Pile v Chief Constable of Merseyside Police [2020] EWHC 2472 (QB) concerned what many might consider to be the tail end of just another good night out. The claimant got into a taxi on 22 April 2017, in an advanced state of intoxication, and the taxi driver rang 999 to report that she had started abusing him and ‘kicking off’. She vomited all over herself and over the back of the taxi. Officers responding to this unfortunate misunderstanding found her covered in vomit, including in her hair. They arrested her for the offence of being drunk and disorderly. At the police station, Ms Pile was flailing her arms with the intention of striking the officers accompanying her. She later accepted a £60 fixed penalty notice as an alternative to being prosecuted. For many, the story would have ended there...

The issue

The claimant did not, however, leave it there. By the time the matter reached Mr. Justice Turner, on appeal from Mr. Recorder Hudson sitting in the County Court in Chester, he identified this important issue of English constitutional law, never before determined by the High Court, at [1]:-

“Cheryl Pile brings this appeal to establish the liberty of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit soaked clothing. ... She had emptied the contents of her stomach all over herself and was too insensible with drink to have much idea of either where she was or what she was doing there. Rather than leave the vulnerable claimant to marinade overnight in her own bodily fluids, four female police officers removed her outer clothing and provided her with a clean dry outfit to wear.”

Some have opined that this is not the right way to describe “a vulnerable claimant” but, other than her excessive alcohol consumption, there is no indication in the judgment of the claimant having been inherently otherwise vulnerable. The commentators who have leapt to her defence and who have deprecated the opening paragraph of the judgment would, no doubt, express precisely the same worthy sentiments in the case of a drunk and disorderly man who had behaved in exactly the same way, ending up in the same sorry state as Ms. Pile did, and who had been vulnerable through drink and the soiling of his clothes.

Others might, however, share Mr. Justice Turner’s view. Among them might be the taxi driver, who had the pleasure and cost of cleaning the claimant’s vomit from his taxi, instead of driving it in order to earn his living. He might be joined by the police officers, who had to deal with the claimant in the state into which she had chosen to drink herself, including the four female officers, doing their job, who later had to answer in court accusations of having assaulted and violated her human rights for having changed her into clean clothes.

In his judgment, Mr. Justice Turner noted, as a comment separate from his reasoning, that [3]:-

“some members of the public may well have found it to have been a grotesque result if a woman who: has rendered herself insensible through drink; abused an innocent taxi driver; behaved aggressively to police officers trying to do their job and vomited all over herself should then be found to be entitled to compensation because those same officers, as an act of decency, had then changed her into clean and dry clothing at a time when she was too drunk to know or care.”

When a judge explains what “some” members of the public “may well” think, she or he is in fact saying that every single right-minded citizen (apart from the claimant) definitely thinks this.

Happily though, when a point of high constitutional principle is at stake, the law of England and Wales is blind to such trifling concerns.

The arguments on appeal

Assault

The claimant complained that police officers should have "monitored [her] until such time as [she] could safely remove her own clothes". Mr. Justice Turner described this complaint as “risible”.

‘Risible’ means ‘provoking laughter through being ludicrous’. ‘Ludicrous’ means ‘so foolish, unreasonable, or out of place as to be amusing’. Seasoned advocates know that, when a judge describes your argument in this way, it is time to think of a completely new, and far better, argument. Such a pronouncement is about a '7' on the judicial Richter scale.

The claimant argued that the police have no “power” to change the clothing of a detainee incapacitated by drink, however contaminated such clothing may be by bodily fluids. She contended that this applies even where leaving the detainee in her own clothes posed a hygiene risk to her and to those coming into contact with her and notwithstanding the degrading condition in which she would otherwise be left to spend the rest of the night wallowing in her own vomit or worse. For a number of female officers to change her into clean clothing, using no more force than necessary, and without objection from her, amounted to a trespass to her person, it was argued.

This, the judge said, was a “brave proposition”. Seasoned advocates know that when a judge says this, he or she is not complimenting you. When a judge describes a proposition you adumbrate in this way, she or he has run out of hyperbole, short of expletives, with which to describe how ‘risible’ the proposition really is and you should self-isolate / socially distance from it immediately.

The claimant relied on s.54(6C) of Police and Criminal Evidence Act 1984, which provides that: “A constable may only seize clothes and personal effects in the circumstances specified in subsection (4) above” as a prohibition on removing her vomit-soaked clothing at all. The s.54(4) conditions are that the custody officer believes that the detainee may use the clothes and personal effects to cause physical injury to himself or another, to damage property, to interfere with evidence, or to assist him to escape or that he has reasonable grounds for believing that they may be evidence relating to an offence.

Nowhere do the s.54(4) conditions include the fact that the clothes are vomit-soaked, ergo their removal and replacement with nice clean clothes is an assault, so the argument boldly goes. (NB: a ‘bold’ argument is a ‘brave’ or ‘risible’ one).

Not so, said the judge, pointing to the combined effect of ss.54(6A) – (6C), inserted by s.147(b) of the Criminal Justice Act 1988. S.54(6A) broadens the power to search those in police detention, geographically, to those not in a police station, temporally, to "any time” and, personally, to any constable, for the specific purpose of ascertaining whether the detainee has with him anything which he could use to cause physical harm to himself or another. S.54(6B) empowers a constable to seize anything found in such a search, but makes this power subject to s.54(6C). The function of s.54(6C) is therefore to circumscribe the powers of seizure in a search of a detainee other than by a custody officer on the detainee’s arrival at a police station, having been arrested elsewhere. It does not create a freestanding right on the part “of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit soaked clothing”, whatever the claimant’s unique wishes.

The judge also pointed to para 8.5 of PACE Code C which provides:-

“If it is necessary to remove a detainee's clothes for the purposes of investigation, for hygiene, health reasons or cleaning, removal shall be conducted with proper regard to the dignity, sensitivity and vulnerability of the detainee and replacement clothing of a reasonable standard of comfort and cleanliness shall be provided.”

Part of the care of a detainee may involve the replacement of soiled clothes.

Human Rights Violation

The claimant also argued that her article 8 right to respect for her private life had been violated by her being placed in a police cell monitored by CCTV and by the removal and replacement of her clothes. She also contended that a male inspector had violated her article 8 right in the following circumstances: after the female officers had removed the claimant’s clothing, she had continued to struggle and they had left the cell with her soiled clothes in a bag, without putting clean clothes on her but leaving them out for her. The inspector had looked through the hatch of the cell door to check on her well-being, not being aware that his colleagues had had to leave her in her underwear (they later dressed her).

The judge pointed to the proviso in article 8 para 2, which permits proportionate interference by a public authority, such as a police officer, where it is in accordance with the law and is necessary in a democratic society in the interests of protection of health or the protection of the rights and freedoms of others.

The claimant had required monitoring because of her behaviour and because of her intoxication. Indeed, she had lost her balance in the cell and banged her head (while monitored – so that officers were able to render assistance, seeing her fall on the remote link), sustaining injury for which she had required hospital treatment. Tellingly, although she had (unsurprisingly) sued the force in negligence in respect of this injury, the dismissal of this head of claim by the Recorder had “remained wisely unchallenged in this appeal”. Perhaps this claim was too risible and bold to persist in, even for the brave representatives of the claimant.

The claimant finally argued that the involvement of four (female) officers in changing her clothing amounted to a breach of her article 8 right in the light of annex A11(c) of PACE Code C which provides:-

"When strip searches are conducted:

(c) except in cases of urgency, where there is risk of serious harm to the detainee or to others, whenever a strip search involves exposure of intimate body parts, there must be at least two people present other than the detainee. The presence of more than two people, other than an appropriate adult, shall be permitted only in the most exceptional circumstances…"

The judge found that the use of four officers (rather than two) had been justified by the circumstances and by the fact that the claimant had been struggling. Fewer officers might have found it harder to control the claimant and may therefore have sustained injury.

The officers who dealt with the claimant neither assaulted her nor violated her human rights. They took reasonable care of her, including her medical needs (having fallen over and banged her head) and her hygiene and welfare needs, lying in vomit-soaked clothes. It is a pity that it took a court decision (on appeal from another) to establish something that some members of the public may well have found to have been obvious. 

Officers can act with confidence in similar cases to this one in the future without fear of ‘brave’ or ‘risible’ claims.