Proceeds of Crime Act 2002 - Search Powers: code of practice - consultation

Annex 1 - Annex C: Conduct of searches of people - Establishing the sex of a person

Introduction

C.1 Certain provisions of this Code require that searches of people must be conducted by, or in the presence of, constables of the same sex as the person being searched. For the purpose of this Code, ‘sex’ refers to an individual’s biological sex which means sex at birth.

Searching a transgender person

C.2 If the gender identity of a person differs from their biological sex (whether or not they have a gender recognition certificate), and the person expresses a preference to be searched by a constable of the same gender identity as them, the police service, if operationally feasible, should identify an appropriate and consenting constable to conduct the search.

C.3 Searches of people by constables of the opposite sex require written consent from the person being searched, a senior constable of the rank of Inspector or above, and the constable conducting the search.

C.4 Police constables retain the right to decline participation in the search of a transgender person. This decision must be respected and constables will not face any career detriment as a result of such a refusal.

C.5 If no constable of the requested opposite sex is presently available to conduct the search, then the person will be supervised until a constable who consents to carry out the search is identified. If no such officer can be found within a reasonable timeframe, or if the operational risk is deemed too great, the search will be conducted by a constable of the same sex as the person.

Determining sex

C.6 Where there is uncertainty about a person’s sex, constables should engage in a conversation with the individual to establish their sex in a respectful and non-intrusive manner.

C.7 If sex cannot be identified or the person does not engage, constables can refer to official documentation or identity documents that indicate sex, although constables should bear in mind that official documentation is not definitive evidence of a person’s biological sex.

C.8 If uncertainty remains, constables should record the steps taken to establish the person’s sex and, where operationally necessary, proceed on the basis of the officer’s honest and reasonable belief of the person’s biological sex, applying the safeguards and dignity requirements set out in this Code.

C.9 In such cases, constables must document the rationale for their decision in the written record of the search, and a supervisor should review the circumstances at the earliest opportunity.

Documentation

C.10 The sex of the person being searched, as determined for the purpose of the search, must be recorded in the custody record, search record, or constable’s notebook. Where a person expresses a preference that cannot be accommodated due to operational or other constraints, this must also be documented.

Disclosure and privacy

C.11 Information regarding a person’s gender identity or transgender status is confidential and must be treated as such. This information will only be lawfully shared when in accordance with the Human Rights Act 1998, the Gender Recognition Act 2004, the Data Protection Act 2018 and any other relevant data protection legislation.

C.12 Deployment of transgender staff

Chief constables are responsible for ensuring that operational deployment of transgender constables and policing staff complies with the relevant legal framework.