Recommendation - Metropolitan Police Service, October 2015

• Inspector Roget McMillan, Business Improvement Team, Met Detention (responsible for organisational learning matters within the custody context)
• PC Ian Lynn-Mulholland, Curriculum Design Team, Met Training (responsible for training materials delivered to recruits)
• Ted Henderson, Stop & Search Team, Territorial Policing Capability & Support (responsible for best practice in stop and search procedures by in-service officers)

Dates, relevant parties, and communications have where appropriate been confirmed by reference to emails, meeting minutes or other documents.  The following is based on a review of such documents, and the review in turn of this responsibility by the above parties.  The materials in this response have been reviewed on my behalf by Detective Sergeant Tanya Murray, the Directorate of Professional Standards’ Organisational Learning Manager.

Context: Types & Location of Searches

As your report notes, the lawful conduct of the three broad categories of personal search – intimate, strip and ‘JOG’ (i.e. ‘Jacket, outer clothing, gloves’) are principally governed by the provisions under Annexe A of Code C of PACE, which covers the conduct of Intimate and Strip Searches for detainees in custody, and Code A of the Police & Criminal Evidence Act 1984 (‘PACE’) which covers the application of stop and search powers for persons not under arrest but suspected of criminality.

As you are aware, a ‘strip search’ of a detainee in custody is defined as “...a search involving the removal of more than outer clothing (including shoes and socks)”, [Part B of Annex A of PACE Code C para 9].  Strip searches can only be conducted on a person who is in police detention.  This definition of a strip search does not apply to stop and search encounters.  One cannot conduct either a strip search or intimate search under stop and search powers, a distinction of paramount importance.

Stop & Search

As noted above the conduct of stop and search is governed by Code A.  Under this code an officer cannot ‘strip search’ or ‘intimate search’ a person, though a ‘more thorough search’, (e.g. under outer clothing to a T-shirt, for example) not exposing intimate body parts, may be conducted out of public view, and away from a station.  In effect, therefore, there are four levels of search that can be conducted in a stop and search encounter;

1. A search involving the removal of no more than ‘JOG’ (‘jacket, outer clothing, gloves’).  This can be conducted by an officer of any gender in public.
2. A more thorough search involving the removal of ‘JOG’, footwear and headwear. This can be conducted by an officer of any gender and should be out of public view, which may include in a police vehicle.
3. A more thorough search (any more than JOG or footwear/headwear). This must be conducted by an officer of the same gender and out of public view, including in a police vehicle.
4. A More Thorough search involving the exposure of Intimate Parts (MTIP)

This last must be conducted by an officer of the same gender and out of public view but explicitly not in a police vehicle.  This represents approximately 1% of all searches conducted.

Due to analogous nature of strip searches and MTIP searches, Code A 3.7 sensibly directs officers to follow the guidance set out in Code C for the conduct of strip searches, although it is not a strip search.

Searching of Detainees

As noted above Code C of PACE deals with the detention, treatment and questioning of persons and Annex A in particular covers the conduct of Intimate and Strip Searches for detainees in custody.

Much stricter rules govern the authority levels (inspector or above), location (police station or medical venues) and personnel (medical staff only) necessary to conduct a lawful intimate search.

An intimate search, as defined in s65 PACE, “...consists of the physical examination of a person’s body orifices other than the mouth”.  This would therefore include the anus, vagina, nostrils and probably ears.  The original Home Office Circular on PACE said that a physical insertion into the orifice would constitute an intimate search as would, “...any application of force to a body orifice or its immediate surroundings” [see Zander on PACE 6th Edition p253].

As has been demonstrated, there are a number of possible venues and a range of differing levels of search.  Additionally technical and legal issues may arise when seeking to search juveniles or persons requiring appropriate adults, particularly in urgent circumstances where the search is conducted in the absence of an appropriate adult.  As a consequence of the variety of circumstances of these searches, it is considered that no ‘one size fits all’ approach to officer and staff training is the best response.

Indeed it is perhaps in part due to the inherent complexity of the issue, that as your investigator notes, [paras 151-3], there is currently little national guidance in practical training for ‘searches’ outside of the officer-safety context:

“...the ACPO Personal Safety Manual refers the reader to a local POLSA (Police Search Advisor) for advice on strip searching...PACE stipulates there is to be no physical contact made with any orifice other than the mouth, however it does not define where an orifice starts and ends...It would also seem that formal training on strip searches to officers is limited or non existent, and does not go into detail about what areas of a person’s body can and cannot be touched.”

In the view of the MPS Directorate of Legal Services, it seems that the touching or application of force to areas in the immediate vicinity of any body orifice would constitute an ‘intimate search’ for the purpose of PACE.  It follows, therefore, that any physical contact made with any other area of the body would not constitute an ‘intimate search’, even though the contact may be made with what most people would consider an ‘intimate area’ (e.g. breasts).

Likewise any intentional physical contact with the genitals (e.g. moving or lifting them) should be considered as part of an ‘intimate search’.  This is because there is a clear proximity to an individual’s ‘body orifices’ (as referred to in s65 PACE) and it seems ill advised for different officers in individual cases to try and go about differentiating intimate body parts as closer and further away from orifices without a clear and structured direction on the subjects at least.

Meanwhile, law and practice in the proper conduct of searches continues to evolve, presenting trainers with an ever changing procedural landscape.  For example, following recent court decisions against the police regarding the long established practice of requesting detainees in a strip search to squat to ensure nothing is concealed, guidance from the national College of Policing, in their practice notes on ‘Detention and Custody, Control, Restraint, and Searched’, is that

‘...detainees should not be asked to squat during a strip search’. 

(https://www.app.college.police.uk/app-content/detention-and-custody-2/control-restraint-and-searches/, accessed 02/12/15).

As a result, a practice note was circulated to all MPS police officers and staff via an intranet news item revising strip search procedures to eliminate the offending command.  As this example illustrates, we endeavour always to strike a balance between necessary precautions to protect the safety of a detainee, officers and staff, versus a changing procedural landscape, and the undoubted intrusion into personal privacy these procedures involve.  As Michael Zander notes:

“intimate searches may include the physical investigation of a person’s vagina or anus without his or her consent.  It is hard to imagine a more intrusive or humiliating procedure which would be lawful.” (Zander on PACE 6th Edition 5-12).

Response to your recommendation

We accept in part the conclusion your investigator reached, having spoken to subject area experts in training, officer safety and detention [paras 98-101], that:  “...the MPS were not able to provide any evidence that officers receive any formal training on carrying out strip searches; instead knowledge from more experienced officers is passed on to lesser experienced officers in an informal manner ‘on the job’.” [para 97, our emphasis]

We believe however that there is a continuing role for practical ‘on the job’ learning for new officers from their more experienced peers, and this is reflected in the 5-week ‘Coached Patrol’ module all probationer officers experience at the start of their service, and which will include searching of persons in a variety of contexts.

In relation to stop and search and MTIP’s we would also note that to acknowledge this sensitive area of police work the MPS has in fact historically offered a variety of support mechanisms.  For example, as early as 2004 the Stops & Searches Team was formed, within the Territorial Policing Command, to oversee the implementation of the recommendations that came from the then-MPS scrutiny on MPS use of stop and search.  Since that time, this team has had its remit widened to incorporate all MPS stop and search issues, covering:

1. Supervision and Leadership
2. Transparency and openness
3. Operational use
4. Performance
5. Intelligence and Tasking
6. Training and Knowledge

The team officer practical guidance to practitioners through a variety of channels (presentations, reference documents, telephone advice etcetera) all accessed from their intranet web site.  Pre-eminent amongst there is the current ‘Stop & Search toolkit’, available 24/7 to all officers and staff, setting out clearly the requirements and limits of a MTIP and the distinction between a MTIP and an intimate search.  This is further supported by a ‘Frequently Asked Questions’ page:

(http://www.met.police.uk/foi/pdfs/priorities_and_how_we_are_doing/corporate/stop_search_qa_october20115.pdf),

Available both internally on the MPS intranet, and externally available to the public through the MPS internet site; and a leaflet for distribution to members of the public, available to all Boroughs, which sets out in clear, jargon free terms police powers and obligations during the conduct of any search, incorporating an explanation of the different types.

The MPS is also the first force to introduce supervisory authority to perform an MTIP, in excess of the legal requirement.  To mirror the procedure for an in-custody strip search, the authorising officer must be a sergeant or above.  To ensure appropriate governance of the tactic, all MTIP’s are not recorded online, auditable, and monitored as part of the corporate performance meetings.

The conduct and grounds required for MTIP’s are covered by the Stop & Search Team in regular ‘Masterclass’ presentations which are delivered to front line officers.

Meanwhile, in addition to their Coached Patrol experiences, all recruits receive a basic training in the practical, legal and officer safety aspects of Section 1 PACE Searches; whilst custody officers and staff receive an enhanced level of training taking in the additional obligations raised by the strip and intimate searches which most commonly occur in a custody context.

In light of your recommendation however, I can confirm that the following enhancements to this flexible response have been undertaken:

PC Lynn-Mulholland confirms that, effective immediately, the lesson plans delivered to all probationer officers during their Regional Learning Centre attendances have been revised.  In stop/search input for all recruits there will now be a discussion on the different types of search i.e. Jacket, Outer clothing and Gloves; more than Jacket, Outer clothing and Gloves; Strip search; and Intimate search.

During the input of the detention procedure there will not be a more in depth session on strip searching.  Officers will have already been taught the theory on their Certificate in Knowledge of Policing (CKP) course, and this input will aim to consolidate that learning.  In practical terms, this will be carried out by splitting the class into small groups and having the trainer pose the following questions:  “What is a strip search, when can you carry out a strip search and what are your actions under PACE whilst carrying out a strip search?”  In addition to this the trainer will elicit from the students what one can and cannot touch and at what point the search would become an intimate search, including relevant authorities.  A question will also be added to the appropriate exam to confirm that the students have retained this learning.

Meanwhile, Met Detention have developed a ‘fact sheet’ for all officers on the proper conduct of Strip Searches, which will be available from their website, and available to all officers about to embark on this task.

Finally, I am advised that Met Training are currently liaising with Thames Valley Police regarding obtaining access to a ‘strip searching’ training package they have developed for serving officers.  If this is found to be suitable, it will be made available for use on serving officers’ regular professional development days.

We will of course also respond positively to any national initiatives from the College of Policing, or moves towards an ‘accredited professional practice’ stance on this issue, should these be forthcoming as a result of your separate national recommendation.