Exclusive: watchdog warns recording details in central intelligence database could lead to further targeting with no cause
Thousands of people subjected to a strip search in New South Wales have been left with a police record, despite officers not finding anything illegal. The state’s law enforcement watchdog has warned the practice could lead to further targeting without any cause.
Data obtained by the Redfern Legal Centre has revealed that between 2018 and 2020, more than 5,500 people had their details recorded in the central intelligence database used by police following a strip search in cases where nothing illegal was found.
The data shows that 61% of strip searches recorded in the Computerised Operational Policing System, known as Cops, during the period did not discover anything illegal. The Cops system holds more than 40m records accessible by the state’s police, and acts as the force’s central intelligence database.
Sam Lee, a solicitor at the RLC currently involved in a mooted class action lawsuit against police over the use of strip searches, said data obtained by the legal centre showed that thousands of people were being “left with a permanent police record for no reason”.
“The majority of police strip searches find nothing. We now know that more than half the people needlessly subjected to this traumatic procedure are left with a permanent police record for no reason,” she said.
“Once a person’s identity has been logged in the police system, it is there for life.
“The fact that this is frequently occurring in cases where no crime has been committed is not only unjust, it is a complete misuse of power. This can have a tremendously negative impact on a person’s life, especially if that person happens to be Aboriginal and/or Torres Strait Islander.”
Lee also pointed out that current police policy stated that officers were required to tell a person who had been searched that they “are not obliged to provide their personal details” in cases where nothing was found.
The NSW police drug detection dog deployment standard operating procedures state that when a search occurs and no offence is identified, officers must obtain “explicit and informed consent” before collecting the person’s details.
“Where a search has occurred and no offence has been identified, if police request personal details, they are to advise the person that they are not obliged to provide their personal details, and inform the person how those details are to be used: ie making a record of the incident upon Cops,” the document states.
But there is evidence to suggest police are not complying with the policy.
During the NSW law enforcement conduct commission’s (LECC) inquiry into an illegal strip search at the 2018 Splendour in the Grass music festival, a senior officer charged with running the drug dog operation revealed he did not tell officers under his command they should inform people of their right to refuse to give personal details following a search.
Instead, he said he would have “an expectation that [police] would do everything possible, without being too assertive, to acquire their details”.
The practice of recording details of people not found to have committed an offence was criticised by the LECC in its landmark final report into the use of strip search powers by police.
Released in December last year, the report was the result of a series of inquiries, one of which heard evidence officers sometimes used records on the Cops system as at least partial justification for searching people.
The LECC’s final report said the watchdog was “concerned that Cops records which note the reasons for a search as ‘suspected illegal drug possession’ create a negative inference about the person searched”.
It noted the practice “may be used as a justification for a subsequent strip search”, something that was confirmed at the hearings into the 2018 Splendour in the Grass festival strip search.
That inquiry heard evidence from a senior officer involved in the festival’s drug dog detection operation that recording a person’s details “helps, obviously, build for later justifications”.
“I think it’s quite imperative to find out someone’s identity, because yes, while there is what you would say is an invasion on their privacy having their details, it also goes towards aiding us, as police officers, to find out a little bit more about that person,” the officer said at the time.
He added that it “might be used towards assisting with justification [for a search]”.
For that reason, the LECC recommended police “should not record the name” and details of a person following a search “unless a relevant offence has been detected”.
Instead, it said a person’s details should be recorded in handwritten notes “with an appropriate cross reference to these handwritten notes being made in Cops”.
But police have pushed back against the recommendation. The LECC noted that before the release of its report NSW Police asked for it to be removed, saying that officers “must create a record if a power is exercised” and arguing it was “essential” to record the use of search powers.
Police also “emphasised that the person’s name should be recorded ‘irrespective of whether anything is found’” in order to keep records of the search, according to the LECC report.
In a statement, a spokesperson from NSW police told Guardian Australia the force was still “finalising its responses to the recommendations outlined in the 2020 Law Enforcement Conduct Commission report”.
“A complete formal response to the report will be provided to LECC as soon as practicable,” she said.
While supportive of the LECC’s recommendation, the RLC also raised concerns that the proposal may impact on the process of accessing documents after a search for a potential complaint.
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