Continuing on from the earlier article (in Relevan Issue No. 1/08) on section 28A of the Criminal Procedure Code (“CPC”) which dealt with the right of a person to contact a lawyer when detained by the police, I wish to now focus on the provisions governing the right of the police to conduct a body search pursuant to section 20A of the CPC. Similar to section 28A of the CPC, this new section 20A was added into the CPC by the Criminal Code (Amendment) Act 2006.
Section 20A of the CPC states:
Section 20A. Procedure on search of a person.
(1) Any search of a person shall comply with the procedure on body search as specified in the Fourth Schedule of this Code.
(2) Notwithstanding any written law, the provisions of the Fourth Schedule shall apply to any search of a person conducted by any officer of any enforcement agency conferred with the power of arrest or search of a person under any law.
(3) The Minister charged with the responsibility for internal security and public order may amend the Fourth Schedule by order published in the Gazette.
History behind the addition of Section 20A into the CPC
We must recall the events that led to the addition of section 20A of the CPC. In 2005, a video recording was made from a mobile phone of a woman forced to strip in a police station, and who was instructed to repeatedly squat. This video caused so much outrage that the Government established a Royal Commission to investigate, inter alia the video recording and the allegations of police abuse of arrested persons at police stations. The findings of the Royal Commission led to the numerous amendments in the CPC as per the 2007 Amendments Act to the CPC
How does Section 20A operate?
The new section 20A of the CPC refers to the Fourth Schedule of the CPC (“the Fourth Schedule”) which elaborates on the extent of the powers of the police to conduct a body search. To quote the entire Fourth Schedule of the CPC would take up space in Relevan, and so I would urge you to refer the same in the latest version of the CPC.
A body search is not compulsory[i] as per the Fourth Schedule, but can only be carried out if it complies with the following objectives:-
1. To obtain incriminating evidence related to the offence of which the accused person was arrested for.
2. To seize contraband, the proceeds of the crime or other things criminally possessed or used in conjunction with the offence the accused person was arrested for.
3. To discover evidence related to the reason of the arrest or to preserve the said evidence or prevent disposal of the same.
Interestingly, while section 20A of the CPC is silent on this point, section 1 of the Fourth Schedule makes it clear that a body search can only take place after arrest. Therefore, the police cannot conduct a body search on a person who has not been arrested. If one is merely being questioned, no body search can be carried out.
Types of Body Search
There are 4 types of body searches, as set out and defined in sections 2, 4, 7, 10, and 13 of the Fourth Schedule :-
1. Pat down search - outer clothing search which is carried out by quickly running down the hands over the outer garments.
2. Strip search – this search involves removal of a person’s clothing in part or in full.
3. Intimate search – includes the physical examination of a person’s bodily orifices other than the mouth, nose and ears.
4. Intrusive search – as the name suggests, this is an intrusive search to check if the person has hid anything inside that person’s body.
Thus far, I have not come across any reported cases on section 20A of the CPC[ii]. I however foresee challenges by Defence Counsel over body searches as the Fourth Schedule has been drafted in rather general terms. One possible challenge is in a situation where an accused person has been arrested for Crime A, but after a body search, the evidence thereafter leads to the prosecution of Crime B. Can the charge for Crime B hold water?
In the Privy Council decision of Kuruma v Reginam (1955) 1 All ER 236, Lord Goddard did state that; “the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.”
In R v Kelt [1994] 2 All ER 780, the English Court of Appeal faced a situation where the blood sample of an accused person was extracted for a murder inquiry but the said sample then matched blood found at a robbery scene, unrelated to the murder inquiry. Can that blood sample be adduced as evidence in the robbery case? The Court of Appeal did stress the need for the police to act in good faith when dealing with evidence extracted for one alleged crime but used in another criminal charge. The Court held that the blood sample in that case could be used in the robbery trial, notwithstanding the fact that it was meant for another case.
Another interesting case is the English High Court decision of Mustaha Osman v Southwark Crown Court [1999] EWHC Admin 622, decided on 1 July 1999, where it was held that a body search conducted by 2 police officers who failed to properly identify themselves to the persons searched as per the Police & Criminal Evidence Act 1984 (“PACE”), was in breach of section 2(3) of the same Act. The High Court overturned the Crown Court’s decision and released the accused person on that ground alone. Justice Collins in discussing the body search provisions under PACE and the protection it gives to the people in relation to body searches by the police said this:-
“This is, no doubt, because Parliament has recognised that a search of a person is a serious interference with his liberty, and all proper safeguards must be followed. The facts found show that there was no reason why the officers could not have given the necessary information. It is not for the court to disapply the duties set out in the Act, but only to decide whether, in a given set of circumstances, the officers have taken all reasonable steps to do what Parliament has required them to do. I emphasise that we are not concerned with the admissibility of evidence found as a result of a search, but whether the search itself was lawful, so that the officers were acting in the execution of their duty when carrying it out.”
It is hoped that with the new Fourth Schedule, which lays down extensive grounds and rules of conducting a body search, the Courts will continue to safeguard the rights to the people. The quote above, by Justice Collins would be a good guide, not only to the Courts, but to the police as well.
[i] Section 1(1) of the Fourth Schedule states:-
“1. (1) A body search may be conducted on a person arrested only if it complies with any of the following objectives”
[ii] As of 16 December 2008, no reported cases were found in the Malayan Law Journal and the Current Law Journal. However, please feel free to inform the Kuala Lumpur Bar Committee of any cases reported for that said provision, for our onward amendment to this article.
Link : http://klbar.blogspot.com/2009/02/online-version-of-relevan.html
