Search and seizure as part of managing serious and imminent harm

Searches of tamariki or rangatahi and seizure of harmful items

Generally, a search of te tamaiti or rangatahi or any force used to seize harmful or unlawful items in any setting except in a section 364 residence would be an assault under criminal law and actionable under civil law for causing bodily harm (battery).

Searches and seizure of items conducted without lawful authority, and in an unreasonable manner, could also result in proceedings for a breach of the New Zealand Bill of Rights Act 1990 (section 21: Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise).

However, defences to criminal prosecutions and civil proceedings may be available to kaimahi in exceptional circumstances – for example, under section 41 of the Crimes Act 1961 (prevention of suicide or certain offences). If a kaimahi has a genuine belief te tamaiti or rangatahi is about to self-harm or commit an offence that would be likely to cause immediate and serious injury to a person, then that person may be justified in using reasonably necessary physical force in relation to that tamaiti or rangatahi, including to search for (and/or seize) an item that may be used to cause the type of harm described above –for example, an external search (a pat-down search).

If a search needs to be conducted, we must ask for Police assistance if time and circumstances permit. If we believe a search needs to be conducted without delay, at least 2 kaimahi (including 1 senior staff member) must be present when the search is conducted.

If an item is found that kamahi believe could cause death or serious injury (such as a firearm), they may seize it and pass it onto Police, where appropriate.

If Police decide to lay criminal charges following the application of force when searching tamariki or rangatahi or seizing harmful items from them, any applicable Crimes Act defence will have to be advanced in court before a judge or jury.

Policy: Managing serious or imminent harm by tamariki and rangatahi

Searches of property, personal effects or correspondence

The search of property, personal effects or correspondence (in settings other than section 364 residences) without the owner’s authority may result in civil liability, including as a breach of the New Zealand Bill of Rights Act 1990. The situation in a section 364 residence is set out in the residences policy.

Policy: Working with tamariki and rangatahi in residences

In cases of emergency or threats to public safety, searches of places may be excused in criminal and civil law by a defence of necessity, which requires:

• the searcher to form, on reasonable grounds, a belief that death or serious injury is imminent
• the searcher to have no realistic choice but to conduct the search, and
• the search to be a proportionate response to the danger.

Additional option for searches of tamariki or rangatahi in remand homes

Tamariki or rangatahi in remand homes may be moved to a section 364 youth justice residence for a search if:

• we have grounds to change their living arrangement, and
• they are detained under section 238(1)(d).

A move to a youth justice residence is a more feasible option if a residence is close to the remand home. If tamariki or rangatahi refuse to move to a youth justice residence, we must contact Police for assistance.