Criminal Law

By Charlene Harris

03.09.19

Hands up, pants down – strip searches on the rise

What do music festivals, train stations, regional town shows and supermarkets have in common?  They are all locations where strip searches have been conducted by police.

Strip searches are inherently intrusive and can be both humiliating and degrading for the person being searched.  Because of this, strip searches should be reserved for exceptional and serious circumstances where the search is absolutely necessary.  Yet a recent report by Dr Michael Grewcock and Dr Vicki Sentas for the University of New South Wales (UNSW), titled Rethinking Strip Searches by NSW Police, has highlighted the increasing numbers of strip searches being executed in New South Wales.  It reports an almost twenty-fold increase in less than twelve years, from 277 strip searches in 2005-2006, to 5,483 strip searches in 2017-2018.  Perhaps just as concerningly, it reports that 64 per cent of the time, nothing was found in those strip searches.

In the 2017-2018 financial year, 45 per cent of all recorded strip searches were of young people aged 25 years and younger.  Only 30 per cent of all strip searches during this period resulted in people being charged.

The main reason cited by police for executing strip searches was for suspicion of drug possession, making up 91 per cent of all strip searches.  Almost 82 per cent of charges arising from strip searches were for drug possession, 16.5 per cent were for drug supply, and less than 1.5 per cent were for possession or use of an unauthorised weapon.

In recent days, NSW Police Commissioner Mick Fuller has hit back, stating that UNSW had the figures incorrect in their report and failed to understand their context.  He said there were at least 800 strip searches in the 2005-2006 period rather than the figure of 277 cited in the report, and attributed the increase in numbers to a change in the legal definition of a search and the improvement of data recording.

Whatever the numbers, it is important that you know your rights if you get caught in this situation.  Below is a summary of police powers and your rights.  Given the increase of strip searches in New South Wales, this focuses on the relevant New South Wales legislation, the Law Enforcement (Powers and Responsibilities) Act 2002, however similar rights exist in the ACT.

What is a search, and what is a strip search?

 A general search is when police quickly pat down outer layers of your clothing, and it can include asking you to take off your jacket/jumper, socks, hat and/or gloves.  Anything more than that is a strip search.  As the name suggests, a strip search may require you to remove all of your clothes and have your body and clothes examined.

What grounds do police need to conduct a search or a strip search without a warrant?

 In order to stop and search you without a warrant, police need to suspect on reasonable grounds that you have something in your possession or control that is:

  • stolen or otherwise unlawfully obtained;
  • used or intended to be used in connection with the commission of a relevant offence;
  • a dangerous article that is or was used in, or in connection with, the commission of a relevant offence; or
  • a prohibited plant or prohibited drug.

Therefore, a positive detection by a sniffer dog at a festival would give police the right to conduct a standard search.  However, it would not be enough for police to conduct a strip search.  Police would need to have other reasons for suspicion to conduct a strip search, as a strip search requires police to suspect on reasonable grounds that the strip search is necessary for the purposes of the search.

What parts of my body can police search?

 Police cannot search any body cavities except for your mouth.  Unless police suspect on reasonable grounds that it is necessary, police must not search your genital area which includes asking you to lift your testicles or pull back your foreskin.  Similarly, if you are a female or a transgender person who identifies as female, police must not search your breasts, including asking you to lift your breasts, unless they suspect on reasonable grounds that it is necessary to do so.

Despite its prevalence, police cannot require you to ‘squat and cough’ as part of a strip search.  That is a cavity search and requires a court order.

What do police have to inform me?

 Police must inform you whether you will be required to remove clothing during the search and why it is necessary to remove your clothing.  Police must also ask for your cooperation.

However, in any dealings with police you should also ask the name of the officer and the police station where they work.

  Do I need to consent to a strip search?

 No, you do not.  However, it is an offence to refuse a lawful strip search, and police can use reasonable force to search you.  What you should do is cooperate with police in the strip search (to avoid being charged with resisting police), but you should ask them to record in their police notebook that you do not consent to the search, as this may help in your legal defence later if you are criminally charged.  The reason is this: if you consent to the search, police are then able to conduct the strip search without having a suspicion on reasonable grounds that the strip search is necessary.

 When and where are police allowed to carry out a strip search?

 Police are authorised to carry out a strip search at a police station if they suspect on reasonable grounds that the strip search is necessary for the purposes of the search.

If the search is carried out in any other place, in addition to the above, the police officer must also suspect on reasonable grounds that the seriousness and urgency of the circumstances make the strip search necessary.  In this case the strip search must be conducted in a private area.

Unless it is your parent, your guardian, your personal representative or a medical practitioner and you do not object to them being present, the search must not be in the view or presence of a person of the opposite sex.  The search also cannot be conducted in the view or presence of someone whose presence is not necessary for the purposes of the search.

Police cannot carry out a strip search while you are being questioned.  If you were being questioned beforehand, police must suspend the questioning while the search is being carried out.

  What about my privacy and dignity?

 Police must conduct the search in a way that provides reasonable privacy for you and must conduct the search as quickly as reasonably practicable.  The search must be the least invasive kind practicable, must not involve searching your body cavities or examining your body by touch.  The search must also be conducted by a police officer of the same sex as you.

Police must not require you to remove more clothes than they believe on reasonable grounds to be reasonably necessary for the purposes of the search.  Similarly, police must not engage in any more visual inspection than they believe on reasonable grounds to be reasonably necessary for the purposes of the search.

You must also be allowed to get dressed as soon as the search is complete.  If any or all of your clothing is seized because of the search, police must ensure you are left with or given reasonably appropriate clothing.

What if I am under 18 years old or have impaired intellectual functioning?

 Anyone younger than 10 years old cannot be subject to a strip search.  However, if you are between 10 and 17 years of age, or if you have impaired intellectual functioning, police are legally required to obtain a support person such as your parent or guardian.  The only exception is if police believe that delaying the search is likely to result in evidence being concealed or destroyed, or that an immediate search is necessary to protect someone’s safety.

What should I do if I have been strip searched?

 If you have been strip searched, you should immediately seek legal advice.  If police have performed the search unlawfully, for example by requiring you to remove more clothing than necessary, by examining you by touch, or by conducting a search in public where the circumstances were not serious or urgent enough to warrant it, you have been strip searched unlawfully.  If you end up being charged with a criminal offence as a result of an unlawful strip search, the courts have discretion to exclude the evidence obtained in that search from your hearing or trial.  That is, the Court may decide not to allow the evidence obtained in the search to be relied upon at your hearing or trial, which can result in you being acquitted.  You may also have grounds for civil action (for example, suing police for false imprisonment as a result of an unlawful search), and you may be eligible for compensation.

Our team at Aulich will be able to advise you about the legality of the search and any avenues you may want to pursue.  Contact us on 6279 4222.