaps they should have checked with women on that one.
At this point, the ideological capture of the NPCC is complete. And it’s past time for the Minister of Policing to intervene.