Legal and safety aspects of searching
I was prompted to write this article after the Questions and Answers article
last week. There were a number of questions relating to searching and finding objects that I thought required a full article on the subject. As usual I went a bit overboard and its going to end up being at least a two part series. Firstly because searching is such a broad area that includes patrons,, employees, bags, vehicles and bodies and secondly because I wanted to go into a bit of detail in each area. Searching is one of those things that’s often associated with and expected of the security industry. Its something that from the outside just seems standard but when you look into it has lots of potential risk associated with it. In this first article I want to look at the purpose of searching as well as some of the safety and legal aspects of it and some of the common myths out there. Next week I will go into the practical aspects of actually conducting a search.
Purpose of searching
Many venues and organisations use searching as an access control tool without actually knowing what purpose it serves or what level is appropriate. The primary purpose of searching is the deterrence of potential risk. If a security team is carrying out regular and robust searching and they aren’t finding anything that is not necessarily a bad thing. It can mean that the searching is acting as an appropriate deterrence to patrons or employees attempting to breach the rules. That is of course assuming that the searching is robust. On a number of occasions I have heard management of venues suggest that they should reduce or even stop searching patrons because they aren’t finding anything. The reason why items aren’t being found is either because the searching is working or the teams aren’t searching properly. Neither one is a good reason to stop searching. Of course venues may accept a certain level of risk and decide that the cost of searching outweighs the risk and that’s fine as long as it is justified. Using searching as a deterrence is its primary purpose and that should be explained quite clearly. If you consider an average search at a nightclub or concert. Probably 90% to 95% of people wont be carrying anything illegal or contraband. So we need to balance the search levels against this risk.
The secondary purpose of searching is obviously detection. Detecting the 5% to 10% of people who are carrying contraband or illegal items. This then feeds into the venues access control policy as it identified patrons who should not be granted access. It is important to note that this is only for a small amount of patrons. For these small amount of patrons or employees there needs to be a safe and legally solid system of work to support the actual search. These are the areas we will look at in this article.
Legality of searching
One of the first questions I always ask groups of new entrants to the industry is “do we have a legal right to search somebody”? The answer of course is no we do not but that is often not apparent to new entrants. Many of these will have been searched going into concerts or clubs or in their part time retail jobs prior to entering the industry. The assumption is that because it happens then there is a legal right. There isn’t but we still do it. How is that?
Quite simply the venue creates a condition of entry for searching. It creates a policy that in order to gain entry to the premises the customer must consent to a search. If the patron refuses to meet this condition then they don’t gain entry to the premises. A key point in creating a condition of entry is consent. The patron must consent to that condition. If they do not consent then we cannot proceed with the search. We can of course refuse access but we cannot proceed with the search in the absence of consent. Another point to remember is that consent can be withdrawn at any point during the search and we must stop if this happens. The final point is that the person must also be in a position to give consent. This might arise in two areas. Firstly if a person is too intoxicated to give consent and secondly if the person is too young to give consent. The first issue is the reason why we should always perform searches behind the main access control point and the second is why teenage discos are a liability nightmare.
The second scenario where we generally see searching is when companies carry them out on employees. This is generally managed from a legal perspective by the employment contract. A search clause is inserted into the employees contract which will state that the company reserves the right to carry out searches on company property. Once again however at the time of the search the employees consent is still requested and must be given. If consent is not given then the search cannot take take and the issue is dealt with as a disciplinary issue as the employee has potentiality breached their contract.
A key point in both of these scenarios is the word ‘reasonable’ . The search conditions and the conduct of the search must be reasonable to both parties. The creation of circumstances where a search is unreasonable might result in the person reasonably refusing to be searched and being correct in doing so. For example if you work in a retail store which sells furniture and home wares and the company requests a pat down body search on a particular day. This may be seen as excessive and unreasonable use of the search clause in the contract. It might also occur in gender specific search queues at events but I will talk about that later on.
Risks of searching
Any time where we put ourselves in close physical contact with another person there is an increased risk. There are safety risks, legal risks, and reputation risks. There are risks to the organisation, to the employee and to the customer. How each venue and organisational should be risk based and proportionate. The risks of searching has to be balanced against the benefit for each type of search carried out. At a minimum a proper risk assessment should be carried out for the search task. Management and staff should be aware of all of the risks and the control measures available, They should also be aware of risks that the venue is willing to accept. Some of the risks of searching include:
Physical assault : The obvious one where a person who knows they have been caught in possession of something illegal attempts to assault the security operatives carrying out the search.
Presence of weapons: The great unknown and one of the primary reasons for carrying out searches. The risks here include security operatives being stuck by sharp objects, the patron producing the weapon during a search and hurting the security operative or other customers. Another risk is the patron reaching for the weapon and a struggle ensues in which either the security operative or patron themselves gets hurt leading to a large medical issue.
Hygiene issues: Meeting and searching large numbers of patrons carries many hygiene risks. Security operatives will search with people hygiene issues, cuts, illnesses and all sorts of other things that we cant possible know about.
False accusations: Physical contact can result in all sorts of potential accusations made against security operatives. Accusations can be made of assault, inappropriate behaviour or even of having put or planted substances on the patron during the search.
The control measures that a venue implements have to be balanced against the ‘real’ level of risk. Having over the top control measures bring its own set of risks in terms of damage to the venues reputation and business. Some of the control measures that a venue should consider include:
Support: Search areas should always be supported by enough staff to safely carry out the search. For me this is a minimum of a male searcher, a female searcher and one support person. The support person can act both as a witness to both searchers and as support in the event of an incident. At festival search teams I would always recommend that in addition to the search team at each search aisle there should also be a floating search team to relive each aisle in turn. The constant searching of large volumes of people without a break can lead to complacency and fatigue very quickly.
CCTV: Search areas in permanent venues should where possible be set up in view of CCTV. This also applies to employee searches in retail or corporate settings. This provides evidence for items found but also provides a deterrence to potential violence.
Personal Protective Equipment: Proper PPE is essential for the search teams. The basic level is of course nitrile gloves but depending on the risk some additional PPE might have to be considered. Example might be Kevlar gloves. These might be necessary in an area where sharps are a real and foreseeable risk but for the many they wont be required.
Gender and age issues
Some of this issues we raised above in the legal areas relate to age and gender. There are common practices in the area of gender specific searches and there is good reason for this. There is a common misconception out there that it is illegal for a man to search a woman or a woman to search a man. To my knowledge there is no such law. That doesn’t mean that we can should do it however. The risk involved of offending genuine patrons, spurious accusations and practicality mean that it should not happen .I have heard the story that for a man to search a woman is illegal because it classed as sexual assault. This is just not true. It may however be a breach of a persons right to dignity and they might refuse to be searched. Like I said above a condition of entry must be reasonable. If a female refuses to be searched by a male or vice versa then I would consider that refusing them entry on that basis would be deemed unreasonable and probably discriminatory. I have heard of events in particular using all male search teams because of a lack of female searchers. This is setting up for trouble. Its not illegal but its also not sensible and could put your security team at an unreasonable level of risk .
Age is real risk area for security teams and venues. This is why I said that it is important that searching takes place behind the initial access control point. This is to ensure firstly that a patron is actually gaining access to premises before wasting time searching them. It is also to ensure that the patron is over 18 before we search them. Once again there is a story out there that searching a child is illegal. There is all sorts of legal and safety safeguards that must be in place in the Children’s First Act(s) but there is no specific line that makes searching illegal. It is however not sensible from all sorts of perspectives. The first and primary one being that a child cannot give legal consent to a search. This is why I believe there is a huge amount of work to be done in educating the organisers of teenage discos. Secondly is the provision of child safeguarding training to persons in contact with children and all of the policies and procedures that this requires.
I think that is far enough for this week. In the follow up article next week I will talk about preparing a search policy as well as the practical task of carrying out a search and what to do when something is found. This week is about giving you all some background on the legal and safety aspects and prompting any technical questions before getting into the detail next week. As always if you have any questions or comments pop them in the comments section of whatever platform you are reading this on and I will reply as soon as I can.