Strip search policy 111/2024
FOI Reference: 111/2024
Request:
Context:
The College of Policing changed the APP relating to: ‘Detention and Custody - Control, restraint and searches’, with the addition of the section ‘ the documenting of strip searches in police custody.’
This change to the APP was made on 05.07.2023. https://www.college.police.uk/app/detention-and-custody/changes
It details the legal position and requirements re police custody strip searches / welfare clothes removal / PACE Code C Annex A - citing a legal ruling from 2015, Davis v Merseyside Police (which is sometimes referred to as PD v Merseyside Police).
- Please can you tell me:
Whether your force procedure or policy on custody/strip search/documentation was updated to reflect this change to the APP?
(ie - a change or updated version around or shortly after 5th July 2023 which relates to the APP new section on documenting strip searchies in custody and / or PACE Code C Annex A and / or removal of clothes for welfare reasons/prevention of self-harm and / or Davies/PD v Merseyside Police).
Please can you provide me with:
- A copy of the force’s procedure / policy that was in place before the change was made (this would likely be the procedure / policy document that was in use in June 2023)
- A copy / copies of any new / updated versions of this procedure / policy document that have been issued by your force since the change to the APP (in early July 2023).
- If the change to the APP on this matter was communicated to custody officers / staff in any other way (perhaps an internal email or in an internal newsletter) I’d be grateful if you could also give me details of what was communicated and when.
- If your procedure / policy on this issue had already been changed in 2015 as a result of the Davies v Merseyside Police ruling (or as a result of guidance on the ruling issued by HMIC in 2015) then please tell me about these changes (ie what was changed and when).
Response 1:
I can confirm that Dyfed-Powys Police does hold the information requested, as outlined below.
I can confirm that the Force has a new Policy that has been updated to reflect the change to the APP. Please note that this Policy is currently under review.
Response 2:
I can confirm that Dyfed-Powys Police does hold the information requested (policy attached separately); however, we are exempting part of the information as we believe that the following exemption is relevant:
Section 40(2) Personal Information
Section 40(2) is a class-based absolute exemption. This means that the legislators when writing the legislation considered that the release of such information under the Freedom of Information Act 2000 would cause harm to the public authority or individual concerned. There is therefore no requirement to carry out a HARM Test in respect of such information. There is also no requirement to carry out a Public Interest Test.
Section 40(2) Personal Information:
Section 40(2) applies to third party personal data and is exempt from disclosure under the Freedom of Information Act 2000 if disclosure, in relation to data subject to law enforcement processing, would breach any of the data protection principles contained within Part 3 - Chapter 2 of the Data Protection Act 2018. Under Section 34 within Chapter 2 “The Controller in relation to personal data is responsible for and must be able to demonstrate, compliance with” Chapter 2. Such information would not be released under the Freedom of Information Act 2000 unless there is a strong public interest. One of the main differences between the Freedom of Information Act 2000 and the Data Protection Act 2018 is that any information released under FOI is released into the public domain, not just the individual requesting the information and disclosure under the Act must be made with that in mind. As such, any release that identifies an individual through releasing their personal data, even third party personal data is exempt.
Personal data is defined under Section 3 of the Data Protection Act 2018 as:
“(2) ‘Personal data’ means any information relating to an identified or identifiable living individual (subject to subsection (14)(c)).
(3) ‘Identifiable living individual’ means a living individual who can be identified, directly or indirectly, in particular by reference to—
(a) An identifier such as a name, an identification number, location data or an online identifier, or
(b) One or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.”
All members of the public including those employed by the force have an intrinsic right to privacy and these rights are protected by virtue of the Human Rights Act, the Data Protection Act 2018 and the General Data Protection Regulation (GDPR) and a public authority must not interfere with that right. Any release of the information subject to the exemption is likely to compromise those rights.
Data Protection Act 2018
Part 3 – Law Enforcement – Chapter 2 Principles Section 35
The first data protection principle:
“(1) The first data protection principle is that the processing of personal data for any of the law enforcement purposes must be lawful and fair.”
General Data Protection Regulation
Article 5 of the GDPR – ‘Principles relating to processing of personal data’ provides:
“1. ‘Personal data’ shall be
- Processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency);
- Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest…
- The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).”
Dyfed-Powys Police would not want to disclose any information that could potentially identify an individual. In this particular case, to name the individuals would identify them and would be a direct breach of Data Protection legislation. Therefore, as a consequence I am satisfied that Section 40(2) Personal Information exemption is applicable to the release of the information.
The Section 40 exemption is a class-based exemption. This means that the legislators when writing the legislation considered that the release of such information under the Freedom of Information Act 2000 would cause harm to the public authority or individual concerned. There is therefore no requirement to carry out a HARM Test in respect of such information.
The Section 40 exemption is in part qualified and in part absolute, in the present case it would be absolute as to release the information would breach Data Protection legislation and therefore there is no requirement to carry out a public interest test.
Please find attached a redacted copy of the Force’s Policy that was in place before the change was made.
Response 3:
Section 22 exemption applies (see explanation below).
Response 4:
I can confirm that there is no information held by Dyfed-Powys Police in relation to this.
Response 5:
I can confirm that Dyfed-Powys Police does hold the information requested, as outlined below.
The Policy on this issue had not already been changed in 2015, please see the previous Policy, provided under Response 2.
Explanation of the applied exemption:
Section 1 of the Freedom of Information Act 2000 places two duties on public authorities. Unless exemptions apply, the first duty at Section 1(1)(a) is to confirm or deny whether the information specified in a request is held. The second duty at Section 1(1)(b) is to disclose information that has been confirmed as being held.
Where exemptions are relied upon Section 17 of the Freedom of Information Act 2000 requires Dyfed-Powys Police, when refusing to provide such information (because the information is exempt) to provide you the applicant with a notice which:
(a) states that fact,
(b) specifies the exemption in question and
(c) states (if that would not otherwise be apparent) why the exemption applies.
Section 22 – Information Intended for Future Publication
“(1) Information is exempt information if –
- the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not),
- the information was already held with a view to such publication at the time the request for information was made, and
- it is reasonable in all circumstances that the information should be withheld from disclosure until the date referred to in paragraph.”
Section 22 is a qualified class-based exemption and considerations must be given as to whether there is a public interest in providing the information prior to the anticipated publication.
Public Interest Test
Considerations favouring disclosure:
Dyfed-Powys Police is committed to demonstrating an ethos of openness, transparency and accountability and to disclose the information would be seen as providing updated information and demonstrating continuing ongoing awareness. Current information would enhance public knowledge of the subject and that may better inform public debate around this subject.
Considerations favouring non-disclosure:
The requested information is proactively published by Dyfed-Powys Police and to disclose the information under the Freedom of Information Act would pre-empt this disclosure. Publication processes are in place and disclosure outside of those arranged processes will render such processes obsolete. Such processes are in place to ensure the proactive publication of information, which is in line with the ethos of openness and transparency found within the Freedom of Information Act 2000.
Balancing Test
Factors need to be balanced to see if they favour disclosure or non-disclosure of the information. In this case the strongest consideration for disclosure is demonstrating an ethos of openness, transparency and accountability, being weighed against the consideration for non-disclosure which in this case is that the requested information is proactively produced and published. Proactive publication of information assists in meeting the public interest test, disclosure at an earlier date would render such processes obsolete and the Force would continuously have to furnish Freedom of Information requests when there is a process in place which ensures that the Force is open and transparent in regard to such information. Therefore, at this moment in time, the balancing test for disclosure is not made out.
Therefore, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
(This is a response under the Freedom of Information Act 2000 and disclosed on 14/05/2024)