Strip searches could be abuse of power

Strip searching a suspect before interrogation is tantamount to intimidation and abuse of power unless the police have reasonable suspicion the person is carrying something illegal, according to criminal lawyers.

They were reacting after two Sliema councillors were strip searched before an interrogation at police headquarters.

Lawyer Edward Gatt, who is not involved in the case, said it made no sense to strip search somebody called in for questioning on suspected theft or misuse of a council laptop.

“It is pointless for the police to justify their acts by saying this is normal procedure to ensure the accused person’s safety. If they do, they are insulting our intelligence. The intention is to intimidate the person,” Dr Gatt said.

Another leading criminal lawyer, Giannella Caruana Curran, said the police had no right to strip search anyone unless they had reasonable suspicion the suspect was carrying something illegal under his clothes or in his private parts.

“Otherwise, a strip search would be an abuse of power, apart from being inhuman and degrading,” she said.

Arresting someone on suspicion of having committed a crime, she added, did not entitle the police to do whatever they pleased.

Both lawyers acknowledged there could be circumstances warranting a strip search, such as when the person had a drug habit and the police suspected he had an illegal substance in his possession, or when the detainee had suicidal tendencies and the police wanted to ensure he was carrying nothing he could use to harm himself.

However, the circumstances in the most recent case did not seem to point in any of these directions, Dr Gatt noted.

Sliema councillors Martin Debono (Labour) and Yves Bobby Calì (Nationalist) were arrested last week on suspicion of making personal use of two laptops bought by the council and which were allegedly returned without the hard drive.

Both later claimed they were searched in front of police officers while in custody. Mr Debono said he was stripped naked and Mr Calì reported he was allowed to retain his underwear. They claimed they were held in a cell for 24 hours before being told they could leave.

The police have defended their behaviour: “The search carried out on Mr Debono was a normal procedural search done for the safety of those who are detained at the police lock-up so as not to hurt themselves or the custodian officers while in police custody.”

When asked about the allegations a spokesman said “nothing degrading” was ever reported to have been committed on the people arrested. “Searches on persons detained are performed by the custodian officer in a private room solely used for such purpose.”

However, the police failed to answer questions as to whether they had clear guidelines on how strip searches should be conducted. The Sunday Times also asked to see a copy of the guidelines.

No answer was forthcoming either as to why Mr Debono was made to remove his underwear while Mr Calì was allowed to retain his.

According to Dr Caruana Curran if it is normal police practice to strip search people detained for questioning then this is wrong.

“The law does not allow them to strip search anyone simply because they are the police,” she said.

Her words echo those of another top criminal lawyer who said not all circumstances warranted the use of a strip search, which he described as “an extreme” form of action.

“It all depends on the circumstances of the case and whether it is necessary to subject the person to such a humiliating experience,” lawyer Joe Giglio said. He added that, in certain scenarios, it could be justified if there were doubts over whether the person concerned was carrying something that could be used to harm himself or others.

For Dr Giglio, the issue boils down to the treatment afforded to arrested suspects. “Besides being confined to a cell and subjected to incessant questioning in an attempt by the investigating officer to extort a statement he may want, you also have strip searches being used as a tool,” he said.

Lawyer Veronique Dalli said the Criminal Code spoke “in particular” of body searches when the police suspected the carriage of drugs.

In such cases the law said the police had to obtain a warrant from the duty magistrate to perform an “intimate” search. An expert would need to be appointed to conduct such a search.

Quoting article 355 of the Criminal Code, Dr Dalli said the police had to base their request for an intimate body search on “reasonable suspicion”.

“If somebody feels his rights have not been respected as outlined in the Criminal Code, he should challenge the police in court,” she said, although the circumstances of the case involving the councillors seem to be different.

Dr Dalli noted though that claims of the police putting undue pressure on arrested suspect were on the increase.

Dr Gatt said police seemed to have resorted to various techniques of subtle and not-so-subtle intimidation. He insisted it was about time something was done about the matter.

In the UK, he said, there were specific by-laws that regulated police behaviour during interrogation to ensure decisions, such as whether to strip search a detainee would not be dependent on traditional procedure.

“We have introduced the right for an accused person to consult his lawyer during an interrogation in its most crude form, years after other countries.

But we have to improve matters further because it is unfair on an arrested person who is in his most vulnerable state to be subjected to such treatment,” Dr Gatt said.

Unanswered questions

The following set of questions sent to the police on Monday about the Martin Debono and Yves Bobby Calì case and the procedure used to strip search suspects remained unanswered.

The police only came back with general replies (reported in the article) on the allegations made by Mr Debono.

1. Is it normal police procedure to strip search people who are held for questioning at the depot?

2. Are all suspects held for questioning strip searched?

3. Do the police have clear guidelines on strip searches at the depot (i.e. when these should be conducted and how)?

4. The newspaper would like to see a copy of the guidelines.

5. If there are no guidelines, what criteria were used in this particular case to determine why Mr Debono should be stripped naked?

6. Why was Mr Debono asked to remove his underwear while fellow councillor Yves Calì was left with his underwear on?

ksansone@timesofmalta.com