The power of strip search by the executive police : a critical analysis through past and recent case law

Abstract

This Research Project aims to endeavour the concept of Strip Searches as a power of the police, against the rights and dignity of the accused. While a great deal of legal literature has dealt with the main powers of the police, including arrests and searches, no previous dissertation delves into the power to strip search. Since this procedure is adopted quite often, there is the increasing need to examine our contemporary position while enhancing a better understanding of the fundamental areas which need to be updated in Malta's laws. Although, the authority of the police to strip search an individual is provided for in the law, this is rather broad. Most of the procedures which are adhered to during such a function, are known to the executive police through Standard Ordinary Procedures (SOP), which are not codified anywhere. Consequently, the title of this study suggests, that since there are limited or non-existent substantive provisions on the subject, the only way to get hold of these SOP, is through Case Law. Due to this lack of clarification of the law, the executive police are endowed with absolute discretion in deciding which are those scenarios which evidently require a strip search, soliciting the question whether they are trained and knowledgable enough on this function. Case law has shown that, whenever an officer is not fully aware of what the procedure entails, this led to many abuses. This manifests the increasing need for the police officer to inform the accused about what is the procedure, what is expected from him and what are his rights during a strip search. Hence jurisprudence, although scarce, has served as the best source to purport deficiencies which are analysed during this study, to aliment proposals and possible legislative intervention for better safeguarding of human rights.