Personal effects in custody and the meaning of 'lawful need'

07 February 2018

Not reviewed after the date of publication

Question:

The below extracts from PACE Code of Practice C cover the taking or retention of property from a detainee in custody.

'4.2 Detainees may retain clothing and personal effects at their own risk unless the custody officer considers they may use them to cause harm to themselves or others, interfere with evidence, damage property, effect an escape or they are needed as evidence. In this event the custody officer may withhold such articles as they consider necessary and must tell the detainee why.

4.3 Personal effects are those items a detainee may lawfully need, use or refer to while in detention but do not include cash and other items of value.'

In relation to the term 'lawful need', what is meant by this? Some detainees will ask to keep on sentimental items of jewellery for example but is there any 'lawful need' to do so? Could you please provide some clarity on your position around this term?

 

Answer:

A custody officer's power to search, seize and retain items that have been found during the search of detained persons is provided in section 54 of PACE. These provisions allow the custody officer to make the decision as to whether or not a personal effect is to be removed or kept on the detainee's person whilst they are held in custody. The custody officer must consider every item of clothing and personal effect with regard to the individuality of each person. They can use their discretion as to what items of clothing or personal effects they are to seize, but they must be guided by section 54(4), Code C, paragraph 4 and their own force policies that are in place when making that decision.

Due to the high risk environment custody operates within, a detainee who on initial presentation appears no risk of self-harm can quickly experience increased levels of anxiety and be at risk of serious self-harm or suicide attempt. Custody officers are justified in seizing items of clothing or personal effects when they consider that that item may be used by that person to cause physical injury to himself or any other item.

Section 54 states:

'54(3) Subject to subsection (4) below, a custody officer may seize and retain any such thing or cause any such thing to be seized and retained.

54(4) Clothes and personal effects may only be seized if the custody officer -

(a) believes that the person from whom they are seized may use them -

(i) to cause physical injury to himself or any other person;
(ii) to damage property;
(iii) to interfere with evidence; or
(iv) to assist him to escape; or

(b) has reasonable grounds for believing that they may be evidence relating to an offence.'

PACE Code C paragraph 4.3 states that personal effects are those items a detainee may lawfully need, use or refer to while in detention but do not include cash and other items of value.

In our opinion, something that a person may lawfully need could include an inhaler, glasses, hearing aids or sanitary products for example. Something they may lawfully use or refer to could include religious items or texts.

As an example, with regard to the decision to remove jewellery from a person, jewellery may be deemed an 'item of value', and as such are not included within paragraph 4.3 and would not be classed as a 'personal effect'. As such they may be removed from the person. Please be aware however that there may be occasions whereby the custody officer will be able to justify the person retaining the item, for example a wedding ring that is not easily removed from a finger or if the jewellery in question has a specific religious significance. However, in a case where someone refuses to remove an item of jewellery, any use of force to remove it must also be justified against the risk of allowing the person to retain it. 

 

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