Every day at metropolitan court houses in Victoria we see the unedifying sight of police and lawyers being searched before they’re permitted inside. (This doesn’t occur at some country venues simply because there aren’t any security guards employed for this at all venues.)
The basis for this is s 3(3) of the Court Security Act 1980, which provides:
(3) Subject to any limitations or restrictions provided by the rules, an authorized officer may require a
person who wishes to enter the court premises, or is on the court premises—
(a) to submit to a frisk search or a search of any thing in the person’s possession;
(b) to submit to a scanning search of his or her person or of any thing in the person’s possession;
(c) to surrender to the authorized officer any item that the authorized officer believes on reasonable grounds is a prohibited item.
The irony of this is that sworn police officers are themselves authorized officers under the Court Security Act, and bound to keep the peace and prevent offences against the law. Lawyers are officers of the Supreme Court (which has supervisory jurisdiction over inferior courts), yet they may not enter those courts where they challenge whim and caprice on behalf of their clients unless first subjected to a search seemingly based on merely following orders.
My memory is that when this came in, the police were not routinely screened, and either the Law Institute or Bar (or perhaps both) pointed out that it didn’t seem right that officers of the court were screened while police were not. So the solution chosen by the folks then responsible for court security was that all should be screened!
I didn’t understand then — and still don’t now — why there is a need to routinely scan police or lawyers. Both are supposed to be trustworthy. Because of their training and office, both are afforded special privileges, powers or responsibilities not available to the general public. Both are subject to continuing scrutiny about their suitability to continue their profession, so criminal offending tends to result in job loss. It wouldn’t be difficult to permit them entry upon presentation of suitable identification. (Of course, if there were reason to search particular individuals, it should occur.)
I’m not concerned just by the symbolic damage done when these central players in the justice system are treated as suspect by the very courts they serve. It’s also the arbitrary nature of the searches and the exercise of powers by authorized officers that rankles. I’ve had to surrender a penlite torch at some Magistrates’ Court venues, and the always at the Supreme Court — presumably in case I shine someone to death. Some require I surrender an umbrella; others don’t. (I can see some sense in this one.) A colleague of mine was once required to open his wallet for inspection: I’m not sure how many lawyers have smuggled contraband into courts in the last decade, let alone in their wallet, but I reckon I’m on fairly safe ground speculating the number is pretty low!
Now of course, some might point out that it’s possible to use a great many items as weapons. For example, a small torch might be used as a kubotan — one of several prohibited weapons in Victoria.
Heck, even pencils and pens can be used as weapons. But common sense usually prevails, and if there’s no indication that a person is going to use an ordinary item as a weapon, the court security guards normally don’t worry about them.
prohibited item means—
(a) a firearm; or
(b) an explosive substance; or
(c) an offensive weapon; or
(d) an item that is likely to affect adversely the security, good order or management of the court premises;
Offensive weapons are defined as:
offensive weapon means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use;
Trying to dispute their view of what is prohibited is futile, because they won’t let you in, relying on section 3(9):
(9) An authorized officer may refuse a person entry to the court premises or remove a person from the court premises if the authorized person believes on reasonable grounds that the person is likely to affect adversely the security, good order or management of the court premises.
And s 2(2) is also relevant, providing:
(2) A reference in this Act to “the security, good order or management of the
court premises” includes—
(a) the safety of all persons who work at or attend the court premises;
(b) the safety and welfare of all persons in custody at the court premises;
(c) the good order or management of legal proceedings or other business conducted at the court premises.
I still reckon that without evidence I intend to use a torch as a weapon, or wreak havoc with the contents of my wallet, there’s no justification for surrender or search of such items. These broad interpretative provisions don’t seem to bestow power on authorised officers to intervene for reasons other than the security, good order or management of the court premises.
So I was surprised and concerned to hear recently of an instance when a lawyer was told by an authorised officer that the lawyer wasn’t allowed to use their iPad while sitting in the body of a court room, and could only use it while at the bar table, and would have to either turn off their iPad or leave until their case was called.
I’ve heard of similar directions occuring at at least one other venue of the Magistrates’ Court, so although this seems isolated, it’s not a one-of occurrence either.
I could understand it if someone — anyone — were playing loud music, games or video. (That might well fall within the scope of the court’s contempt powers anyway, as interfering with the course of justice and interrupting proceedings: Hancock v Lynch  VR 173.) But quietly reading notes, email, calendar appointments, checking legislation? How does that interfere with the security, good order of management of the premises?
Judicial officers on the other hand have absolute authority about security in the court, extending to jurors, witnesses and even counsel and solicitors in a case: R v Smith  2 NSWLR 608 at 616 – 7 per Street CJ; Murray v Flack (1983) 6 A Crim R 394; R v Benbrika (No 12)  VSC 524.
So long as a lawyer’s use of an iPad — or anything else — interfered with the proceedings, the presiding judicial officer could deal with it. But short of that, I can’t see any reasons they would, and more to the point, why authorised officers under the Court Security Act should be concerning themselves with such things. It might be a mild annoyance for some, but I know for me and some other lawyers, it would be equivalent to depriving us of access to our brief, and everything else essential for our practice.
I understand the Magistrates’ Court at least is in the process of making a policy on this, and if it does, it probably won’t be too long before other courts do too. I hope so, and that in the meanwhile, common sense prevails.