What are the two search powers that can be exercised to search an arrested or detained person?
- rubdown search (85-87 S&S act 2012)
- warrantless search under s88
Section 85 Search & Surveillance Act 2012
Rub down search for arrested / detained person
- ensure that person is not carrying anything that may be used to harm any person / facilitate escape.
- search of a clothed person
- run or pat hand over body of person being searched (outside abs inside clothing)
- insert hand inside pockets
- visual inspection
- open mouth
- display palms of hands
- display soles of feet
- lift or rub of hair
S86 Search & Surveillance Act 2012
Things that can be done to facilitate a rundown search
- person being searched remove / raise / lower / open outer clothing.
- remove any head covering / gloves / footwear (including socks)
- rubdown search includes searching
- any item carried / in possession of person
- search of removed clothing / hats etc
S87 Search & Surveillance Act 2012
Rubdown search may include a visual examination
- whether or not facilitated by any instrument used to magnify or illuminate
/ mouth / nose / ears
MUST NOT INCLUDE INSERTION OF ANYTHING INTO THOSE ORIFICES
S88 Search & Surveillance Act 2012
Warrantless search of arrested or detained person
Reasonable grounds to believe that there is anything on / carried by the person
- used to harm any person
- used to facilitate escape
- evidential material relating to arrest
S11 Search & Surveillance Act 2012
Searching people who are, or are about to be locked up in police custody
- search a person who has been taken into lawful custody and is:
- at a police station
- about to be placed in a vehicle
- about to be locked up (pending bail)
- can take money or other property (11(4))
Normally done by AO’s.
When person has come into contact with another who hasn’t been searched etc
Primary purpose is to protect detained persons property and remove items that might be used to harm ppl
What does locked up mean?
Locked up means a person taken into lawful custody and being placed behind a closed or locked door that prevents them from leaving.
E.g cell / charge room / police vehicle (other than for transport)
When can you search people after they have been locked up??
S11 S&S act 2012
After a person has been locked up - can ONLY be searched if:
- not searched before being locked up
- close proximity to a person who is eligible to be searched but has not
- reasonable grounds to believe person is in possession of anything that may be used to harm
Can you search under s11 when prisoners are moved to other stations?
Only if person has been in proximity to unsearched people / reasonable grounds to believe possession of item that can harm (11(3)).
Timing of s11 searches
S85/88 rubdown search after arrest - not s11 immediately after arrest
If you do search under s11 - a further search under 11 cannot be conducted after the person arrives at police station - unless 11(3) applies
When is a search warrant required?
Unless impractical in the circumstances - you must obtain a search warrant before searching a place / vehicle / thing
Where impractical - exercise a warrantless power under S&S act
What does a search warrant authorise?
Authorise you to enter abs search any place, vehicle, other thing
For evidential material
In respect of an offence punishable by imprisonment
Who can apply for a search warrant?
Any Constable
Other persons (enforcement officers like customs) can apply under other enactments (column 2 of Acts schedule).
Private individuals / private investigators CANNOT. must make a complaint of an offence to police.
What are the types of device?
- interception device
- tracking device
- visual surveillance device.
S21 BORA 1990
Everyone has the right to be secure against
UNREASONABLE SEARCH & SEIZURE
whether of
PERSON, PROPERTY, CORRESPONDENCE or otherwise
S22 BORA 1990
Everyone has the right not to be arbitrarily arrested or detained
s23 BORA 1990
Rights of a person arrested or detained
Everyone who is arrested or detained shall:
- be informed at the time of arrest the reason for it
- right to consult and instruct a lawyer without delay
- right to have the validity of arrest determined - released if not lawful
- right to be charged promptly
- bought as soon as possible before court (if not released on bail)
- right to refrain from making a statement (informed of that right)
- treated with humanity and respect
S24 BORA 1990
Rights of a person charged
- informed promptly and in detail the nature of the charge
- released on reasonable terms / conditions - unless there is just cause for continued detention
- right to consult abs instruct a lawyer
- right to adequate time & facilities to prepare a defence
- right to a trial by jury (penalty is 2+ yrs imprisonment).
- right to receive legal assistance without cost
- assistance of an interpreter (cannot understand or speak the language used in court).
S25 BORA 1990
Minimum standards of criminal procedure
- right to a fair and public hearing by an independent and impartial court
- tried without undue delay
- presumed innocent until proven guilty
- not to be compelled to be a witness or to confess guilt
- right to be present at trial and to present a defence
- right to examine witnesses for the prosecution
- if penalty changes between commission of offence and sentencing - lesser of the penalty
- right to appeal
- in case of a child - dealt with in a manner that takes into account child’s age
If the penalty for an offence changes between the commission of the offence and sentencing - what sentence is given??
The lesser penalty
What is the penalty criteria for a jury trial?
Imprisonment for 2+ years
Key rules for police from the BORA 1990
1) if investigating an offence and want to question a suspect - must not suggest that it is compulsory for the person to answer
2) if questioning someone and have sufficient evidence to charge - must caution person before inviting them to make a statement or answer questions
3) if arrested / detained a person - must caution them even if already cautioned before arrested / detained
4) no power to detain a person for questioning or to pursue Enquiries - although a person can assist voluntarily
BORA 1990
21, 22, 23, 24, 25
21 - protection against unreasonable search & seizure
22 - protection against arbitrary arrest and detention
23 - rights of a person arrested or detained
24 - rights of a person charged with an offence
25 - minimum standards of criminal procedure
What is a search? BORA 1990
No set definition of search
Case law “search requires a conscious act of state intrusion into an individual’s reasonable expectation of privacy, as opposed to a mere observation”.
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Chapter 1: OT Act 1989 / Family Harm67
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Chapter 8: Selected Issues Law of evidence16
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Chapter 4: S&S; BORA29
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Chapter 2: Custody; Bail; Prosecution guidelines; Taser22
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Chapter 3 - Drugs, Alcohol, Mental health43
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Chapter 6: Strategic Awareness; Complaints involving Police53
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Chapter 5: Victims, Road Policing, Control And Command37
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Chapter 7: Staff Management17
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Chapter 9: Organisational Risk Management18
