Chapter 4: S&S; BORA

Question 1

What are the two search powers that can be exercised to search an arrested or detained person?

Answer 1

• rubdown search (85-87 S&S act 2012)

- warrantless search under s88

Question 2

Section 85 Search & Surveillance Act 2012

Answer 2

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

Question 3

S86 Search & Surveillance Act 2012

Answer 3

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

Question 4

S87 Search & Surveillance Act 2012

Answer 4

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

Question 5

S88 Search & Surveillance Act 2012

Answer 5

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

Question 6

S11 Search & Surveillance Act 2012

Answer 6

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

Question 7

What does locked up mean?

Answer 7

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)

Question 8

When can you search people after they have been locked up??

S11 S&S act 2012

Answer 8

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

Question 9

Can you search under s11 when prisoners are moved to other stations?

Answer 9

Only if person has been in proximity to unsearched people / reasonable grounds to believe possession of item that can harm (11(3)).

Question 10

Timing of s11 searches

Answer 10

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

Question 11

When is a search warrant required?

Answer 11

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

Question 12

What does a search warrant authorise?

Answer 12

Authorise you to enter abs search any place, vehicle, other thing

For evidential material

In respect of an offence punishable by imprisonment

Question 13

Who can apply for a search warrant?

Answer 13

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.

Question 14

What are the types of device?

Answer 14

• interception device
• tracking device
• visual surveillance device.

Question 15

S21 BORA 1990

Answer 15

Everyone has the right to be secure against

UNREASONABLE SEARCH & SEIZURE

whether of

PERSON, PROPERTY, CORRESPONDENCE or otherwise

Question 16

S22 BORA 1990

Answer 16

Everyone has the right not to be arbitrarily arrested or detained

Question 17

s23 BORA 1990

Rights of a person arrested or detained

Answer 17

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

Question 18

S24 BORA 1990

Rights of a person charged

Answer 18

• 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).

Question 19

S25 BORA 1990

Minimum standards of criminal procedure

Answer 19

• 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

Question 20

If the penalty for an offence changes between the commission of the offence and sentencing - what sentence is given??

Answer 20

The lesser penalty

Question 21

What is the penalty criteria for a jury trial?

Answer 21

Imprisonment for 2+ years

Question 22

Key rules for police from the BORA 1990

Answer 22

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

Question 23

BORA 1990

21, 22, 23, 24, 25

Answer 23

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

Question 24

What is a search? BORA 1990

Answer 24

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”.

Question 25

What is not a search?

Answer 25

Kneeling abs using a torch to observe an article secreted inside a car headlight

• asking a person to hold up a bicycle so the serial number can be checked
• asking a person to hold out their hands for inspection

Question 26

Definition of seizure

Answer 26

No statutory definition

“Removing something from the possession of someone else”.

Question 27

Arrest definition

Answer 27

Communicated intention on the part of the police officer to hold the person under lawful authority

Question 28

Detention definition

Answer 28

A person will be regarded as detained if:

• there is physical deprivation of a persons liberty
• there are statutory restraints on a persons movement
• they have a reasonably held belief induced by police conduct - that they are not free to leave.

Question 29

Examples of arrest or detention

Answer 29

Formally arrested

Handcuffed

Locked in a room or building or put in a lace they cannot leave voluntarily

Placed in a police vehicle against their will