Sex Matters & WRN - Judicial Review of strip searching policy by Police Chiefs and British Transport Police

[SexRealistic]

Tribunal Tweets are in High Court today - Sex Matters are applying for Judicial Review of policy v Police Chiefs Council and British Transport Police.

You can find them at their usual spot on Twitter and Nitter link below:

https://nitter.net/tribunaltweets/status/2066808095565639984#m

Thank you! Following.

Cracking open the Irn Bru and Diet Coke for this one. Really hoping common sense prevails.

I am just reading through this.

The absolute knots the barrister for the police are tying themselves into is phenomenal. Absolutely bonkers.

PACE says it’s single sex search - but if everyone common law agrees that anyone says they are X gender and Y police officer accepts to pat down her penis or his vagina then we’re all ok.

Except how can a police officer freely consent if their employer is pressuring them, has trans inclusive policies, goes to Court to force women officers to intimate search men - they’ll just be branded a transphobe.

BONKERS

All done to evade the law in service of an ideology.

On a break for lunch if anyone has time to catch up

Yes, I found it confusing but was thinking along the same lines as you and hope that will be brought out.

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tribunaltweets.substack.com/p/sex-matters-vs-national-police-chiefs

Sex Matters (SM) has brought a judicial review of two guidance documents issued by the National Police Chiefs’ Council (‘NPCC’) entitled ‘Interim Guidance – Searching by Transgender officers and employees of the Police and the Searching of Transgender detainees (the ‘NPCC guidance’) and that of the British Transport Police (‘BTP’) entitled Interim – Transgender and Non-Binary Search Guidance (the BTP guidance).

Both documents set out guidance to create a consensual strip-searching regime. Sex Matters submits that such guidance is beyond the powers of the police (ultra vires) because the Police and Criminal Evidence Act 1984 (PACE) mandates a same-sex guarantee for a strip search. This is said to amount to a statutory duty and cannot be breached through the police unilaterally creating a consensual regime in contradiction to it.

https://threadreaderapp.com/thread/2066806410373963986.html

This morning's thread has been used on unroll - but only showing one tweet. Will update when I can see it.

So the policing guidance is an attempt to get around the EHRC/SC position by saying that police officers and detainees can “consent” for trans people to be searched by someone of the opposite sex but same “gender” (as they would see it).

ETA that’s my interpretation- more of a question

It seems to be accepted by all parties that trans identified males can’t search women against their consent and without their knowledge, and vice versa.

Is it me or does the judge sound a bit disinterested? Maybe it's just the way it's being reported.

Yes - PACE sets out strict procedural processes for police activities.

Statutory guidance says intimiate searches of genitals, buttocks and female breasts are single sex.

The Police are saying no one can ask for a GRC that illegal.

However if a rapist, say a big bulky male with a willy the size of a walrus says he has a female gender identity they will go ask their female officers to freely consent to a search of said female identified penis part. And that consent of both sides takes it out of the PACE framework and into common law - trans free for all.

However how that consent from an employee of the police is free consent - no way that is truly freely given.

Relevant section as a example of how fixated they are to have women coerced into searching men's penises and buttocks; -

J - You're saying that when an officer says 'do you consent to this strip search' they are doing so in their capacity as a citizen not as a police officer.
FB - yes
J - that's the basis of your argument
FB - yes. Para that says 'a police officer has the ability to do anything
J - sorry, I'm trying to write a note on this to make sure I understand this
FB - there is no rule that doesn't allow this contracting out of PACE
J - your argument starts with emphasis on individual rights, a constable can do anything a citizen can do, and have extra powers they are searched under PACE. Another option is given by consent.
J - I'm not sure, I need to examine the logic of your construction. You're saying you can contract out of PACE through consent.
FB - yes
J - I still don't understand 3.
J - your position is that there are no public policy reasons for this
FB - there is not a public policy reason, there is a process by which a search will be done by consent but in a different way, it alters the way in which a person is going to be searched but not the fact that is consent properly informed?
J - to consider whether they consented or not. But where is this derived from. I don 't understand
FB - is public policy prepared to allow for such searches, my position is that where consent is freely given, is there a public policy reason
FB - there must be some public policy allows for consent in that circumstances,
J - you might develop that later but I'm not clear how the public policy issue interacts
FB - where they stand a person can generally consent, always where the lawfulness of action is in doubt unlawful request, no public policy reason for it to exists
J - there is a need for clarity, now I've got your first 2 points, but on the 3rd? An officer goes up to a citizen, no grounds to stop and search but the person agrees to a search, what is the 3rd layer?

FB - there might be good policy grounds to say that one cannot consent to something if there is no lawful power to otherwise do that act. For example there has to be reasonable grounds to stop and search. If the person says 'yes you can' on the face it's consent, but it's an [??] if consent is freely offered.

J - you're argument is that some of this is voluntary, how does that help
FB - what it does, because there are controls, there are circumstances where individuals can contract out of PACE.
J - can you give me examples
FB - what we say is that consent as a principle survives PACE. Whether it can be used is fact dependent.

I think they can't understand why the police crew are making their female officers citizens to effect an intimate search on people of the opposite sex to contract out of the overriding framework for police behaviour.

BONKERS!

I also wonder - if I say I am male gendered and want a man to search my vagina for drugs say. And he consents.

Then I am on trial and I say - I was on drugs, a man searched me, I am a biological woman and PACE was not followed. Therefore search is illegal.

How do they contest that? What consent is recorded???

Exactly, @SexRealistic lots of questions around this “consent”!

This is absolutely nuts!! How can they think this argument will win anyone over?

One thing is really confusing me. I was under the impression that there was no such thing as common law because every time a private citizen makes reference to common law they're told it's not a thing. Is this not correct? FB keeps making reference to common law.

Yes well to go so far as to say Police officers become citizens and then can feel around in the oppositie sex's knickers because they consent is exactly how mad this is.

You want to strip officers of their legal right to search under statute to allow a work around to appease an ideology.

And we are paying for this legal case as police are tax payer funded.

Sickening.

Yes well quite!

Ok I've caught up. Clear as mud on FB's side really. Hopefully the Judge sees that too.

FB - back to Rothman, to address the point on the broad logical conclusion to our arguments. It is that one can contract out of the provisions of PACE, Rothman looked at whether common law search and seizure survived PACE. Initially, held that these did not survive PACE
Lord Hutton says in Rothman it's not whether PACE saves the common law powers but whether it extinguished it. Nowhere does PACE remove those common law powers. We also say it cannot be implied. This court is not dealing with the question of whether this means that PACE

can be opted out of willy nilly but that's not the question before this court. The question is how consent operates and does it remain. I've been reminded that the public policy argument in Brown might be a response re intimate searches where what the police are doing could
be considered sexual assault.

J - it wouldn't be a sexual assault, not done for sexual reasons
FB - many officers would want the protections of consent so they can't be accused of anything.
J - takes away many of the safeguards fall away
FB - but consent is consent and it would be highly unlikely that the police wouldn't be documenting that search. They are doing it for a purpose. It's a theoretical possibility not a real possibility. These are not going arise in real life.

J - so you're saying Parliament wouldn't have a problem with undocumented searches,
FB - they could re-draft the primary legislatiobn
J - you make that sound as if it was straightforward
FB - it would only require an amendment, to address,
FB - finishes.

___
TO for Sex Matters

TO - there would have to be changes to the primary legislation for this policy to be lawful. MLF is not suggesting that Art 3 HRA could overcome the statute. MLF is arguing that because of a consent regime overriding the statute, you can read down and have an opposite sex searches.
J - I'm not sure, no one has developed an argument that involves Art 3.

TO - this is an area where Parliament has legislated how searches operate, if the consent of the detainee operates perfectly lawfully, then a female officer could be ordered to strip search a male prisoner.

J - it requires the consent of both parties, you're going to tell me what's wrong with it

TO - what's wrong it is they are not ordinary citizens they are police officers operating powers of the state, what else could be abandoned by this route:

Documentation of the search, where the search will take place, who will witness the search, how the evidence obtained will be dealt with - all of these could be consented away. You can't approach on the basis that one minute a police officer is exercising the power of the state and the next minute they are acting as a private citizen.

We understand why the NPCC have done their best to seek to sensitive to this group of individuals that were never conceived of in 1984. This idea that the NPCC is advancing that officers can opt out of PACE because of consent.

_

TO - The point of the Phillips commission was calling for codification and clarity on the limitation of police powers. And that resulted in PACE. There are provisions that require consent, it is not a general principle that consent survives and police forces can opt out of PACE.

TO - Annex L was developed by the SoS and put before Parliament. Everyone agrees it is unlawful. Rests on interpretation of what a GRC conveys.
J - one can see that a statutory instrument can create a consent regime.
TO - we know that it is based on false premise because of FWS.

J - Annex L says that a trans person could ask for a same gender search, it contemplated a policy of consent.
TO - it's an unlawful piece of guidance, no one is applying it, it has not been withdrawn, it's another example of the Home Secretary's inaction, sadly.

J - what do you have to say about the argument that police have all the powers of a citizen plus additional powers. What's being said is that they can't use their coercive powers but they can operate as a citizen.
TO - but there is primary legislation that directs how this is done.

J - so you are saying that the power of an ordinary citizen to search by consent has been removed by PACE.
TO - yes, that's what I'm saying.
J - the police constables using consent are acting as private citizens
TO - the consent framework cannot override the statute.

J - I'm going to ask FB to respond. Is the police officer still acting as a police officer.
FB - they are acting as a police officer, using consent powers that are available to an ordinary citizen. We would not say that because a police officer uses a power available to ordinary citizens, they cease acting as a police officer. Rothmann deals with stop and search under a statutory regime and an analogous power was used under the common law. PACE did not expressly extinguish that power.

TO - well she has to say that.

J - yes, of course she does, whether she's right or not, whats your thoughts
TO - its the chaos argument, if a police officer can consent away the protections of PACE.

J - well if thats all.
FB - one more point,
J - if it's a new one

FB - its in regard to the Human Rights Act, a police officer is still acting under the HRA.
J - I'm going to reserve my judgment.

....mad.

As pp says, it's an automatic card to grab by legals: 'you were searched by an opposite sex person - did you consent? Really? Were their motives above reproach? - ooh we'll claim you were coerced/misunderstood/drunk and make that evidence unusable'.

Not to mention as with a man who is very keen to use a loophole to do intimate care or procedures on a woman who has specifically asked for a woman - the motives of someone who shouldn't usually do this but wants to for reasons of their own is safeguarding red flags all by itself.

Also surely there is an element of duress in the whole interaction by its nature.

Reminds me of that movie quote (where's it from?) "When a man with a gun asks you to do something, he's not really asking."