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Police Monthly article - strip searches

The Law Enforcement Conduct Commission (LECC), the NSW Police Force oversight body, is currently looking into strip searches performed on people in custody

Section 27 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) provides that a police officer who arrests or is present at the arrest of any person may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that the person is carrying anything that would present a danger to a person, could be used to assist a person to escape from lawful custody, is a thing with respect to which an offence has been committed, is a thing that will provide evidence of the commission of an offence, or that was used, or is intended to be used, in or in connection with the commission of an offence.

Sections 31 to 33 of LEPRA set out when and how strip searches can be conducted. Reasonable privacy must be provided for the person searched, and they have to be done as quickly and least invasively as is reasonably practicable. The searching officer must be of the same sex as the person being searched.

The strip search must not occur in the presence or view of a person of the opposite sex, unless there is no objection. It is important to comply with the provisions of Part 15 of LEPRA. This includes the need to provide the reason for the strip search to the person being searched.

Additional requirements apply to the strip searching of young and intellectually impaired persons.

A record should be made of the reasons for the strip search and the manner in which Part 15 was complied with. It is also important to note that a strip search carried out simply because a person is in police custody is not a valid exercise of power.

A failure to comply with the provisions of Part 15 of LEPRA or to satisfy the grounds required for a strip search to be carried out could make a police officer potentially liable to disciplinary action. Furthermore, it could lead to civil action being commenced by the person unlawfully strip searched.