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: