Often it is the case that police need to search those (and detain) suspects when they [the police] believe that the detainee may be committing an offence. It may be the case that police detain and search someone, however no criminal charges have actually been laid. In some cases, it may be the case that a criminal charge has been laid as a result of the detain or arrest, however police did not exercise their duties correctly and you may be successful in arguing to a NSW Court for the dismissal of the allegation.
CHILDREN AS YOUNG AS 11 BEING SEARCHED BY POLICE
The number of strip searches in NSW has doubled in a year, concerning legal rights advocates.
The Law Enforcement Conduct Commission (LECC) has launched an inquiry after it was revealed that strip searches have doubled from 560 in 2016 to 1,100 in 2017.
The NSW government broke the law by subjecting juvenile detainees to lengthy solitary confinement, an independent report has found. NSW Corrections Minister David Elliot called for the review in 2016 following the scandal at the Northern Territory’s Don Dale Youth Detention Centre. At the time, he said
“there is no practice or provision of isolation of young people in custody”.
The process of strip and other personal searching has once again come into media scrutiny with the Aboriginal Legal Service Western NSW deputy principal solicitor Emily Winborne reporting that Aboriginal children as young as 11 are currently being stopped and inappropriately strip searched.
But the report, released last week, by the independent Inspector of Custodial Services, Fiona Rafter, shows “significant failings” in NSW juvenile justice centres.
Of particular concern it was reported that Aboriginal children as young as 11 are inappropriately strip searched, according to a senior lawyer. The Deputy Principal Solicitor of the Aboriginal Legal Services in Western New South Wales says she’s concerned that in some cases the invasive practice is carried out illegally.
This comes as the state’s police watchdog is investigating officers’ potential abuse of powers.
THE IMPACT OF PERSONAL SEARCHES
Let’s be honest – searches of individuals by police are invasive, embarrassing and degrading, but are they necessary? While Police tend to assert that they are and that they have a right to stop anyone over 10 in a public place (if their behaviour permits) and subject them to a search, to some, this does not protect the community but rather endangers all our personal liberties especially when children are being targeted. This is because we all (especially the most vulnerable) should have the right to not be subject of a personal search as there exists a basic privacy concern of invasion when being subjected to a search. When the search is a “strip search” or “against a child” it is suggested it can be even more devastating and traumatic.
THE TWO KINDS OF SEARCHES
Invariably there are two types of personal searches in New South Wales carried out by the police:
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A frisk search: This involves quickly running hands or a metal detector over a person’s clothing; and
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A strip search: This involves the removal of all clothes so that the body can be examined without touching.
THE LAW
Personal and strip searches in New South Wales are regulated under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
So long as that the person is over the age of 10 the Act provides NSW police with the power to stop, search and detain anyone in which the police have reasonable grounds or reasonable suspicion to conduct the search.
Reasonable suspicion is not defined in legislation however it applies whenever:
“A police officer suspects on reasonable grounds that a person is in the possession of anything unlawfully obtained, an item to be used to commit an offence, a dangerous item or prohibited drugs.”
Although it depends on the situation police can form reasonable suspicion due to simply the behaviour of a person or reasons why they came to the attention of the police. A sniffer dog for example may indicate a person and this too can equate to reasonable suspicion.
The Courts when dealing with the issue of reasonable suspicion have the following to say:
- Reasonable Suspicion Involves “less than a reasonable belief, but more than a possibility”,
- That “It depends on the information in the mind of the police officer at the time they formed the suspicion.” And;
- There must be “some factual basis”.
In NSW, personal searches can be conducted before or after an arrest is made. Police are required to show proof that they are police, state their name, station and the reason for the search. They must also state that failing to comply with the search will result in an arrest.
Strip searches are also to be conducted in private and not in the view of anyone of the opposite gender and are only to be conducted when it is reasonable because of the seriousness or urgency of the circumstances.
Police do not have the power to question a person while they are being searched.
SECTION 99 OF THE LEPRA
(a) Reasonable suspicion that the suspect has committed an offence;
(b) Arrest must be for the purpose of commencing proceedings;
(c) Arresting officer must be “satisfied that arrest is reasonably necessary” for one of more of the purposes listed in s99(1)(b);
(d) Arresting officer must provide the information set out in LEPRA Part 15 unless it is not reasonably practicable; and
(e) Any force used must be reasonable
WHAT IS REASONABLE SUSPICION AND GROUNDS?
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A reasonable suspicion involves less than a reasonable belief but more than a possibility;
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Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. It may be based on hearsay or material which may be inadmissible in evidence, but the material must have some probative value; and
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Regard must be had to the information in the mind of the police officer at the time of stopping the person or making the arrest. The question is then whether that information afforded (objectively) reasonable grounds for the suspicion which the officer formed.
CONCLUSION
To strip search such young people as 11 years of age is disgraceful. If it continues it is likely to have long term adverse impacts on those searched and progressively erode not only those young person’s liberties but also all of our civil liberties. The age of police powers to search children in my view should be increased.
If you or anyone you know have been searched or are subject to a criminal charge, National Criminal Lawyers™ are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available.Our office has also been successful in suing the NSW Police for breaches of tort, such as false imprisonment, improper arrest and many more.