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||Neutral Citation Number:  EWCA Civ 364
||Case No: B2 2013 3526
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Saggerson
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
LORD JUSTICE HAMBLEN
Heather Williams Q.C. and Rajeev Thacker (instructed by Deighton Pierce Glynn)
for the Appellant
Mark Ley-Morgan (instructed by the Director of Legal Services) for the Respondent
Hearing date : 8 March 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Sir Brian Leveson P :
- At 4.00 pm on 12 June 2009, the appellant, Walid Yousif, was arrested by officers of the Metropolitan Police. He was taken to Paddington Green police station where he arrived at 4.25 pm. He was eventually bailed at 3.51 am the following morning, just short of 12 hours later. He later complained about his treatment to the Independent Police Complaints Commission and, on 14 June 2010, commenced civil proceedings. On 14 November 2013, in a reserved judgment following a four day trial, His Honour Judge Saggerson dismissed the claim in its entirety. Leave to appeal was granted by Patten LJ, having been initially refused on paper.
- The civil action covered three distinct complaints. The first was his treatment at the time that he was arrested. The second concerned what happened at the police station and the third was in respect of certain items of property that he alleged went missing either from his motor car or his person while he was in the hands of the police. This appeal is brought only in relation to the second of these complaints which initially alleged assault, negligence and breaches of Articles 3, 8 and 14 of the European Convention on Human Rights ("ECHR"); it is now pursued only in relation to assault and breaches of Articles 3 and 8.
- In order to provide the context, it is necessary to say something about Mr Yousif himself. Now 52 years of age, married with three young children, Mr Yousif is an Iraqi national who, it is common ground, was constrained to flee Iraq as a result of mistreatment and torture at the hands of the authorities. As a result, he has had to live with a number of disabilities including injuries to his left leg and right arm but, most significantly, with a personality disorder and paranoia; he is quick to anger and suffers post traumatic stress disorder. He has received psychiatric treatment. All this means that he has been unable to participate in society in a way that he would prefer.
- Mr Yousif has had many brushes with the law, having been convicted of crime on a number of occasions (including for common assault in relation to a motorist whom he confronted and which led to his arrest on 12 June 2009). In addition, he has been arrested on other occasions following allegations of assault on members of his family but none of these other occasions have led to convictions. Their significance is that the judge concluded that Mr Yousif was "only too familiar with police station procedures as they affect arrested persons". He was described as "a volatile and angry man ... plainly very aware of his own entitlements".
- As a witness, for reasons which he elaborates at some length, Judge Saggerson resoundingly rejected Mr Yousif's evidence "in its entirety". That involves rejecting all the factual allegations in relation to the first and third complaint although the judge's comprehensive analysis of these was doubtless also material to his overall assessment. He observed:
"I conclude that this claimant did (once he arrived at the police station) deliberately make as much of a nuisance of himself as he could; self-consciously and deliberately making life as difficult as possible for the police officers at Paddington Green in the custody suite, knowing exactly what the processes were and knowing exactly what was going to happen and how events were likely to unfold. He would not necessarily have anticipated ever single step of the process from his being taken to the sergeant's desk to him later being bailed, but he knew enough to have a clear, general idea as to what was going to happen. He embarked on a deliberate programme or campaign designed to set himself up as a victimised and helpless, frail and vulnerable individual."
- Ms Heather Williams Q.C. (for Mr Yousif) does not seek to challenge the judge's assessment of her client and does not rely on his evidence for the purpose of mounting this appeal. She does, however, challenge the suggestion that he was not vulnerable (relevant, as I shall explain, to his need for an appropriate adult) but the judge was not suggesting that the agreed medical evidence as to his background was not accurate but only that he was deliberately acting up specifically to enhance the undoubted difficulties that he faces.
- I conclude my summary of the judge's assessment of Mr Yousif by referring to what is described as his "uncontrollable temper ... something he aims at himself". Judge Saggerson went on:
"By that I mean he is prepared to self-harm as a result of winding himself up in order to create the impression that he is likely to either commit suicide or attempt suicide. I conclude on the basis of all the evidence that has been presented on this case, that there was no actual risk of [him] self-harming on this particular occasion. He was transparently faking his own behaviour in order to create the impression that he might, or otherwise might appear to be vulnerable by doing things like biting the cushion that he had been provided with, trying to tear the mattress, trying to cut himself on the edge of tiles on the wall, behaviour of this sort demonstrates that his behaviour was out of control..."
- I do not cite this evidence for the purpose of denigrating Mr Yousif but because one of Ms Williams' submissions is that the case in relation to the way in which her client was treated in the police station is proved simply from the CCTV which covers the major incidents about which complaint is made and which I have watched extensively, along with the documentary record and what she contends is unsatisfactory evidence from police witnesses. She argues that the adverse credibility finding is of less importance than might ordinarily be the case because the CCTV footage puts this court in as good a position as the judge to draw conclusions about the treatment which Mr Yousif received.
- I would reject this submission. Obviously, the CCTV provides irrefutable evidence of physical movements and, to such extent as there is a transcript, of what was said, but it says little of the impression conveyed and received or, as a consequence, the propriety of judgements reached. It was for the judge to hear the evidence and test that evidence against what he could see on the CCTV which was viewed in detail with officers cross examined at length about it. That is exactly what happened. As Mr Ley-Morgan for the Commissioner noted, the judge's assessment of credibility informed and influenced his interpretation both of the CCTV and the evidence of the police.
- In that regard, Ms Williams criticised some of the language used by the judge and, further, the fact that he reaches some conclusions later in his judgment than was appropriate in the chronology he followed. I reject these criticisms as well and can do no better than rely on the well-known observation of Lord Hoffmann in Biogen Inc v Medeva plc  UKHL 18 (at ) in terms:
"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation." It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation."
That is even more so where credibility is at the core of the decision making process, or where, as here, the court is seeking to evaluate the judgment (in relation, for example, to the degree of urgency with which a particular decision has to be reached).
- With that introduction, it is appropriate to analyse in detail the initial decision taken in relation to Mr Yousif (namely, to subject him to a strip search and to leave him unclothed) and then shortly to deal with the chronology thereafter. I will then turn to the allegations of tort and breach of the ECHR.
- The circumstances of Mr Yousif's arrest outlined to the custody sergeant were that he had been seen by an off duty police officer pulling another male out of a BMW motor car and then hitting him a number of times. As the procedure was followed, the judge noted that he appeared to be standing without difficulty in front of the custody sergeant and was described in the custody record as co-operative. There was no aggressive body language or otherwise untoward behaviour on the part of the police. It is clear from the transcript of the CCTV that he complained that he could not move his arm/hand and that an officer had prevented him from getting his stick. He said he did not understand why he was there and said that he had been grabbed. A risk assessment was undertaken and a note was made of injury to his right arm and left ankle. He also referred to permanent mental health problems.
- He was then asked whether he had ever tried to harm himself to which he said "yes". Critically, he then refused to say how long ago or how recently, or even to specify a month. When he repeatedly made no comment, he was told (doubtless on the basis that he provided answers to the questions he was asked) that it would mean that someone would sit with him in a cell. He continued to make no comment and the officer (Sgt. Wilson) said that he had to behave; although not entirely clear, she referred to the impact on her job if he killed himself. He then refused to engage in relation to that issue and spoke about his children on the street; he was told that the police would help him. In fact, there is a note at 4.57 pm that his wife had been contacted and was collecting his children from school.
- He was then asked again if he had tried to commit suicide and he again said that he had. He was asked how long ago and, when he failed to reply, Sgt Wilson asked whether he understood why she needed to ask. He said he did not understand and she told him that the police were not going to put him in a cell and return an hour later to find that he had strangled himself. He was then asked again, three times, whether he was feeling suicidal. When he refused to respond, the officer made a decision that he would have to be subjected to what is described as a strip search but, more accurately, to a search and to removal of his clothes which he could otherwise use to harm himself.
- The judge concluded that the decision that Mr Yousif would have to be dealt with in this way was "briskly articulated", based on her "considerable experience" and "intuitively based on that experience in the light of the insufficient information that she had about [his] previous history of self-harming". The judge went on:
"In making this decision, I conclude the police sergeant was not only justified but she was correct. The risk to the claimant was manifest. The sergeant had no alternative but to take what the claimant said at face value ... The sergeant could not possibly be expected to conclude and it would be risky for her to do so 'on the spot' that the claimant was in fact deliberately trying to make himself appear vulnerable when in fact on this occasion, I conclude, that he was not."
- The judge went on to explain that the search was necessary not only because he might have about his person some weapon, tablet or other contraband that he might use to harm himself but also that he could use some item of clothing for the same purpose. He recognised that it was well understood that in the wrong hands almost anything (and any part of clothing) could be used to form a ligature or self-harm. He concluded that the assessment both to remove his clothing and to deprive him of it was justified.
- As to what happened thereafter, the judge found as a fact that the detention log was an accurate record of events that then unfolded. The first was the strip search, undertaken at 4.45 pm in a cell proximate to the custody area, equipped with CCTV, by three officers, one of whom simply held open a large exhibit bag to receive the clothing. Save for incidental touching of the Mr Yousif's upper body, there was no physical contact between him and the officers. The CCTV was visible to the detention officer (Mr Henley) although it was not impossible for the custody officer to have seen it. When stripped of his clothing, Mr Yousif was left alone in the cell stating that he would blow his brains out smashing them on the cell door at which he continued to spit. He was then monitored on the CCTV being visible to Mr Henley on a continuous basis. Although the custody record required him to be visited at least every 15 minutes, actual visits (looking through the wicket in the cell because of Mr Yousif's behaviour) occurred less frequently.
- What happened was that Mr Yousif commenced what was described as 'a campaign of misbehaviour', involving loud shouting and screaming, kicking and spitting at the cell door, in such a way that the judge found that he was "behaving deliberately in this way deliberately designed to make a spectacle of himself". He rejected the notion that this was a manifestation of mental frailty. He concluded that after the search:
"the claimant began to lose control of himself or rather he deliberately misbehaved and continued to deliberately misbehave in a way designed to make the custody staff consider that he was a substantial risk to himself and also mentally ill."
- As a consequence of a request by Mr Yousif (presumably prior to the strip search), at 5.00 pm, Sgt Wilson called a doctor. At 5.36 pm, Mr Yousif was visited with the spy hole opened: Mr Henley noted that Mr Yousif spat at the spy hole which was then shut. He returned at 6.07 pm and it is significant to note that Mr Henley (who spoke to him through a perspex screen) said that if he stopped self-harming he would be given clothes. The response was that Mr Yousif said that he would kill Mr Henley. At 6.18 pm, because he was tearing the cell pillow and he had urinated on the cell mattress, these were taken off him.
- At 6.42 pm, Dr Frazer arrived and saw Mr Yousif: the record notes that the examination of his condition, or perhaps more accurately, the conversation with him (from outside the cell) took some ten minutes. The doctor recorded as medical advice that he could only be dealt with when he decided to co-operate and recommended that he was fit to be detained, did not require an appropriate adult and did not need a review. He believed that the risk of self-harm was 'standard'. His opinion is noted:
"The description of his behaviour suggests increasingly difficult and disruptive behaviour – taking off clothes, head banging, urinating/flooding cell. This is theatrical aimed at producing an effect and is not caused by mental illness."
- At 7.00 pm there was a change of custody officer and a decision was taken to move Mr Yousif to a different cell which was further than the 6-7 metres from the reception desk being the location of the cell in which he was held. The custody record contemporaneously notes that he "continues to shout and swear, leaving staff unable to talk on phone etc". Thus, 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 (at 7.28 pm) was undertaken without the police providing clothing or a blanket to Mr Yousif; it was caught on CCTV and was effected after a police officer was seen to exchange words with him. That officer puts Mr Yousif's arm behind his back with what the judge described as "the bare minimum amount of force required" and he is moved "quickly and ... efficiently" taking no more than 10 seconds. Judge Saggerson found:
"In my judgment, given the behaviour of the claimant up until that point, the sergeant could have had no possible alternative but to deal with the claimant in what can be seen to be a markedly restrained way ... with what can be seen as the absolute minimum of force required in order to achieve this end. Given the claimant's behaviour up until that point, I conclude that this was necessary."
- The judge accepted the evidence of Sergeant Pollock that Mr Yousif was not offered clothing or a blanket for much the same reasons as he had not previously been offered a blanket. These revolved around the need to maintain absolute control with the barest minimum force, the prospect that a blanket (and the advice that its use would have entailed) created "an unnecessary and potentially difficult distraction" and, implicitly, that it would have generated another opportunity "to start kicking off". Although obviously lacking in privacy, the judge concluded that one officer deliberately followed the group to shield what was happening and that the officers sought to act as a protective human curtain for him.
- The judge also noted that, shortly thereafter (at 7.51 pm), Mr Yousif had calmed down and spoke normally to an officer; he was then provided with a blanket and, at 8.09pm, he was given tracksuit top and trousers. Moving on, however, at nearly 9.40 pm, Mr Yousif was seen to be fashioning a noose with the blanket and it had to be removed. This behaviour only serves to provide some insight into the attitude of Mr Yousif and exemplifies the risk that the police had earlier foreseen.
- At 10.08 pm, that is to say just over three hours after he had previously seen him, Dr Frazer spent some 14 minutes with Mr Yousif. The doctor noted him as 'just calmed' and commented that his lack of movement 'now belies earlier activity ripping pillowcase/attempted strangle'. The doctor remained of the view that he was fit to be detained and did not require an appropriate adult but increased the risk of self-harm to 'medium'. His advice was:
"Behaviour absolutely typical of someone with a personality disorder not psychiatric illness. May continue to behave and complain, creating problems to trump all solutions. Any but urgent med[ical] problems should be sorted out through his own GP."
- Just over two hours after this examination, Mr Yousif was interviewed under caution. He was articulate, fully in command of his faculties, able to understand the questions and to give logical and coherent answers; there was no language difficulty and the judge concluded that through the interview "as at all times throughout the proceeding events", he "fully comprehended precisely the nature of the criminal charges ... and what was happening to him at the police station". His release was later disrupted when he did not provide an accurate address (the judge concluding that he well knew that he had do so in order to be bailed). On release, he went by taxi to hospital but there is no evidence he received treatment of any significance or that he sought any medication. I conclude the summary by noting that he later appeared at Southwark Crown Court where, in relation to the driver, having been charged with affray, he pleaded guilty to common assault and received a community sentence.
- Before turning to the judge's consideration of the law, it is appropriate to mention breaches of the Codes of Practice issued pursuant to the Police and Criminal Evidence Act 1984 ("the 1984 Act") and the guidance issued through the Association of Chief Police Officers. The officers were cross examined about these standards and the judge made findings in relation to them.
- The first relates to the need for an appropriate adult. Putting to one side what Dr Frazer later said and the fact that the judge concluded that he was deliberately and falsely making out that he was more mentally frail than he was, Sgt Wilson accepted that the answers that Mr Yousif had supplied in the initial risk assessment should have triggered the procedure which would have led to the attendance of an appropriate adult. The judge noted that this was the only complaint made by Mr Yousif upheld by the Independent Police Complaints Commission but went on to infer that none would immediately have been on hand and there was no prospect of waiting when the sergeant had been given worrying information about previous self-harm and, one might add, there had been a positive refusal to co-operate with the provision of detail to further the risk assessment.
- As for other options, the judge considered constant monitoring or some other option rather than the removal of clothing but concluded that they were theoretical and did not "genuinely and reasonably present themselves" to any of the officers at the time. Whether from the evidence or judicial notice, he observed that Paddington Green was one of the busiest custody areas in any central London police station likely to be holding "a good number of detainees ... in the custody suite some of whom will be volatile". This led the judge to emphasise his conclusion that the strip search and confiscation was "not only justified but correct".
- The other concern identified in the judgment concerns refreshment which, according to the custody record, was limited to two cups of water. The explanation, which the judge accepted, was that Mr Yousif's behaviour was not conducive to his being offered food or drink and that at no stage, even when he had calmed down, did he ask for food or refreshment. The judge did not accept that lack of food in any way affected Mr Yousif's behaviour or his ability comprehend what was happening.
The Judge's Analysis
- Turning to the propositions of law, the judge considered the torts of assault and trespass and the relevant parts of the ECHR. As to the allegation of assault (in relation to events prior to Mr Yousif's arrival at the police station), he said that it turned entirely on his assessment of the credibility of Mr Yousif. Having accepted the evidence of the police officers, the claim failed, the judge expressing surprise that "fabricated claims" had been put forward.
- In relation to events in the police station, the judge started with a consideration of Article 3 of the ECHR. He noted that ill treatment must reach a minimum level of severity to qualify as inhuman or degrading and that the court had to consider all the circumstances, including duration, physical and mental effects (with the health status of Mr Yousif), whether the object was to humiliate or debase (not itself conclusive) and whether the humiliation suffered went beyond the inevitable impact of legitimate treatment by the police.
- It is appropriate to set out one paragraph from Judge Saggerson's judgment because it is specifically not challenged on this appeal and provides an appropriate starting point from which to consider what is alleged. He said:
"There is no room for doubt in my judgment here that there was no questionable motivation on the part of any of the police officers at any point during the course of [Mr Yousif's] detention. There was no purpose held by any of these officers to degrade, debase or humiliate [him] or to treat him other than in what I have previously described as an ordinary and matter of fact way. What the police officers did they did in good faith, honestly and genuinely believing that what they were doing was in the interests of [Mr Yousif] himself. The officers in the custody area took [his] behaviour at face value and considered it to pose a real risk that he might do serious harm to himself. The move from one cell to another was a perfectly genuine attempt ... to calm the situation down and, as events turned out, it seems to have had the desired effect."
- The judge goes on to examine the breaches of Code C of the Codes of Practice (in relation to strip searches) and potential breaches of applicable guidance and s. 54 of the 1984 Act but observes that to regard what happened as merely a strip search was "fundamentally to misunderstand what the genuine concern of the custody sergeant was". He concluded that the absence of an appropriate adult at that juncture was of no consequence and that, in any event, Mr Yousif would have rejected any intervention; the police would still have had to proceed with the strip search which he concluded was carried out with due respect to Mr Yousif's dignity and with minimum possible interference without debasing or belittling elements: the motives of the police were "unimpeachable throughout". Having dealt with possible sight of the strip search on the monitor, he concluded (the last sentence also being one which is agreed on this appeal):
"I am entirely satisfied that the [Commissioner] has proved on the totality of the evidence that such embarrassment, indignity and for that matter humiliation as [Mr Yousif] may have suffered as a result of this part of the procedure was no more than was inevitable given that this process was one which had to be undertaken. The aim was legitimate and in the interests of [Mr Yousif's] own safety."
- The judge considered that alternatives to the search were rightly rejected and that the regime was both justified and correct. He pointed to Mr Yousif's behaviour later that evening and his apparent attempts to use less promising implements to pretend to do damage to himself. Close observation, he concluded, was unlikely to have produced the desired result. As for the cell transfer, accepting that the circumstances were less than ideal, he concluded that there "was little if anything by way of reasonable alternative". Suffice to say, he rejected the claim under Article 3 and in relation to assault.
- As for Article 8 and the requisite respect for private life, the judge repeated that the police had acted "in a proportionate manner honouring the dignity of what was proving to be a difficult detainee". They had to balance the safety of Mr Yousif, the safety of others (including themselves) and Mr Yousif's personal integrity. Bearing in mind the good faith and the absence of debasing motives, he rejected this claim as well. Neither did he consider that the presence of an appropriate adult would have made any difference.
- Under Article 14, the judge considered the status of Mr Yousif's health, noting that whatever his problems historically might have been, the injuries and illnesses were not such as were "materially operating on [Mr Yousif's] mind on the days he was in custody". Neither did he believe that the underlying mental health issues (which he did not doubt) materially operated on his mind, thinking, understanding or behaviour on the day in question. In the light of all the evidence (including that recorded by the doctor), he concluded that Mr Yousif:
"was deliberately behaving badly in order to falsely create the impression that he was potentially suicidal and self-harming and in order to make the police officers' lives and the police station procedure as difficult, complex and convoluted as possible".
- In that context (but in no other, contrary to the submission Ms Williams made), the judge concluded that the claimant was not, whilst in custody a vulnerable person "despite his best efforts to create the impression that he was". As for the vulnerability, although no appropriate adult was called, a doctor was called twice. In the circumstances, this claim was also rejected as were the claims in negligence and in relation to missing property etc. These last decisions are not the subject of appeal.
- I make no apology for setting out the facts and the judge's findings and conclusions in some detail: they are thorough and comprehensive. Nevertheless, although accepting the complete rejection of the evidence of Mr Yousif and a number of the substantive conclusions reached by the judge, Ms Williams mounts a number of arguments in support of the proposition that he reached the wrong decisions in relation to the tort of assault (there being no lawful justification for the admitted use of force upon him) and to Articles 3 and 8 of the ECHR (on the grounds that his treatment at the police station violated his rights under these provisions).
- Ms Williams went through the law relating to the treatment of detainees in some detail. She pointed to s. 54(4)(a)(i) of the 1984 Act (which permits clothing and personal effects to be seized if the custody officer believes that the person from whom they are seized may use them to cause physical injury to himself or another) and Code C of the Code of Practice for the detention, treatment and questioning of persons by police officers (which by s. 67(11) of the 1984 Act a court "shall take into account where it appears relevant to any question arising in the proceedings before it"). These provisions must, of course, be seen in the context of s. 67(10) of the 1984 Act which underlines that failure to comply with any provision of the Code does not "of itself" generate liability to criminal or civil proceedings.
- The relevant parts of the Code can be summarised in this way. First, they are to treat anyone who an officer has suspicion may be mentally vulnerable (in the absence of clear evidence to dispel that suspicion) as such (para. 1.4) so that an appropriate adult must be informed and invited to attend the police station (para 3.15); the detainee must be advised of the duties of appropriate adult (which include giving advice and assistance) and be permitted private consultation (para 3.18). Second, strip searches may only take place if it is considered necessary to remove an article which a detainee would not be allowed to keep (para. B10 to Annex A) and then in a place where he cannot be seen by anyone who does not need to be present nor by a member of the opposite sex except an appropriate adult requested by the detainee (para. B11(b) to Annex A). The presence of more than two people during such a search (other than an appropriate adult) shall be permitted only in the most exceptional circumstances and detainees shall not normally be required to remove all their clothes at the same time (para. B11(c) and (d) to Annex A). Finally, a strip search shall be conducted as quickly as possible and the detainee allowed to dress as soon as it is complete; if clothing must be removed, replacements shall be provided (para. B11 (g) to Annex A and para. 8.5 of the Code respectively).
- Ms Williams also referred to the guidance issued by the Association of Chief Police Officers in relation to Safer Detention and Handling of Persons in Police Custody which requires an adequate supply of replacement clothing to be available with detainees at high risk of suicide by using their own clothing to be under observation constantly or within close proximity (para. 6.6.3). Constant observation is described as ensuring positive engagement at frequent and irregular intervals with close proximity requiring physical supervision for those at the highest risk of self-harm (para 7.6.1). Records must be kept in the custody record as to the level of observation, the reasons and those with relevant responsibilities. Finally para. 7.8.1 makes it clear:
"The removal of clothing from a detainee believed to be at risk of self-harm or suicide may increase the risk and so constant observation or observation within close proximity may be more appropriate in such circumstances."
- Ms Williams argues that each of these provisions was breached and, although recognising that none generate civil liability submits that all go to demonstrating a breach of Article 3 of the ECHR. As to the extent of the breaches, the officers were cross examined about the Code and the guidance; the judge made a number of findings about them. In particular, it is conceded that an appropriate adult should have been called by the custody officer; although at 6.42 pm medical advice was then to the effect that an appropriate adult was not necessary, the trigger for Sgt. Wilson's suspicion is beyond argument.
- For my part, as did the judge, I readily accept that there were also breaches in relation to the search (on the grounds that a third officer was present to bag the clothing and it could, in fact, be seen over the CCTV). More difficult is the criticism of the removal of all clothing and the failure to provide replacements. The concern was that Mr Yousif would use his clothing to harm himself and it is clear that s. 54(1)-(4) of 1984 Act provides the power for the custody officer to act as she did: see also PD v Chief Constable of Merseyside Police  EWCA Civ 114 at ). In those circumstances, therefore, once the decision had been made, in good faith on appropriate grounds in the lights of the facts set out at - above and - below, the judge was entitled to find that there was no alternative to removing his clothing and it was necessary to do so. Neither could alternative covering be provided on the basis that this could also potentially be used for self-harm as Mr Yousif later demonstrated in relation to the blanket with which he was provided.
- On any showing, Mr Yousif was given many opportunities to address the concern of the custody officer as to his risk of self-harm and about 80 minutes after the clothing had been removed, he was offered clothes if he stopped self-harming but his response was to threaten to kill the officer. Clearly, the breaches of the Code and guidance form part of the factual matrix within which Articles 3 and 8 must be considered but could not, on any showing, be decisive.
- Monitoring was clearly undertaken not only by visits (although not at the frequency prescribed by the custody officer) but also through the CCTV. As for the risk being increased, if clothing was removed, this required a judgment by the officers at the scene at the time. It is clear that Mr Yousif was told that if he answered the questions he was asked about the risk of self-harm, someone would sit with him in a cell; attention was paid to the concern underlying the guidance. When he continued to refuse to engage, it is clear that the custody officer considered such an approach inadequate. Although that fact must also play into the overall consideration of breaches of the ECHR, the judge did not criticise the decision and neither would I.
- Before passing to a consideration of the ECHR, I deal shortly with the complaint concerning the judge's conclusions about Mr Yousif's mental health. It is argued that the judge was not justified in drawing conclusions contrary to the medical evidence. The point is made that the experts did not suggest that Mr Yousif had fabricated his illness or symptoms while in police detention although Dr Broadhead leaned to the view that Mr Yousif's personality traits were the explanation for his presentation on 12 June whereas Professor Katona ascribed them to his PTSD related disorder. Even with much background information unavailable to Dr Frazer at the time, Dr Broadhead did not consider Dr Frazer's interpretation of Mr Yousif's behaviour in the circumstances unreasonable. Neither did the judge who had the advantage of assessing Mr Yousif in the round against the background of all the evidence: he was entitled to reach the conclusion that he did.
- Turning to the ECHR, Article 3 must now be considered in the light of the recent decision of the Grand Chamber of the European Court of Human Rights ("ECtHR") in Bouyid v Belgium (App. 23380/09) decided on 28 September 2015 and thus not available to the judge when he gave judgment. Prior to that decision, the general principles were clear. Thus, in Wainwright v United Kingdom (2007) 44 EHRR 40 (page 809) it was articulated (at ) in this way:
"Ill treatment must attain a minimum level of severity if it is to fall within the scope of Art.3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim. In considering whether a treatment is 'degrading' within the meaning of Art. 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Art. 3. Though it may be noted that the absence of such a purpose does not conclusively rule out a finding of a violation. Furthermore, the suffering and humiliation must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment, as in, for example, measures depriving a person of their liberty."
- In the context of this case, it is worth adding that the case concerned the strip search of a mother and child (with cerebral palsy and severely arrested social and intellectual development) visiting a prisoner who were required to submit to an intimate strip search which in the case of the child involved handling of his penis; the result was that both suffered post-traumatic stress disorder. Describing the relationship between such searches and Article 3, the court went on (at ):
"A search carried out in an appropriate manner with due respect for human dignity and for a legitimate purpose may be compatible with Art. 3. However, where the manner in which a search is carried out has debasing elements which significantly aggravate the inevitable humiliation of the procedure, Art.3 has been engaged: for example, where a prisoner was obliged to strip in the presence of a female officer, his sexual organs and food touched with bare hands and where a search was conducted before four guards who derided and verbally abused the prisoner. Similarly where the search has no established connection with the preservation of prison security and prevention of crime or disorder, issues may arise."
- In that case, there was no breach of Article 3 because the treatment did not reach the minimum level of severity although the search was found to fall foul of Article 8 on the basis that it constituted an interference with physical integrity and had to be justified as being in accordance with the law, necessary in a democratic society and for one of the listed legitimate aims. Although in accordance with a legitimate aim (fighting the drugs problem in prisons, thus prevention of crime and disorder) searching those who may well be innocent of wrongdoing required the authorities to comply strictly with safeguards and by rigorous precautions protect the dignity of those being searched from being assailed any further than is necessary: see .
- The test identified in Wainwright (at ) is not novel. (see, for example, Price v United Kingdom (2001) 34 EHRR 1285 at ) and, further, it has been recognised that the position of those that are vulnerable is particularly sensitive. In ZH v Hungary (Appln 28973/11), the ECtHR observed in the context of custodial remand for a man who was deaf and dumb and illiterate with medium grade intellectual disability (at [29)]:
"States have an obligation to take particular measures which provide effective protection of vulnerable persons and include reasonable steps to prevent ill treatment of which the authorities had or ought to have had knowledge (see Z v United Kingdom (2001) 34 EHRR 97). Any interference with the rights of persons belonging to particularly vulnerable groups – such as those with mental disorders – is required to be subject to strict scrutiny, and only very weighty reasons could justify any restriction..."
- The ECtHR went on to focus (at ) on the impact on the applicant, that is to say isolation and helplessness flowing from his disabilities as well as his lack of comprehension of his own situation and that of the prison order, causing anguish and inferiority especially having been separated from his mother who was the only person with whom he could effectively communicate.
- Considering the approach of appellate courts to cases of this nature, in H v Commissioner of the Metropolis  EWCA Civ 69,  1 WLR 3021, Lord Dyson MR put the matter this way (at ):
"I acknowledge that a court should not lightly find a violation of article 3. The ECtHR has repeated many times that a minimum degree of severity of treatment is required. Whether that degree of severity is established on the facts of a particular case involves a question of judgment. The judge was better equipped than this court to be able to evaluate the seriousness of the treatment, taking all the circumstances of the case into account. In my view, we should only interfere if we consider that it is plain that the judge made the wrong assessment."
- Against that background, I turn to Bouyid v Belgium. Two brothers (one of whom was 17 years of age) lived with their parents next to a police station. Both complained of harassment by the police and a long standing history of tense relations with seven separate incidents between the police and these applicants including verbal and physical abuse (including when the younger brother was 13). Neither had been convicted of crime and these incidents had led to complaints about police conduct. The two incidents that were the subject of these proceedings involved separate occasions, when each had been deliberately slapped in the face while detained in the police station; some (comparatively minor) injury had resulted.
- In the circumstances of the case, by a majority (14:3), the Grand Chamber of the ECtHR reversed the decision of the Chamber and concluded that there had been a violation of Article 3. Having repeated (at ) the broad thrust of Wainwright and citing other similar decisions, the majority went on:
"87. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 ... It should also be pointed out that it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others ...
88. Furthermore, in view of the facts of the case, the Court considers it particularly important to point out that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 ..."
- The facts of the case are important; it concerned the deliberate use of unjustified force in circumstances redolent of deliberate abuse of power. Thus, (at ), the Court regarded as irrelevant that the slap may have been administered thoughtlessly and asserted:
"In a democratic society ill-treatment is never an appropriate response to problems facing the authorities. The police, specifically, must "not inflict, instigate or tolerate any act of torture or inhuman or degrading treatment or punishment under any circumstances" (European Code of Police Ethics, § 36; see paragraph 51 above). Furthermore, Article 3 of the Convention establishes a positive obligation on the State to train its law-enforcement officials in such a manner as to ensure their high level of competence in their professional conduct so that no one is subjected to torture or treatment that runs counter to that provision."
- Three judges dissented. Commenting on the apparent suggestion that any interference with human dignity resulting from the use of force by the police would necessarily breach Article 3, the dissenting judgment records (at ):
"We consider that in so finding, the majority have departed from the well-established case-law to the effect that where recourse to physical force diminishes human dignity, it will "in principle" constitute a violation of Article 3. The relevant case-law is in fact referred to twice in the judgment (in paragraph 88, with references ... and in paragraph 100). In our view, the use of the term "in principle" implies that there are exceptions, that is to say instances of interference with human dignity that nevertheless do not breach Article 3. On this point we would refer to the Ireland v. the United Kingdom judgment, in which the Court found that there could be "violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the Contracting States but which does not fall within Article 3 of the Convention" (see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25).
This is because there are forms of treatment which, while interfering with human dignity, do not attain the minimum level of severity required to fall within the scope of Article 3 (see, for example, Ireland v. the United Kingdom, cited above, § 162, and, [other] recent judgments ..."
- It continues (at ):
"We fear that the judgment may impose an unrealistic standard by rendering meaningless the requirement of a minimum level of severity for acts of violence by law-enforcement officers. Police officers may well be required to exercise self-control in all circumstances, regardless of the behaviour of the person they are dealing with (see paragraph 108 of the judgment), but this will not prevent incidents in which people behave provocatively towards them – as in the present case – and cause them to lose their temper. It will then be for the appropriate domestic courts, where necessary, to determine whether the officers' behaviour may have been excusable. To conclude, as the majority have, that in any such incident the State will be responsible for a violation of the victims' fundamental rights, in particular because of a failure to train officials "in such a manner as to ensure their high level of competence" (see paragraph 108 of the judgment), is in our view a clear underestimation of the various difficulties that may be encountered in real-life situations.
This observation cannot be countered by stating that the prohibition of torture and inhuman or degrading treatment or punishment is absolute, regardless of the conduct of the person concerned (see paragraph 108 of the judgment). We too subscribe to the absolute nature of this prohibition. However, it only applies once it has been established that a particular instance of treatment has attained the requisite level of severity."
- The heading to Article 3 is "Prohibition of torture" and provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". Speaking for myself and with respect to the majority, I see very great force in the concern expressed in the dissenting judgment. To reduce the level of severity required to establish a breach of this provision runs the risk that a lower threshold will lead to arguments about appropriate qualifications to the scope of what are absolute prohibitions. In that regard, the phrase "diminishing human dignity" does little to provide a red line which is easily identifiable. Still more difficult is sufficiency that the victim "is humiliated in his own eyes" which is necessarily entirely subjective: this further potentially lowers the threshold. There is also the risk of unintended consequences if, for example, there is evidence that prison conditions in many countries (not least, perhaps, in the UK) go some way to diminish human dignity so that Article 3, as so defined, prohibits what would otherwise be entirely appropriate extradition to countries themselves bound by the ECHR.
- In any event, the language of the judgments suggest that the disagreement between the majority and the minority may be explicable only as a different view as to the application of the law to the facts of the case. A deliberate objective by law enforcement officers to humiliate or debase is clearly unjustifiable and may lead to an adverse conclusion in relation to breach of Article 3. In that regard, the ECtHR was, in fact, considering the culmination of a campaign; in those circumstances, deliberate police misbehaviour continuing that campaign, not even remotely justifiable as necessary but rather to humiliate and debase which otherwise may not have reached the threshold of severity had, in the view of the majority, done so.
- It is clear that both the majority and the minority recognised that even where physical force is used there will be no breach of Article 3 if such force is "strictly necessary". As the majority stated at :
"Any interference with human dignity strikes at the very essence of the Convention. For that reason any conduct by law enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. That applies in particular to their use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question."
The same point is made at , ,  of the majority judgment and in the minority judgment at , and, expressed as "needlessly", at . This is also consistent with what was said in Wainwright at .
- In the light of Bouyid, Ms Williams points to the fact that Mr Yousif was initially recorded on the custody record as being co-operative and that he participated (at least in part) in the risk assessment. She identifies the contradiction that he had indicated self-harm but was not marked as vulnerable or in need of an appropriate adult whereas it is now accepted that a proper reading of the Code of Practice and the guidance should have led to an appropriate adult being obtained who might have been able to explain the issues better to Mr Yousif and persuade him to co-operate.
- In particular, the judge is criticised for failing to grapple with the breaches of the Code. Further, it is argued that he failed to appreciate that there was not sufficient urgency to proceed in the absence of an appropriate adult who, even if not available immediately, might have mediated and calmed Mr Yousif down sufficiently to allow his clothes to be returned. Thus, the humiliation and loss of dignity that flowed following his clothes being removed could have been obviated (or at least lessened) with the result that he was humiliated in his own eyes and a breach of Article 3 established flowing directly from the breach of the Code and guidance. That argument is even stronger in relation to the decision to move cells where Ms Williams submits that the judge does not adequately deal with the fact that the pleaded basis for the cell move was not proved.
- Approaching the facts of this case (and the unchallenged assessment of the judge recorded at ,  above and - below), it is necessary to deal incrementally with the decisions which were taken. The first – and most critical – decision was that to remove Mr Yousif's clothes in the first place. True it is that Mr Yousif was initially described as co-operative when dealing with the custody officer but there is no doubt that, having identified that he had attempted suicide or self-harmed, very real concern flowed from his repeated refusal (notwithstanding something like 12 attempts to ask him to do so) to elaborate. Even when the custody officer explained why she was making the enquiry, he refused to engage.
- It is common ground and of very great importance to any assessment of the position that the concern of the custody officer was legitimate and entirely related to the safety of Mr Yousif. She had no way of knowing what, if anything, he had hidden about his person and could not run the risk of his injuring himself. If the assessment had been made (as it should have been) that an appropriate adult be called, at the very least, it would have been critical for Mr Yousif to be subject to individual continued supervision simply because he had refused to co-operate. Contemplating the judge's findings with regard to the urgency of the situation (see  above) and what criticism the police would have faced if Mr Yousif had taken the opportunity to commit suicide, it is not surprising that the judge concluded that the approach taken by the police was necessary (see -, , above).
- In the circumstances, the judge found on fully sufficient evidence that a strip search (inevitably humiliating) was an entirely appropriate response to the circumstances on the grounds that it was necessary (or reasonably believed to be necessary) in the interests of Mr Yousif's safety. The judge found that the decision was justified, correct and "unimpeachable". Quite apart from the fact that neither the breaches of the Code and the guidance nor the arguments advanced by Ms Williams invalidate that conclusion,it was the judge who was in the best position to assess and evaluate the seriousness of the treatment along with the allegation of breach of Article 3. Following the observations in H v Commissioner of the Metropolis at  above, it cannot be said that he was wrong. On the contrary, in my judgment, he was correct.
- I turn to what happened thereafter. Having regard to the judge's conclusions (which, on the evidence, were entirely open to him) as to the reasons for Mr Yousif's behaviour thereafter, it is difficult to see what else the police could do. He damaged the bedding in his cell and, when he was offered clothing if he behaved, he threatened the officer. Watching the video, it is clear that he was being disruptive and, as found by the judge, deliberately so ("making life as difficult as possible for the police"); I repeat the judge's conclusion that he embarked "on a deliberate programme or campaign designed to set himself up as a victimised and helpless, frail and vulnerable individual". Furthermore, the opinions expressed by Dr Frazer confirmed that assessment and, indeed, did not conclude that he was vulnerable.
- Similarly, in relation to the cell movement and the failure to provide covering while that exercise was undertaken, as the judge accepted, the record explains that he was moved because his disruptive behaviour was interfering with the work of the custody office and the retrospective considerations advanced in evidence in relation to the failure to provide a blanket were clearly accepted by the judge. Once again, safe movement and the avoidance of risk constituted the motive. Further, the conclusion reached by the police was demonstrated to have been justified by what happened thereafter: 23 minutes later, Mr Yousif had calmed down and, as a result, was given a blanket and then, 18 minutes later, clothing (although the blanket later had to be removed because he was fashioning a noose). Bearing in mind the breaches of the relevant guidance, in my judgment, the judge was not only entitled to conclude that there was no breach of Article 3 but, again, was right to do so.
- It is worth adding that although there was some difference of opinion between Professor Katona and Dr Broadhead about the relative contributions of Mr Yousif's personality disorder and the post-traumatic stress disorder from which he suffered, both were agreed that the incident (which had provoked distress, anger and challenging behaviour) affected neither. Thus, beyond the humiliation which it was recognised by all that Mr Yousif will have suffered, there were no other consequences. Agreeing with the judge, however, that humiliation was the consequence of his own refusal to engage in what was an entirely appropriate (and essential) risk assessment.
- In my judgment, contrary to the submissions of Ms Williams, this case is far removed from the factual basis and rationale of the decision in Bouyid. As stated, at the heart of Bouyid is use of unjustified and unnecessary force in circumstances redolent of deliberate abuse of power: each slap was an "impulsive act in response to an attitude perceived as disrespectful" (at ). By contrast, all that happened to Mr Yousif was a consequence of what was clearly his own failure to engage and flowed from what it was agreed were the legitimate and good faith concerns of the police to ensure that he was safe while in custody. Breaches of the Code and guidance were not deliberate. Having regard to the findings of the judge (which were justified on the evidence), all the actions taken by the police in relation to Mr Yousif were 'strictly necessary'; they do not give rise to any actionable wrong and do not, in this case, establish any breach of Article 3.
- Moving shortly to Article 8, this is not a case (unlike Wainwright) in which an in-depth analysis based on the right to private life or, indeed, a different answer resultant upon that analysis is appropriate. This provision has a specific exception for the protection of health: in my judgment, on the facts of this case and the justified findings of the judge, there can be no doubt that the police can justify what was undeniably an invasion of Mr Yousif's privacy by reference to the necessity in a democratic society for the police as custodians of a person lawfully arrested on suspicion of having committed an offence to take all necessary steps to protect his or her safety.
- Similarly, the allegation of assault fails on the facts. In the light of what had, in fact, happened over the preceding hours, the judge was entitled to find that the police had "no possible alternative but to deal with [Mr Yousif] in what can be seen to be a markedly restrained way" and that he would have used the requirement to move cells as an opportunity to "kick off". The judge went on to conclude that only the absolute minimum of force required to achieve the move was used and that, given Mr Yousif's behaviour up to that point, it was necessary. These were also conclusions which the judge was entitled to reach and are borne out by his other findings and the evidence which he accepted. In that regard, it is also relevant to repeat the judge's findings that, from his previous experience in custody, Mr Yousif knew exactly what the processes were and, without anticipating every step, "knew enough to have a clear, general idea as to what was going to happen".
- In the circumstances, I would dismiss this appeal in its entirety.
Lord Justice Hamblen :
- I agree.
Lord Dyson M.R. :
- I also agree.
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