Police have certain very specific powers to help them carry out their duties, most of which are set out in legislation. But how are those powers regulated? What powers do the police have and what rights and responsibilities do you, as a citizen, have in different situations? Who can arrest you and why? How should the arrest be executed? What happens if you resist arrest? Do you have to submit to a search when arrested? The issues raised by these and similar questions are discussed in the Law Enforcement (Powers And Responsibilities) Act 2002, commonly referred to as LEPRA.
It was reported that in the past 12 years the number of strip-searches conducted in NSW increased almost 20-fold, from 277 times in the 12 months to 30 November 2006 to 5,483 in 2018.Australian citizens are now a lot more likely to be strip-searched by police than they used to be, in all sort of places, it is vital to know one’s rights when subjected to a strip-search by members of the police force.
THE STORY
NSW Police Commissioner Mick Fuller expressed his criticism during a NSW parliamentary budget estimates hearing on Thursday after being questioned about a sudden increase in the number of strip searches used by the police across NSW.
Commissioner Fuller was indignant at being subjected to an investigation over the anonymised testimony of a music festivalgoer who complained of a female officer threatening her with a “nice and slow” strip search, if she refused to follow her orders.
The woman in question was called to give evidence about the death of Nathan Tran, who died at the Knockout Circuz at Sydney Olympic Park in December 2017 of an MDMA overdose.
In criticising the actions of the female police officer who had subjected her to the strip-search, the woman complained that she ‘had to take my top off and my bra, and I covered my boobs and she told me to put my hands up, and she told me to tell her where the drugs were’.
WHAT IS A STRIP-SEARCH?
A strip-search takes place when a police officer asks you to remove all or some of your clothes, in order to examine your body. In addition to examining your body, the officer may examine your clothes and any bags etc you have with you.
WHAT CONDITION HAS TO BE MET FOR POLICE TO BE ABLE TO SEARCH YOU?
Section 21 of LEPRA states that for a police officer to be able to search you, without a warrant, they must suspect on reasonable grounds that any of the following circumstances exists:
“That you have in your possession or under your control anything stolen or otherwise unlawfully obtained; that you have in your possession or under your control anything used or intended to be used in or in connection with the commission of a relevant offence; that you have in your possession or under your control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence, or that you have in your possession or under your control, in contravention of the Drug Misuse and Trafficking Act 1985 , a prohibited plant or a prohibited drug”.
WHAT IS ‘REASONABLE SUSPICION’?
The most helpful definition of “reasonable suspicion” appears in Smart AJ’s judgment in R v Rondo [2001] NSWCCA 540, where at para 53 it was said that:
‘(a) reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs […]. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence’.
WHEN AND HOW CAN A POLICE OFFICER SEARCH YOU?
Section 30 of LEPRA states that a police officer may search you by patting down the outside of your body or ask you to take off your outer clothing or shoes.
A strip search is used as a last resort and only when a police officer suspects, on reasonable grounds, that a strip search is necessary. The circumstances, which lead police officers to a decision that a strip search is necessary must be serious and urgent. The power to strip search is deliberately framed with strong language: necessary, serious, and urgent. Section 31 of LEPRA provides that a strip search is permitted if
‘the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary’.
It is clear, from the above discussion, that the police have to meet two very specific conditions, in order to be able to conduct a lawful strip search.
- First, the police have to have a reasonable suspicion that you have something illegal in your possession
- Second, they have to be convinced that the situation is serious and urgent enough to justify a strip-search.
What is ‘serious and urgent’ will, invariably, depend on the situation one finds oneself in. Still, if the police decide to strip-search you, they must be able to explain why they think the situation calls for such a drastic measure.
When deciding to conduct a strip search, police must comply with the legislative requirements of LEPRA, and if they fail to do that, the search may be unlawful.
Failure to satisfy the above two conditions renders the strip-search unlawful.
To read more about police powers of arrest, click here.
To read more about police interviews, click here.