I have had a query from health today and am looking for some advice.
They were discussing s136/135 assessments that take place. Someone gave an example of police coming to the property with them, along with secure transport, but then at the point of going into the assessment suite it would just be the Dr and AMHPs. Health are wondering in these cases (especially s135) whether the police would conduct a search of the person before they (police) leave? Staff do not feel comfortable searching themselves.
I have responded re s136(c) powers to search, and that this only included outer garments and the mouth, but wondered if there is anything else to consider, and also at what point (s135 in particular) the person ceases to be in the detention of police? We are more frequently seeing secure ambulance transport to hospitals, but in s135 does our involvement (i.e. detention of the person) end as soon as they are in the mode of conveyance?
The point in the 135/136 process when searches may be done
Section 136C is a power for constables only, but it is well established in la that search powers can be delegated to non-constables acting under the constable’s direction or supervision. For example, people can be searched after being detained under arrest in police custody and in practice, civilian detention officers do this on behalf of the custody sergeant. It also used to be referred to in the Code of Practice MHA about staff searching, so I doubt there would be a legal difficulty if that were challenged, but the point about how comfortable staff feel about doing it is a separate point.
You’re correct to say the search under s136C is limited to outer coat, jacket or gloves and the person’s mouth. It does not authorise a strip search, which is possible in police detention at a police station, for example. It should also be remembered the search must be justified - it cannot be done as a matter of routine. The person searching must have reasonably grounds to BELIEVE the person is concealing a relevant item. Grounds to BELIEVE is a higher threshold than grounds to SUSPECT, which is the threshold for stop / search, by contrast.
You can conduct a search of the person detained under s135 or s136 at the point of first detention OR at any subsequent point in the process where the believe of concealment emerges. You can justify searching more than once, if believe emerges and there are further grounds for a new belief.
All of this should be covered off in a multi-agency policy which far too many areas simply don’t have. Under whose authority any secure transport is acting should also be agreed in the contracts or multi-agency policy - in reality, the police are legally the ones empowered to remove from the point of detention under s135(1) or s136(1) to the PoS so secure transport is acting under their legal supervision, regardless of whether the transport was booked for or paid for by the AMHP or NHS. Constables need to be aware of that!
The person is in police detention from the point of detention under s135(1) or s136(1) and until they withdraw after arrival at a place of safety, assuming their withdrawal is agreed to by the PoS staff. This should include consideration of a search but it needs to be borne in mind that it cannot be done carte blanche, as a matter of routine.