Human rights and strip searches PDF

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This assignment is about a guy who was unlawfully arrested and strip-searched and sued the police. He went on to sue the police another two times and started an organisation, isuepolice.com to help others who have been mistreated by police....

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Luke Brett Moore Student Number 11606712

LAW318-Human Rights and Social Justice

Centre for Law and Justice Assessment Cover Sheet

Student name: Luke Brett Moore Student number:

11606712

Subject coordinator: Piero Moraro Subject code: LAW318 Human Rights and Social Justice Word count: 1761 including references Due date: 13 September 2021 Turnitin similarity percentage: 11%

Luke Brett Moore Student Number 11606712

LAW318-Human Rights and Social Justice

At 8pm on 15 April 2017 in Goulburn, NSW, Mr. Moore, a 26-year-old man with no criminal record was innocently walking down the street, minding his own business after leaving a local hotel1. Suddenly, he found himself approached by four police officers asking if he would speak with them. Mr. Moore refused, shook his head, and attempted to continue on his way. The four officers immediately surrounded him, demanding he stop, answer their questions, and submit to a search. Mr. Moore informed the officers he would not answer their questions, and that he did not consider it appropriate or lawful that he be stopped in the street and searched. This aggravated the officers who informed Mr. Moore he would be arrested if he did not comply with their demand to be searched. Mr. Moore, despite feeling very uncomfortable been touched by unknown men who were carrying guns, pepper spray and a tasers, allowed the officers to perform a frisk search. One officer forced Mr. Moore to empty his pockets and spread his legs while another ran his hands along his body in search of any illicit substances. The search was performed on the side of the road directly in front of the hotel, on the main street, in full view of hundreds of patrons. After the ordinary search and frisk search failed to locate anything illegal on Mr. Moore, the officer in charge told him he was going to be strip-searched, in the back of the police van, which was parked in front of the hotel, where many people had gathered to watch what was occurring. Mr. Moore, now terrified he was about to be sexually assaulted in a police truck in a public place, refused to submit to the strip-search. He informed the officers that they could only perform the search if the circumstances were so serious and urgent that it could be justified, and that even if the search was justified, which it wasn’t, it could not be performed in a public place as his privacy and dignity could not be preserved. He told the officers that he would not consent to the search, and that he would sue them if they persisted. Eventually, Mr. Moore stated that he would not be searched in the police van, but they could take him to the station to do it, although if they did, he would sue all of them. Mr. Moore was told he was under arrest for failing to obey an officer’s reasonable direction. He was handcuffed, driven to the police station and strip-searched, where nothing was found. He was released without charge.

1 Paul Gregoire, “Suing Police Over Unlawful Strip Search: An Interview With Luke Moore”, Sydney Criminal® Lawyers, 10/10/2019 < https://www.sydneycriminallawyers.com.au/blog/suing-police-over-unlawful-stripsearch-an-interview-with-luke-moore/> (Accessed 8/9/2021); Paul Gregoire, “Is It Illegal to Refuse a Strip Search in NSW”, Sydney Criminal® Lawyers, 18/10/2019 < https://www.sydneycriminallawyers.com.au/blog/isit-illegal-to-refuse-a-strip-search-in-nsw/ (Accessed 8/9/2021); Paul Gregoire, “Attempting a Hat-Trick of Successfully Suing Police: An Interview With ISUEPolice’s Luke Brett Moore”; Sydney Criminal® Lawyers, 3/9/2021 https://www.sydneycriminallawyers.com.au/blog/attempting-a-hat-trick-of-successfully-suing-policean-interview-with-isuepolices-luke-moore/ (Accessed 8/9/2021)

Luke Brett Moore Student Number 11606712

LAW318-Human Rights and Social Justice

Three days later the police attended Mr. Moore’s home and issued him with a court attendance notice for hinder police under s546C of the Crimes Act 1900 (NSW). The police attempted to argue that Mr. Moore’s refusal to be strip-searched in the police van, hindered their investigation into whether he had drugs on him or not. Mr. Moore was convicted in the local court, he then appealed to the district court, represented himself and was acquitted. He then sued the State of NSW and in 2020 reached a confidential settlement that he has said he was ‘very happy with’. Mr. Moore has since started an organisation, isuepolice.com which supports and assists other victims of police misconduct seek justice and compensation.

The main legislation involved in this case was the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and the Crimes Act 1900 (NSW). In Taufahema v The Queen [2006] NSWCCA 152 it was held that for a charge of hinder police to be made out under s546C of the Crimes Act 1900 (NSW) two elements must be satisfied. First, it must be shown that the person did actually hinder an officer, defined in Leonard v Morris (1975) 10 SASR 528 at 531 to mean “making the job of police substantially more difficult to perform”. Secondly, it must be shown that officer was, at the relevant time, in the execution of their duty. In Fernando v State of New South Wales [2017] NSWDC 387 the court stated if an officer is acting illegally, or making unlawful demands of a person, that is not in the execution of their duty. Section 31 of LEPRA permits an officer who suspects on reasonable grounds a person is concealing a prohibited item to strip search the person, if and only if, the seriousness and urgency of the circumstances require a strip-search to be carried out. Seriousness or urgency is not defined in the legislation and this has caused confusion among officers because they are not educated on when and in what circumstances they can force someone to undergo a strip search. This problem was evidenced by the Law Enforcement Conduct Commission (2020), and by Grewcock and Sentas (2019) who noted inadequate officer training, ambiguous legislation, confusing guidelines and more than 100 different Standard Operating Procedure’s across NSW police stations was causing potentially thousands of innocent people to be illegally strip searched every year. In R v Luke Moore 2017/00110421 NSW District Court Unrep., Mr. Moore argued, and the judge agreed that the demand to be strip-searched in the police van was unlawful, as the circumstances lacked the urgency required for a strip search to be lawfully carried out. Therefore, the officers were not acting in the execution of their duty and the charge could not be made out. Mr. Moore was committing no crime when initially approached by police. Despite not committing any crime, he was arrested for asserting his rights and refusing to be illegally strip-searched. It is not a crime to refuse an illegal strip-search, but it may be a crime to force someone to perform one. Section 61KE and Section 61KF of the Crimes Act 1900 (NSW) makes forcing a person to perform a sexual act a crime. Arguably, illegally ordering a person to strip-naked, using threats of force if they do not comply, is unlawfully forcing them

Luke Brett Moore Student Number 11606712

LAW318-Human Rights and Social Justice

to perform a sexual act. Currently, no police officer in NSW has been charged with an offence after forcing someone to undergo an illegal strip-search. Just some Human Rights Instruments and Articles that may have been relevant to this case include; 

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The Universal Declaration of Human Rights Article 12 and the International Covenant on Civil and Political Rights (ICCPR) Article 17, which prohibit arbitrary search and seizures. Article 9 of the ICCPR which concerns a person’s right to liberty and the right to not be arbitrarily detained. The Australian Parliament (2017) has accepted the UN Human Rights Commission’s meaning of arbitrary to include conduct or laws that are unjust, inappropriate, or unpredictable. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which notes policing is a valuable social service. Article 3 of the European Convention on Human Rights which prohibits degrading treatment or punishment. The United Nations Code of Conduct for Law Enforcement Officials, which speaks of the duty to protect people from illegal acts and to serve the community.

The main ethical issues in this case include the proper use of discretion explained by Prenzler (2013) and involve the extent to which, and in what circumstances a person’s right to privacy and bodily integrity can be justifiably violated by law enforcement officials. Crawshaw (1998) proposes that any curtailment of a person rights by police must satisfy the four requirements of proportionality, legality, accountability, and necessity (P.L.A.N) before that right can be justifiably violated. In Mr. Moore’s case the militarized policing strategy, described by Neyroud and Beckley (2001) used by police was disproportionate to the result they were trying to achieve (investigate whether Mr. Moore had an illicit substance on him). It should be clear that such a serious violation of a person’s rights can never be justified in circumstances where the police merely think a person may be carrying a quantity of an illicit substance small enough to fit in their underwear and not be felt from a pat down search. Weber et al (2014) may consider that it was a disproportionate and unreasonable response by police to Mr. Moore asserting his rights. The situation would be different if the police had reason to believe the person was carrying a weapon. That very well may amount to a serious and urgent situation and could be both proportionate and lawful. The police attempted to justify the legality of the search by referencing s31 of LEPRA, which gives them the power to strip search a person in serious and urgent circumstances. It can be difficult for police in the field to make decisions that may require a detailed legal analysis. Therefore, when it comes to strip-searches and other violations of a person’s rights, the police should always err on the side of caution, ensure they are acting lawfully and that citizens’ rights are protected, not violated.

Luke Brett Moore Student Number 11606712

LAW318-Human Rights and Social Justice

The police were held to account in this case because Mr. Moore fought to prove his innocence and had the knowledge to be able to pursue civil action. Many others are not so lucky. Body Camera footage, CCTV, police notebook entries and the availability of legal avenues to seek financial redress in Australia assisted in holding the police to account. In other countries and jurisdictions this is not always possible. It is almost never necessary to strip search a person who might be carrying a small quantity of illicit substance. In this instance, the police had no reason to suspect Mr. Moore was out to harm anyone or himself and so, a strip-search was not necessary or justifiable. The Commonwealth Manual on Human Rights Training for Police describes Human Rights as moral rights belonging to everyone by reason of them being human. The UN Human Rights and Law Enforcement guidelines for police (HR/P/PT/5/Add.2) considers Human Rights as legal guarantees that protect a citizen from unjustifiable government interference with their dignity and fundamental freedoms. Mr. Moore’s rights were at stake, he stood up to the police in an attempt to protect those rights, then had those rights further breached for doing so. The ACT Human Rights Act 2004 and the Charter of Human Rights and Responsibilities Act 2006 (Vic) contain provisions which consider that compensation after been wrongly arrested or assaulted by police is a human right but in NSW this is not the case. Nevertheless, the legal mechanisms in place allowed him to assert his lawful right to seek compensation, which he successfully did. This creates another set of ethical issues because in the end, it is the taxpayer that foots the bill for police misconduct.

Luke Brett Moore Student Number 11606712

LAW318-Human Rights and Social Justice

Bibliography

Articles Grewcock, M and Sentas, V (2019), Rethinking Strip Searches by NSW Police, UNSW Law Enforcement Conduct Commission (2020) Inquiry into NSW Police Force strip search practices

Books Crawshaw, R.(1998) 'Human rights and policing: standards for good behaviour and a strategy for change', Kluwer Law International. Neyroud, P and A Beckley (2001) 'From Ethics to Rights' in Policing, Ethics and Human Rights, Willan Publishing: Abingdon, Oxon Prenzler, T (2013). ‘Police ethics’ in Ethics and Accountability in Criminal Justice: Towards a Universal Standard (2nd edition) Weber, L., Fishwick, E., & Marmo, M. (2014). Policing. In Crime, Justice and Human Rights, Palgrave Macmillan, London

Cases Fernando v State of New South Wales [2017] NSWDC 387 Leonard v Morris (1975) 10 SASR 528 R v Luke Moore 2017/0011042 NSW District Court Unreported Taufahema v The Queen [2006] NSWCCA 152

Legislation ACT Human Rights Act 2004 Charter of Human Rights and Responsibilities Act 2006 (Vic) Crimes Act 1900 (NSW) European Convention on Human Rights

Luke Brett Moore Student Number 11606712

LAW318-Human Rights and Social Justice

International Covenant on Civil and Political Rights Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) UN Human Rights and Law Enforcement guidelines for police (HR/P/PT/5/Add.2) United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials United Nations Code of Conduct for Law Enforcement Officials Universal Declaration of Human Rights

Websites

Australian Parliament (2017), “Parliamentary Joint Committee on Human Rights, Scrutiny Reports 2017” https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny _reports/2017/Report_11_of_2017/c01 (Accessed 10/9/2021) Luke Moore (August 2021), Do you feel harassed by police? www.isuepolice.com (accessed 10/9/2021) Paul Gregoire, “Attempting a Hat-Trick of Successfully Suing Police: An Interview With ISUEPolice’s Luke Brett Moore”, Sydney Criminal® Lawyers, 3/9/2021 https://www.sydneycriminallawyers.com.au/blog/attempting-a-hat-trick-of-successfullysuing-police-an-interview-with-isuepolices-luke-moore/ (Accessed 8/9/2021) Paul Gregoire, “Is It Illegal to Refuse a Strip Search in NSW”, Sydney Criminal® Lawyers, 18/10/2019 < https://www.sydneycriminallawyers.com.au/blog/is-it-illegal-to-refuse-a-stripsearch-in-nsw/ (Accessed 8/9/2021) Paul Gregoire, “Suing Police Over Unlawful Strip Search: An Interview With Luke Moore”, Sydney Criminal® Lawyers, 10/10/2019 < https://www.sydneycriminallawyers.com.au/blog/suing-police-over-unlawful-strip-searchan-interview-with-luke-moore/> (Accessed 8/9/2021)

Other Commonwealth Manual on Human Rights Training for Police...