S&S and BORA

Question 1

Which power should be used for searching arrested/detained persons

Answer 1

1. a rubdown search under S.85-87

2. a warrantless search under S.88

Question 2

What does “locked up” mean

Answer 2

“Locked up” means a person taken into lawful custody and being placed behind a closed or locked door that prevents them from leaving

Question 3

When may you search a person under S.11 S&S

Answer 3

You may search a person who has been taken into lawful custody and is;

1. at a Police station
2. in other premises, or in, or about to be placed in a vehicle being used for Police purposes AND
3. is, or is about to be, locked up

Question 4

After a person has been locked up they can only be searched if

Answer 4

1. they were not searched before being locked up
2. since being searched before being locked up, they have been in, or re reasonably suspected of having been in, close proximity to
   - a person who was not locked up in Police custody
   - another person who was eligible to be searched after being locked up but was not, or
   There are reasonable grounds to believe the person is in possession of anything that may be used to harm themselves or others

Question 5

When are oral S&S applications allowed

Answer 5

An issuing officer may allow an application to be made orally and excuse an applicant from putting all or part of the application in writing if satisfied that:

1. requiring a written application would result in delay that would compromise the effectiveness of the search AND
2. the question of whether the warrant should be issued can be properly determined on the basis of an oral communication or personal appearance AND
3. all the required information is supplied to the issuing officer

Question 6

What must you do after an oral application

Answer 6

The applicant must enter the application and the outcomes of the search warrant as soon as practicable in the online S&S system

Question 7

What is S.21 BORA

Answer 7

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, correspondence or otherwise

Question 8

What is S.22 BORA

Answer 8

Everyone has the right not to be aribtrarily detained or arrested

Question 9

When will a person be regarded as detained

Answer 9

1. there is physical deprivation of a person’s liberty, or
2. there are statutory restraints on a person’s movement, or
3. they have a reasonably held belief induced by Police conduct that they are not free to leave

Question 10

What are the rights under S.23 BORA

Answer 10

1. be informed of the reason for arrest/detention at the time of arrest/detention
2. consult and instruct a lawyer without delay and to be told of that right
3. have the arrest or detention’s validity determined by the court by way of habea corpus and to be released if it is not lawful
4. after arrest, to be charged promptly or released
5. if not released after arrest, to be brought before a court or tribunal as soon as possible
6. refrain from making any statement and to be informed of that right
7. be treated with humanity and respect