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Searches by Customs and Excise Officials

Approximately 40,000 travellers each year are stopped and bodily searched at customs points throughout the country under powers conferred by the Customs and Excise Management Act 1979. The nature of the search may take a number of forms, from a pocket search to a full strip or intimate body search. Most people find such searches distressing and humiliating, and frequently ask the question ‘Why me?’

When you may be searched?

A customs officer may ask to search you or anything you have with you if he or she reasonably suspects that you are carrying:

  • Any item which is liable to excise duty or tax which has not been paid; for example, perfume, alcohol, cigarettes, in excess of the duty-free allowance.
  • Any item which is prohibited or restricted from being imported or exported; for example, illegal drugs.
A request to search you does not mean that you are under arrest; it means that you are to be detained whilst a search is carried out. If you are placed under arrest, you must be told.

Length of Detention

How long you may be detained for will depend on the circumstances, but in all circumstances the length of detention must be reasonable and not exceed the time taken for the actual search, which is usually completed in under ten minutes. If you decide to leave before being searched, the customs officer may let you go or you may be arrested. You may also be charged with the offence of obstructing or impeding a customs officer.

What amounts to reasonable suspicion?

A customs officer does not have to be certain that you are carrying an unlawful item in order to justify a search. But there must be some concrete basis for the officer’s suspicion, which relates to you. The mere fact that you have arrived from a particular destination, that you are dressed in a certain way or that you are carrying particular items such as condoms, cigarette papers or petroleum jelly, which could be associated with drug use or drug trafficking, is not in itself sufficient justification. However, a combination of these or other facts, such as suspicious behaviour, an unusual quantity of luggage, unexplained journeys abroad, etc., may give rise to enough reasonable suspicion to justify you being searched.

What must you be told?

The customs officer must tell you what you are suspected of: for example, ‘I have reasonable grounds to suspect that you are carrying illegal drugs.’ Although you should ask why you are suspected of a particular offence, the customs officer does not, in fact, have to tell you.

If you are asked to submit to a rub-down search, you must be told that you have the right to go before a senior customs officer if you do not agree with the search. In the case of a strip or intimate search, you must be told that you have the right to be taken before either a senior customs officer or a magistrate who will then decide whether or not the search should take place.

Going before a Senior Customs Officer or Magistrate

If you decide to exercise your right to go before a senior customs officer or a magistrate, you are entitled to be present to hear the reasons why you should submit to a body search and have the opportunity to say why you disagree. If you wish someone to speak on your behalf, you should say so.

If you decide that you wish to go before a magistrate there may be some delay, but arrangements should be made to ensure that a magistrate is available at all times. It would not be reasonable to expect you to wait more than a couple of hours. If you are told or if it appears that the delay will be any longer than this, you should ask to see the most senior officer in attendance at the airport or port so that you may make an official complaint. If you decide to leave because of the unreasonable delay, you should ensure that the customs officer knows that this is the reason. Otherwise, you do run the risk of being arrested if you decide to leave prior to the search taking place.

After hearing the evidence from both the customs officer requesting the search and yourself, the senior officer or magistrate - depending on whom you request to be taken before - will then direct whether or not the search is to take place and the form that the search may take.

What form may the search take?

The nature and extent of the search depends on what you are suspected of carrying and where you are suspected of concealing it. It may take any of the following forms:
  • A ‘pocket search’ - i.e. removal of all items from pockets.
  • A ‘rub-down’ - i.e. the body is frisked.
  • A search of outer clothing - i.e. removal of outer coat, jacket, hat or gloves.
  • A strip search
  • An intimate search
Customs officers are instructed to ensure that any person searched is treated courteously and considerately. Only a person of the same sex as the person being searched can carry out all ‘rub-down’ and strip searches.

Strip Search

A strip search is essentially a visual search of your body. You will be accompanied by two customs officers of the same sex as yourself to a private room and asked to remove your clothing. Customs officers are under a duty to make every reasonable effort to reduce to the minimum the embarrassment that you may experience. For example:

  • You need not be completely naked at any time. It will usually be possible for the top and bottom halves of the body to be unclothed and reclothed separately. If this is not suggested to you, you should ask that you be allowed to undress in this way.
  • If you are required to be naked, a blanket or other suitable covering should be provided. Again, if this is not offered to you, you should request it.
An Intimate Search

An intimate search consists of the physical examination of one or more of your body orifices - i.e. mouth, nose, ears, anus and genitalia - and may only be done if an officer of at least the rank of senior executive officer authorises it. The reason why it is thought necessary must be explained to you. Only a doctor or a nurse may carry out the examination. No person of the opposite sex who is not a doctor or nurse should be present, nor should anyone whose presence is unnecessary. An intimate search of a juvenile ( an individual under 18 years’ old) or of a person who is mentally ill or mentally handicapped may only take place in the presence of an appropriate adult, who is of the same sex as the person being searched, unless the juvenile requests otherwise and the adult agrees.

If you do not consent to an intimate search, it is most unlikely that the doctor or nurse will agree to carry it out. However, you must remember that you run the risk of being arrested if you do not consent, particularly if the search has been authorised by a magistrate.

It is unclear what type of redress is available if a strip search or intimate search is carried out in a manner that interferes with your rights under Article 8 of the Convention. The House of Lords recently upheld a decision that a woman who had been strip-searched in breach of prison rules should receive no damages. The incident took place before the HRA came into force, so the courts could make a different decision in a similar case in future.

If You are Arrested

A customs officer may arrest you if he or she has reasonable grounds to suspect that you are committing, or have committed, an offence as described above. You must be informed of why you are being arrested. The customs officer has the same powers to search you as described above if you are not under arrest and you have the same rights to be taken before a senior officer or a magistrate. In addition, if you are under arrest, customs officers have the power to request that you submit to an intimate search if they believe you have an article on you that may cause a physical injury to yourself or others whilst in detention.

A customs officer of the same sex as yourself may carry out this search but only where a senior officer has authorised that it is not practicable for a doctor or nurse to do so. If you are under arrest, you may be detained for longer: up to 24 hours, or if it is alleged that you have committed an arrestable offence, up to 36 hours and to a maximum of 96 hours if a magistrate authorises further detention.

During detention you have the right:

  • To inform someone of your arrest.
  • To consult a solicitor in private.
However, exercising these rights may be delayed by 36 hours if you have been arrested for an arrestable offence. You are entitled to a copy of your custody record. An intimate body sample such as urine or blood can only be taken with your consent in writing.

If you wish to make a complaint

If you feel that you have been unreasonably subjected to a body search or have any objections to the way in which it was carried out, you may complain in writing to the Collector - the person in overall charge of the airport or port - at the address of the airport or port at which the search took place. You may also take up the matter with your MP and request that your complaint be referred to the Paymaster General at the Treasury - the minister responsible for Customs and Excise.

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