Michael Zander KC examines R (Sex Matters) v National Police Chiefs’ Council, in which the court upheld guidance allowing a transgender detainee, with appropriate agreement, to be strip searched by an officer of a different biological sex. Although section 54(9) of PACE states that a search must be conducted by a constable of the same sex, genuine consent was held capable of permitting a different arrangement at common law.
The officer acts on the detainee’s consent rather than exercising the statutory search power, while officers themselves may refuse such searches without career detriment. Zander highlights the wider question raised by the judgment: whether consent might permit departures from other PACE safeguards.
Significantly, the court left open whether the same reasoning could extend to more intrusive “intimate searches”, where the statutory restrictions are stronger.
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