Constitution Watch 5/2019 Legality of Searches by Soldiers 28 February 2019 Section 41 of the Defence Act permits soldiers to search for stolen property, but the only persons who may be searched are members of the Defence Forces and the only premises that may be searched are premises belonging to the State and occupied or controlled by the Defence Forces. The Act does not allow the homes of civilians to be searched. The Public Order and Security Act (POSA) Section 37 of POSA states that if the Police require “assistance … for the purpose of suppressing any civil commotion or disturbance in any police district” the Defence Forces may be deployed “to assist the police in the exercise of their functions under this Act in the police district concerned.” The section goes on to say that when the Defence Forces are so deployed: “a member of the Defence Forces who is assisting a police officer in the exercise of his functions under this Act shall have the same powers, functions and authority … as a member of the Police Force.” Police officers have power to search premises including homes, as we shall see, so section 37 gives soldiers the same power. But the power is limited: it can be exercised only while the soldiers are assisting the police in suppressing a “civil commotion or disturbance”. Once the commotion or disturbance has been suppressed the soldiers’ power to search ceases. Section 33 of POSA empowers peace officers – a term that includes police officers and soldiers assisting the police under section 37 – to search people and premises within an area that has been cordoned off by the police to contain “any public disorder or public violence within the area”. However, searches under the section are limited to finding people reasonably suspected of offences relating to the public disorder or violence, or evidence relating to such offences. And in the case of soldiers assisting the police, their powers cease as soon as they have suppressed the commotion or disturbance that caused the police to call for their assistance. Neither the Defence Act nor POSA, therefore, gives soldiers power to search civilian homes for the purpose of general crime control – which is the purpose of the “snap searches” mentioned in the document purportedly emanating from the Army’s Public Relations Directorate. The “snap searches” are to recover stolen army uniforms, not to suppress civil commotions or disturbances. In any event the commotions and disturbances which gave rise to the Army being deployed to assist the police have been suppressed, so soldiers have no legal power at all to search civilian premises. Illegality of “Snap Searches” There is a further point to be made: whatever the legal powers of soldiers may be, “snap searches” of people’s homes are illegal no matter who carries them out. The Criminal Procedure and Evidence Act [CP&E Act] gives law enforcement agents – primarily police officers – power to search premises to seize articles concerned in or reasonably believed to be concerned in a crime, or reasonably believed to be evidence of a crime. The power is strictly limited, however:

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