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A recent report has found that whilst processes for searching music festival patrons has improved, less than half of police officers who carried out strip searches at music festivals had completed specialist music festival training.

The report by the Law Enforcement Conduct Commission (‘LECC’) reviewed 359 police records from 83 general searches and 77 strip searches at 5 music festivals held between 2021 and 2022.

Whilst it ultimately found that police officers have clear training and processes for searching music festival patrons, Acting Chief Commissioner, Anina Johnson highlighted that training and policies alone are not enough to change conduct.

“It is critical that new processes are effectively communicated to all police officers and reinforced with proper supervision on the ground.” said Johnson.

Through reviewing the records, the LECC noted that only 47% of officers completed the training within the required timeframe, 28% of officers did not complete the training at all, and 25% completed training but not in the required timeframe.

In police notebook recordings of details related to strip searches, only 30% of strip search records reflected consideration of ‘seriousness and urgency’, only 27% of strip search records contained information indicating police followed strip search rules, and 68% of strip search records reflected adequate consideration of suspicion on reasonable grounds.

The report also found that officers performing searches at the festivals had regularly not used a ‘music festivals field processing form’ which is designed to assist police in complying with the relevant law and policy.

In response, the NSW Police Force acknowledged these deficiencies. They largely attributed the results from the 2021-22 review to a change in organisational priorities due to COVID-19 public health orders and restrictions.

They noted that they have “reminded” and “re-communicated” the music festivals training and guidelines to all officers in the field throughout the state.

 

NSW Police Force Music Festival Processes and Training

The main components of specialist music festival training for police officers include the ‘Music Festivals Fundamentals Training Package’ and use of the ‘Music Festivals Field Processing Form’.

The field processing form prompts officers to ask a person upon whom a drug dog has indicated, 3 mandatory questions which are:

  1. Have you got any prohibited drugs on you?
  2. Have you been in an environment or around anyone using prohibited drugs in the last 24 hours?
  3. Have you taken any prohibited drugs in the last 24 hours?

The answers to these questions are meant to assist officers in understanding why the drug dog indicated, including in circumstances where no drugs are located by a search.

The form includes space (under ‘Behaviours/Admissions/History’) for the police officer to record their observations which have been relied upon to inform their suspicion that a search is warranted.

There is a space for officers to indicate whether a ‘general’ or ‘strip’ search is required.

The form states that: ‘before strip searching you must complete the form to this point and consult a process supervisor.’

It provides a prompt for the Process Area Supervisor to record their satisfaction with the reasons to progress to a strip search. The searching officer will then complete the strip search section if required.

The ‘strip search’ section provides a list of 5 ‘seriousness/urgency considerations’ which officers may tick, being:

  • safety concerns
  • destruction of evidence
  • indictable offence
  • ingestion of drug
  • other (with limited space for details).

The Music Festivals Fundamentals training package is a learning module for police officers in NSW, which is mandatory to complete the module within 12 months prior to working at a music festival.

It is supposed to educate officers on how to identify symptoms of drug and alcohol use and the importance of seeking medical attention, distinguish between a general search and a strip search, understand the importance of recording justification for searches and identify and apply strip search requirements for both adults and young people.

It includes specific reference to the ‘field processing form’ and an example of how to use the form, as well as emphasis on the importance of officers recording details of the search in their official police notebook and systems.

 

What Powers Do Police Have to Strip Search You?

Police are provided with the power to stop, search, and detain a person, without a warrant, as outlined in section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’).

It says that police may stop, search, and detain you, without a warrant, if they suspect on reasonable grounds that you possess or control:

  1. something stolen or otherwise unlawfully obtained,
  2. anything used or intended to be used in or in connection with the commission of a relevant offence,
  3. considered a dangerous article (i.e., prohibited weapon, firearm, spear gun) in a public place that is being or was used in or in connection with the commission of a relevant offence,
  4. considered a ‘prohibited drug’ or ‘prohibited plant’ in contravention of the Drug Misuse and Trafficking Act 1985 (NSW).

They are able to seize and detain anything in your possession (or under your control) that relate to these outlined items, if found.

The two main types of search are a ‘general’ search or ‘strip’ search.

A search will be characterised as a ‘strip’ search where a person is required to remove more than their outer layer of clothing (i.e., coat/jacket, gloves, shoes, socks, hat) during a search.

A strip search may involve you removing some or all of your clothing. Police are permitted to conduct a strip search under section 31.

The requirements that police must follow when conducting a strip search include it being conducted in a private area, as well as not in the presence or view of a person who is of the opposite sex, or whose presence is not necessary for the purposes of the search.

However, these protections apply only where it is considered ‘reasonably practicable in the circumstances’ as per section 23.

They must not involve a search of a person’s body cavities or an examination of the body by touch.

It has also been held that police officers cannot make individuals ‘squat and cough’ or remove a tampon, as this would effectively enable a cavity search, which is a forensic procedure required to be carried out by a medical professional where ordered by the court, as per section 5 of the Crimes (Forensic Procedures) Act 2000 (NSW).

Furthermore, strip searches, carried out at a police station or other place of detention, can only be conducted when the police officer suspects on reasonable grounds that this is necessary for the purposes of the search.

A strip search not conducted at ‘a police station or other place of detention’ (i.e., in a tent at a music festival or a police van after being stopped on the street), can only be conducted when the police officer suspects on reasonable grounds that it is necessary for purposes of the search and that the seriousness and urgency of the circumstances make it necessary.

Whether a situation is ‘serious and urgent’ will depend on the facts of the situation. Police officers are required to have a legitimate answer as to how the relevant situation fulfills this. Arguably this is broad with little definition as to what meets the requirements of “the seriousness and urgency of the circumstances make it necessary”.

 

What are Reasonable Grounds to Perform a Search?

A police officer ‘suspecting on reasonable grounds’ is a key theme throughout this power.

The formation of reasonable grounds for suspicion involves the consideration of less than a belief but more than a possibility. A factual basis for this suspicion must be established by the officer to shed light into what was that information, and what was the source of that information, in the officer’s mind in order for the court to then consider whether that afforded reasonable grounds to form that suspicion form an objective point of view.

 

Is a Drug Dog Indication Enough to Amount to Reasonable Suspicion to Search?

The NSW Police Force’s Drug Detection Operational Plan prescribes that ‘drug dog indication alone is NOT enough to form reasonable suspicion’ and ‘nervous behaviour is not necessarily information to support suspicion on reasonable grounds,’

In their culmination, matters which can reflect adequate consideration of suspicion on reasonable grounds include the location being well known for ‘drug activity’, as well as the person:

  • admitting to using drugs,
  • appearing to be under influence of drugs/alcohol (i.e., stumbling, glassy or bloodshot eyes),
  • being fidgety or nervous when interacting with police,
  • having prior criminal history or intelligence-related reports for drug possession or supply,
  • avoiding, walking, or running away from drug dogs,
  • being observed exchanging money for something covered.

The formation of reasonable suspicion will usually be based on numerous factors.

If police officers do not have reasonable grounds to search you, or do so in an improper or illegal way, any evidence obtained may be excluded by the court. This could lead to any resulting charges being dropped.

This is due to section 138 of the Evidence Act 1995 (NSW) which prescribes hat any evidence that was improperly or illegally obtained may not be admitted by the court, unless the desirability of admitting the evidence outweighs the undesirability of admitting such evidence.

By Poppy Morandin and Jimmy Singh.

Image credit: Roberto Del Bianco.

Published on 16/10/2023

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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