LEGAL CHALLENGES AVAILABLE TO POLICE USE OF STRIP SEARCHES

Drugs In Schools Bring Extreme Reaction, Report Says

Strip searches of students have occurred in some of our secondary schools,
according to the Auckland District Law Society's public issues committee in
a recent paper. They are among the most invasive practices that the State
can apply to the civil liberties of its citizens, but are they legal?

The problem of illicit drugs in schools is one of the most pressing and
challenging issues facing the pre-tertiary education system of late. This
was reflected in the Ministry of Education's suspension statistics for the
year ending July 2000, where the suspension of students for drugs comprised
31% of all suspensions, the highest of all categories reported by the
ministry. The issue was noted in the ministry's report as a specific area
of concern.

Some schools, with the assistance of the police, have been taking firm
measures to attempt to counter this problem. These measures have included
the police conducting school-wide searches at the invitation of board of
trustees. These searches usually involve the police entering the school
(with a search warrant), under the school board's authority and conducting
a bag search at a school assembly, often with the assistance of drug dogs.

However, until a publicised incident last June at an Auckland secondary
school, the Auckland District Law Society's public issues committee
understands there had been no reported cases of police strip-searching
students on the school's premises following a drug related incident,
despite the common intervention of police in schools, with regards to the
drugs issue.

There are a number of rules that are relevant to strip searches in schools.
Section 21 of the Bill of Rights Act provides protection against
unreasonable search and seizure. In addition, section 23 of the Bill of
Rights Act sets out the rights of people detained or arrested, including
the right to be treated with respect for dignity and humanity.

However, section 18(3) of the Misuse of Drugs Act gives police the power to
search without warrant or consent, if they have reasonable grounds to
suspect the detainee has restricted drugs on his or her person.

Section 18(4) of the Act requires the police inform the detainee they are
going to conduct the search under the above sub-sections of the Misuse of
Drugs Act, before searching. Furthermore, section 18(6) of the Act requires
a police officer, who undertakes a search through the exercise of his or
her powers under section 18(3) of the Misuse of Drugs Act, to furnish the
Commissioner of Police with a written report within three days of the date
that the search occurred. The report must detail the exercise of the power
under the Act and the circumstances in which it came to be exercised.

The Children, Young Persons and Their Families Act specifies the
requirements for the conduct of police officers when questioning young
people, aged 16 or under (section 215), and who a young person can choose
to have present during police questioning (section 222).

This includes the right of the young person to have an independent adult of
their choice present during this process. If this person is unavailable,
then the police must organise someone from the young person's list of
independent nominated people to be present.

The same protection is available for under 17-year-olds when questioned by
police at a police station subsequent to arrest or in relation to the
possible commission of an offence (section 229).

In addition, Article 16 of the United Nations Convention on the Rights of
the Child (which applies to young people below the age of 18) provides that
no child shall be subject to arbitrary or unlawful interference with his or
her privacy, family, home or correspondence and shall have the right to the
protection of the law against such interference or attacks.

The committee considers recent events highlight concerns about the manner
in which schools and the police are presently dealing with drugs in schools
and the processes (or lack thereof) that they have in place when dealing
with these matters.

Procedures such as the strip search of students clearly degrade and
humiliate. Case law has indicated a police search can be deemed
unreasonable under the Bill of Rights, irrespective of the legitimacy of
the legal grounds under which it was authorised. It is a matter of context.

As the Court of Appeal stated in R v Ririnui, "the intrusiveness and
invasion of privacy involved in any search of the person is such that it
ought to be conducted to no greater extent than the circumstances
reasonably require".

The committee acknowledges that while drugs are causing undoubted problems
for our schools, it is important policing is balanced with the due
consideration for the legal rights of the students concerned. Strip
searches are among the most invasive practices that the State can apply to
the civil liberties of its citizens. The threshold for its use is,
therefore, necessarily high.

This is particularly the case with young people, who are accorded
additional legal rights in their dealings with the police in
acknowledgement of their inherent powerlessness. Furthermore, unreasonable
searches are likely to instill disrespect for the law and those who enforce
it among people of an impressionable age.

For those reasons the committee hopes that the police and school
administrators will act with respect for the legal rights of students when
dealing with drug allegations in schools.