The search practices of the New South Wales Police Service have come under scrutiny following a recent report by the Law Enforcement Conduct Commission (LECC). The report, which highlights the importance of consistent and comprehensive standard operation procedures, found evidence that police had conducted a number of unlawful and morally reprehensible strip-searches. Given the serious criticisms levelled at the NSW practice and procedure for strip searching, we wanted to review the Queensland Police Service powers.
Queensland’s police search powers
In Queensland the police have broad powers to search a person and anything in a person’s possession without a warrant under s29 of the Police Powers and Responsibilities Act 2000 (‘PPRA’).
However, the search powers may only be used when a police officer reasonably suspects that one of the prescribed circumstances applies to the person. The prescribed circumstances include possession of a weapon or item used in the administration of drugs. There are a number of prescribed circumstances in the PPRA in section 30.
Pat down
The use of pat down searches by police on the street and in particular of children and young people is prevalent. While there is no reference to a ‘pat-down’ power in the PPRA, the search of persons without warrant is covered. The process for that search is known as a ‘pat-down’ search. The process to be adopted comes from the Queensland Police Service Operational Procedure Manual which describes this type of search of persons as involving a search of a person’s outer clothing, a search that requires grabbing, squeezing and/or a pat technique over the outer clothing of a person except a person’s genitals, or use of a metal detector.
A common form of a pat-down is removal and inspection of an outer garment worn by a person or other items in their immediate possession. An outer garment is any item of clothing that does not reveal underwear or expose skin generally covered by underwear when removed. Common examples of outer garments include jackets, shoes, socks and hats. ‘Other items’ is a deliberately broad term. Common examples of other items include handbags, backpacks or other containers. It is important that if you are stopped by police, you are aware of the limits of what police officers can search and on what basis they can search you.
Strip-Search
Police may require a person to remove items of clothing for the purposes of conducting a search, commonly known as a ‘strip-search’, according to s629 of the PPRA:
A police officer conducting a lawful search of a person under this Act may require a person to remove all items of clothing or all items of outer clothing from the upper or lower part of the body
The significant personal intrusion associated with strip-searches and the public importance of privacy are reflected in the operational procedures and legislated protections. According to the OPM:
A police officer’s or watchhouse officer’s general duty of care toward a person is not in itself sufficient justification to conduct an unclothed search. An unclothed search should only be conducted when a responsible officer reasonably suspects the person poses a particular risk and an unclothed search is necessary to mitigate the risk.
The discretionary decision to strip search someone should be based on factors such as the risk a person possesses something that is capable of causing damage to themselves or others, able to aid escape if detained or evidence of the commission of an offence. Other factors that should be considered at the very least include whether the risk can be mitigated by some other means, the circumstances in which a person has been or will been held in custody, the demeanor of the person and any known personal history.
Prior to conducting any search the police officer should, as reasonably practicable, inform the person that they will be required to remove clothing, explain why it is necessary to remove the clothing, and request general cooperation.
A police officer must adopt procedures to protect the dignity of a person during a strip-search. A requirement of dignity is reasonable privacy. This means that a search should be conducted by an officer of the same sex as the person where reasonably practical, without anyone else who does not need to be present. If there is CCTV in the area where the search is performed, an officer must ensure the camera is turned off. If this is not possible the search must be moved out of view of the camera. Exceptions to this is if the footage is monitored only by a police officer of the same sex or if turning off the camera would pose a significant risk to another. In either event the video must be handled appropriately pursuant to s 632 PPRA.
A strip-search must be conducted as quickly as reasonably practicable. During the search there must, if possible, be an opportunity to remain partly clothed to minimise personal exposure. For example, a person should be given the opportunity to dress their upper body prior to removing their clothing covering the lower body. A person should be able to dress themselves as soon as the search has been completed. If any item of clothing is seized during the search, alternative reasonably appropriate clothing must be arranged.
An officer must not, under any circumstances, make contact with the genitals or anal areas of a person. It is permitted for the officer to give specific directions that allow for visual examination. Common directions include asking the person being searched to stand with legs apart and bend over or raise their hands.
Children, or those with impaired capacity, must have a support person present during a strip-search. A search may nonetheless be performed if the police officer reasonably suspects further delay is likely to result in evidence being concealed or destroyed, or to protect the safety of the person.
What is the NSW Commission recommending
The Law Enforcement Conduct Commission (LECC) expressed concern with what it opined were inadequate standard operating procedures. Amongst other issues, the procedures were inconsistent, cited outdated legislation and failed to provide any significant guidance to deal with increasingly common situations. The recommendations of the commission included:
- The custody standard operating practice should provide guidance to police about how to form a suspicion on reasonable grounds that a strip search is necessary for the purposes of the search.
- The custody standard operating practices should clarify the role of the custody manager in deciding whether a general or strip search is necessary in the circumstances.
- The custody Standard operating practice should include consistent guidance to police officers about:
- whether it is appropriate for strip searches to be filmed by CCTV or other recording equipment;
- whether practices such as requiring a person to squat and cough, bend over, lift their genitalia or remove all clothing at once are appropriate;
- when it is appropriate to use force in the conduct of a strip search;
- the requirements for police to record the reasons for the search;
The Commissioner of Police has confirmed that the NSW police force supported all of the recommendations of the commission. The NSW Police Force implemented two new policy documents dealing with personal searches – Charge Room and Custody Management Standard Operating Procedures and a Person Search Manual.
Although the Operational Procedure Manual for Queensland Police has been updated in recent versions to provide greater guidance about factors to be considered prior to and during search procedures, the Queensland Police Service have not published similar specific and detailed policy documents or manuals for search procedures.
What to take away
People who are being searched, either by a pat down or strip search, by Queensland Police Service officers often feel vulnerable. It is important for you to understand the extent of the police powers to search and the circumstances in which you may be subjected to a strip search.
Written by Emma Higgins