The Strip Search That Should Never Have Happened
Was the Met Police’s treatment of Child Q unlawful and will they be held accountable?
“Someone walked into the school, where I was supposed to feel safe, took me away from the people who were supposed to protect me and stripped me naked, while on my period.”
These are the haunting words of Child Q, a 15 year old black female who in 2020 was strip-searched in her school medical room by officers from the Metropolitan Police Service, whilst she was menstruating, after her teachers thought they had smelled cannabis on her.
Her case has received national attention after a safeguarding review published on 14 March 2022 concluded that the strip search “should never have happened”, and made a finding that racism was likely to have been an influencing factor in the decision to carry it out.
The search has had devastating consequences for Child Q. Her family told the safeguarding review that she is now a “shell of the bubbly child she used to be”. She is self-harming, screams in her sleep and requires therapy.
The case has prompted public protests in Hackney and condemnation from numerous politicians including Equalities Minister Kemi Badenoch and London Mayor Sadiq Khan. More than 40 MPs have signed a letter to the Home Secretary asking her to outline how police and teachers will be held to account over the incident, and it was recently reported that the teacher who phoned the police has been sacked.
The Met Police have issued an apology to Child Q and called the officers’ actions “regrettable”. But many people are understandably asking whether the search was much more than “regrettable”. Was it unlawful? Should the officers involved also be dismissed?
The attendance of the police
First, questions have rightly been asked regarding why the police were at the school at all. Child Q’s teachers told the safeguarding review that on the day in question, they believed Child Q was smelling strongly of cannabis. They said that Child Q had also smelled of cannabis on a previous occasion, and that one of her friends had been expelled for possessing drugs.
Upon questioning, Child Q denied using or having any drugs in her possession. Her teachers searched her bag, blazer, scarf, and shoes and found nothing of significance. They then sought advice from the Safer Schools Police Officer (SSPO), who said that the school should call the police and ask for a female officer to attend. Four officers, two of whom were female, arrived at the school.
The safeguarding review found that in searching Child Q’s possessions, the school was fully compliant with expected standards when responding to concerns about the smell of cannabis, but it raised serious questions as to whether the SSPO’s advice to call the police was appropriate.
However, once the police were on site, they had a wide range of options available to them in terms of actions to take. This included assessing whether they had lawful grounds for searching Child Q, and if so, what level of search would be proportionate.
Power to search
The police have certain powers to search people who are under arrest. However, the safeguarding review does not suggest that Child Q was arrested at any point.
It appears that Child Q was searched under the ‘stop and search’ powers in either s.1 Police and Criminal Evidence Act 1984 (PACE) or s.23 Misuse of Drugs Act 1971.
Under either of these powers, the police can search people for controlled drugs if they have “reasonable suspicion” that a person is carrying them.
There are two elements to the ‘reasonable suspicion’ test. First, the officer must have formed a genuine suspicion in their own mind (the ‘subjective element’). Secondly, the suspicion that the drug will be found must be reasonable, ie a reasonable person would likely make the same conclusion based on the same facts or information (the ‘objective element’).
We cannot know what the officers who attended Child Q’s school thought in their own minds without reading their accounts. It is similarly difficult for us to draw firm conclusions on whether their belief was objectively reasonable, since we do not know exactly what information they were given by Child Q’s teachers. However, it is worth noting that the College of Policing’s Authorised Professional Practice on Stop and Search suggests that “it is not good practice for an officer to base his or her grounds for search on a single factor, such as the smell of cannabis alone”. Similarly, an Action Plan on police accountability published by City Hall in November 2020 set out action points “to ensure officers are not relying on the smell of cannabis alone when deciding to stop and search, and use grounds based on multiple objective factors”.
On the evidence available, there are at least serious questions to be asked regarding whether officers had a reasonable suspicion that Child Q was carrying cannabis.
Yet even if the officers were able to persuade a court that they did have reasonable suspicion, this alone would not be enough to justify their strip search of Child Q. They would still need to establish that the type of search and the way it was carried out (the conduct of the search) were lawful.
Types of search
Most searches carried out under stop and search powers are restricted to a superficial examination of outer garments, more commonly known as a ‘pat down’. You can be asked to remove a coat or gloves, but nothing more.
Any search requiring the removal of more than outer clothing is deemed to be a strip search. There are three main types:
- A more thorough search – this involves the removal of more clothes than a jacket, outer coat or gloves, but does not involve exposure of intimate parts of the body.
- A search exposing intimate parts of the body (EIP search) – intimate parts of the body can be visually examined but not touched.
- Intimate search – this is the most intrusive search of all; all body orifices can be physically examined. These can only be carried out if the person is under arrest.
Child Q was given an EIP search. The next question to ask is: was the decision to give her this type of search justifiable?
The decision to carry out an EIP search
Decisions to undertake EIP searches are subject to various rules. These include that:
- They must not be conducted as a routine extension of a less thorough search, simply because nothing is found in the course of the initial search;
- The officer must provide a reason for needing to search further (and the reason cannot be that nothing has been found yet);
- Officers must consult a supervisor prior to carrying out an EIP search, to explore the reasons why it is necessary and proportionate in the circumstances.
In addition, in their use of all stop and search powers, officers should have regard to their duties under the Equality Act 2010 not to unlawfully discriminate against others, and under s.11 of the Children Act 2004 to the need to safeguard and promote the welfare of all persons under the age of 18.
It is not clear from the evidence publicly available if the police provided any reason for needing to search Child Q beyond a superficial examination of her outer garments. The safeguarding review also noted that there is no evidence the officers consulted with a supervisor prior to the search, and that concerns about what possessing the alleged substance might mean for Child Q’s safety and welfare were not considered. It is therefore likely that the decision to search Child Q was made in breach of both PACE and the Children Act.
In addition, as the safeguarding review concluded that racism was likely to have been an influencing factor in the decision to undertake a strip search, there is a strong argument that the decision to strip-search Child Q amounted to direct discrimination and a breach of the officers’ public sector equality duty under the Equality Act 2010.
Conduct of the EIP search
The way the search was carried out was also deeply flawed. EIP searches must be performed:
- By an officer of the same sex;
- With a minimum of two persons present in addition to the person being searched, unless there is a risk of serious harm to the person or to someone else. One of those must be an Appropriate Adult if the person is a child, unless the child and Appropriate Adult both agree that the adult should not be present during the search.
- With officers recording the encounter on a body-worn video camera, if one is available, but they should cover the camera (or direct it away from the person) whenever intimate body parts are exposed. Audio recording should remain activated.
- With proper regard to the dignity, sensitivity and vulnerability of the detainee, including in particular, their health, hygiene and welfare needs.
- With every reasonable effort made to secure the detainee’s co-operation, maintain their dignity and minimise embarrassment.
Although Child Q was searched by two female officers, there was no Appropriate Adult present, and the safeguarding review highlighted significant deficiencies in the clarity of any agreement obtained by the police from Child Q and her teachers that no teacher would be in the room during the search.
In addition, the Met have informed the safeguarding review that there is no Body Worn Video footage of the incident. It is also clear from the accounts of Child Q and her family that inadequate regard was given to the fact Child Q was menstruating and her related hygiene needs, and the added embarrassment this would cause.
An unlawful search?
On the facts available, it is difficult to conclude anything other than the strip search of Child Q was unlawful. If the search is deemed to be unlawful, then legally it amounts to an assault. It may well also amount to a breach of Child Q’s human rights under Articles 3, 5, 8 and 14 of the Human Rights Act; these regulate the right to freedom from inhuman and degrading treatment, freedom from unlawful detention, the right to privacy and freedom from discrimination.
Although it is relatively simple to conclude that the strip search was unlawful, the question of what accountability there will be for the Met Police is much less straightforward.
The Independent Office for Police Conduct (IOPC) say they have an “ongoing” investigation into the matter. This is likely to have arisen as a result of a police complaint about the conduct of the officers involved. It is sadly typical of the pace of police complaint procedures that the IOPC’s investigation has not yet concluded, despite the fact that the incident occurred in 2020 and the profound impact it has had on a child. Even more concerning is that the IOPC did not assess the incident to be at the highest level of severity; last week Sadiq Khan wrote to the IOPC requesting that they upgrade their investigation from one of misconduct to gross misconduct, given that allegations of discrimination would normally be considered at this level.
But appropriate consequences for the specific officers involved are only one part of the response required. The widespread public response has been partly prompted by the perception that the incident reflects deeper cultural issues within the Met Police regarding race, misogyny and a lack of accountability. A recent Freedom of Information request by Criminology Researcher Dr Tom Kemp showed that 33.5% of strip-searches carried out by the Met Police in the last five years were on black people (while black people only make up around 11% of London’s population). In 2019, the HM Inspectorate of Constabulary, Fire and Rescue Services (HMICFRS) highlighted the Met’s excessive number of “unwarranted” strip-searches. And just weeks ago, the Met were forced to apologise to Dr Koshka Duff after carrying out a degrading and misogynistic strip-search in 2013 which left her with PTSD.
Child Q’s school also no doubt have serious questions to answer about how the teachers could have safeguarded her better. However, their deference to the decisions of the police officers – criticised in the safeguarding review – is perhaps indicative of behaviour that much of the general public can relate to. Ultimately, searching people is not an everyday part of the job of an ordinary school teacher: but it is for a police officer. Just as Sarah Everard followed her captor unquestioningly into his car because he was a police officer, most of us expect to be able to trust that the police know the rules governing their own powers and will implement them fairly. On this occasion, and on too many others, the police utterly failed to do that. It remains to be seen what action will be taken to address the culture that facilitates these failings and restore some much-needed confidence in our police service.
Our Civil Liberties & Human Rights Solicitors have been using the power of the law to fight for what’s right for over four decades. We have an exceptional track record of holding authorities to account. To speak to one of our legal experts, please call 0808 271 9413 today or request a call online.