2
Search and Surveillance Powers
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in our view the ability to conduct a search under section 57a only after a decision
has been made that a person is not to be granted bail is too restrictive. We
consider that a person should be considered to be locked up for the purposes of
section 57a if he or she is to be detained in secure custody in a police facility
whether pending his or her first appearance in court, a decision as to bail
pursuant to section 21 of the Bail act 2000, or for taking particulars pursuant
to section 57 of the Police
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The absence of any threshold before exercising the section 57a search power
may be seen as being at odds with our proposals for the power to search the
arrested person incidental to arrest, where we propose a prerequisite of
reasonable grounds to believe. This may sometimes mean that the police officer
conducting the search at the lock-up will find evidential material relating to the
offence for which the person was arrested when there were no grounds for
believing that the arrested person was in possession of the item concerned. There
is thus the potential for a police officer who may have no more than a suspicion
that the arrested person is in possession of evidential material to simply delay
the search to the time when no threshold of belief is required.
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This possibility is also a weakness in the present law. We have therefore
considered whether a threshold of belief should be a prerequisite for a section
57a search. Such a threshold could only relate to items that pose risks to the
safety of the arrested person or other prisoners, the security of the arrested
personfs property and the security of the premises in which they are detained.
however, there may often be very little to indicate whether the arrested person
has such items in his or her possession upon arrest. There may also be no
grounds for believing that an innocuous item such as a pen could be used in a
way that creates safety or security risks. in a great many cases the existence
of any risk arising from an arrested person retaining his or her valuables and
other property whilst in custody would be likely to be a matter of intuition or
chance rather than belief.
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We conclude, therefore, that a threshold requirement is not compatible with the
objectives of the search power contained in section 57a, as it would in many
cases frustrate those purposes. accordingly, we recommend that the power to
search arrested people who are to be locked up should not be subject to the
requirement for a threshold to be reached before such a search
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The authority to search is still limited only to those who are to be detained; it
would not apply to an arrested person who is released immediately on police
bail, or pursuant to a summons issued under section 19a of the Summary
Proceedings act 1957. Moreover, as the power is discretionary and not
mandatory, there may be no need for such a search in some circumstances for
example, where the arrested person had been recently searched pursuant to some
other search power.
Search by members of the police other than constables
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under section 6(2) of the Police act 1958, non-sworn members of the police may,
if warranted by the commissioner, exercise particular powers of a sworn officer
except a power to arrest or search any person. The Police have queried the
appropriateness of retaining the restriction on searching people who are in police
