Searches at festivals

I'm just curious how it works. Can you be subject to strip searches for simply going to see your favourite artists?

Unless someone challenges this in court, it's not going to change.

Not sure it would rise to the level of a "strip search", that would/could leave them open to "allegations" of some form of assualt.

The top of this page says Legal Discussion, not Moral Discussion.

Who asked you?

I feel like, it's a level of intrusion that wouldn't happen to a crowd going to a leinster rugby match. But, it's fine for young people going to a music event.

People would have bigger quantities of drugs for a festival than going to a match.

Have you ever seen me wear clothes?
Have your ever seen me go into a bathroom and close a door?

Have you ever seen blinds on my windows. If people have things to hide they shouldn't be going to places where they will be checked if they don't want their secrets unveiled.

They need to qualify what a 'search' entails as their T&Cs are quite loose. There is a big difference between a pat down, emptying your pockets, or running over with a wand versus a strip search or intensive/ invasive body search.

People go to concerts to enjoy themselves and should be able to make an educated decision about what they should expect, and if they are willing to accept it. Finding out at the gate/ entry point is a bit late when you have shelled out €€€ for tickets.

I think if you turned up and declined to be searched and they searched you anyway, that would be an assault, despite the terms and conditions of the ticket contract. But that's not what happens; if you decline to be searched they refuse you admission (or, if you're already in, they escort you out) and they refuse to refund your ticket price on the grounds that it is you, not they, who has breached the terms of the contract. So I don't think there's any basis on which you could complain of assault.

If invasive searches (anything other than a pat down for concerts/matches), were commonplace, would it be an abuse of the imbalance of power by the party drawing up the contract? The only way to attend the event would be to allow someone to do what would, in other situations, be deemed sexual assault.

Not being much of a festival-goer myself, I don't know how invasive the invasive searches are, in practice, or how often they are conducted, or on what basis patrons are selected for an invasive search. But let's assume that someone is required to undergo a very invasive search, and they feel so uncomfortable about that that they refuse, and as a result they are excluded from the event, with no refund of the ticket price. Do they have a remedy?

I think they're looking to rely on the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995, which deal with consumer contracts that are not individually negotiated. That definitely covers the terms and conditions of a ticket to attend a commercial performance. Under reg. 6, an "unfair term" in such a contract is not binding on the consumer. So the question is, is the term by which the patron consents to be searched, or must consent if asked, an "unfair term"?

By reg. 3(2), a contract term is unfair . . .

". . . if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer, taking into account the nature of the goods or services for which the contract was concluded . . ."

(There's more, but that's the guts of it.)

There's an indicative list of terms which may be regarded as unfair in Sch 3 to the regulations. It covers terms which do things like:

• limiting the liablity of the service provider in the event of death or injury
• making the agreement binding on the consumer while leaving the supplier free to honour it or not, as he alone wishes
• making a deposit non-refundable when the consumer cancels but providing no compensation when the supplier cancels
• automatically extending a fixed-term contract unless the consumer actively cancels it
• irrevocably binding the consumer to terms with which they had no real opportunity of becoming acquainted before entering into the contract

Etc, etc. Conspicously missing here is anything to do with the substance of the contract itself. If you and I contract for the sale of a clapped-out wreck of a car at a price which vastly exceeds its true value, one of us is probably ripping off the other but there's nothing "unfair" about that as long as we both understand the terms of the deal in advance.

So, the term consenting to searches: it seems to me that there's two ways you could argue that it's not binding.

First, I didn't know about, and couldn't reasonably have found out about, this term before I bought the ticket. That's a question of fact — were the terms and conditions avaialable on the website on which I bought the ticket? And the answer is usually going to be "yes"; for obvious reasons, it's very much in the interests of suppliers to ensure that the contract terms are available, so they usually do. To be blunt, they rely on you not reading the T&Cs much more than they rely on you not being able to read them. So this one is probably not going to succeed very often.

Secondly, the term causes a "significant imbalance in the parties' rights and obligations" — the supplier can strip-search the consumer but the consumer can't strip-search the supplier — and this is "contrary to the requirement of good faith". (Note that an imbalance in rights and obligations isn't unfair unless it's contrary to good faith.) The supplier is going to argue that the search requirement is, or at least may be, onerous, but that it's reasonable in a context where illicit drugs are known to circulate and to be consumed at festivals, etc, and people have suffered injury and even death as a result. Plus, he has a duty of care to festival-goers. Plus, he typically needs various licences and approvals to conduct events, and getting these may involve an assessment by the licensing authorities of what he does or can do to mitigate this risk. All of this, he will argue, means that it's not contrary to good faith for him to include in his contract terms provisions which enable him to seek to control the introduction of drugs into the event venue by requiring patrons to agree to searches as a condition of entry.

I think if there ever is a challenge, a huge amount is going to depend on the actual facts of the case. The questions looked at will not be about what generally happens at festivals, but what happened on this occasion, at this festival, with respect to this particular patron? What kind of search, in fact, were they invited to accept — a bag search, a pat-down, or an intimate cavity search? Was there privacy, or was it to be public? Was the search to be conducted by security staff of the appropriate gender? On what basis was the patron selected for search? Etc, etc.

Look, I see where you're coming from, and it redoubles my view that, in an actual challenge, a huge amount would depend on the exact facts. If you want to run this case, wait until someone is required to undergo a cavity search; don't run it when someone is just patted down, or required to turn out their pockets.

Even then, I think it's a novel argument. You are essentially arguing that a person cannot waive certain constitutional rights. There are inalienable and imprescriptible rights, but the personal rights are not among them, and these searches involve bodily contact of a kind that, in other contexts, people do consent to, sometimes enthusiastically. Is this consent irrelevant in all cases, or just in some?

Consider the implications of this. A contract of prostitution was not, until relatively recently, prohibited in Ireland. A sex worker consents to sexual contact in exchange for money and, in many cases, does so in circumstances of considerable economic stress — they are often under much greater pressure to enter into the transaction than a concert-goer is under to attend a concert. Is the implication of your argument that the sex worker's consent to this contact is irrelevant, and that the transaction is a violation of their constitutional rights for which they can obtain a remedy?

Powers of forcible search are rightly limited by law, but that doesn't mean people can't validly consent or agree to the kind of contact that a search involves even circumstances where no power for forcible search applies. If they couldn't consent to that kind of contact, a lot more than searches would be affected.

The sex worker example is a total red herring, perhaps playing to the audience more than addressing the subject. As has always been the case, consent to sexual encounters is an essential element to the nature of the encounter and whether it is sex or rape. However, in your example, the sex worker is exchanging sex for payment. Sex (or an invasion of bodily integrity, if you want) is central to the "contract". In this thread, the contract is for admission to a concert/festival in exchange for payment. The invasion of bodily integrity in this case is barely ancillary to the central subject-matter of the contract. This is where the argument is really.

Well, what about airports? The guy who fondles your bits at the airport is not an agent of the state and has no statutory powers or authority; they're a privately-employed security guard, just like at a festival. They fondle with your consent — they always ask, and you are within your rights to decline — but if you don't consent you won't be alllowed to fly and there will be no refund of your ticket price. The contract is one for transport, so the "invasion of bodily integrity in this case is barely ancillary to the central subject-matter of the contract". And of course there's a massive imbalance of power between the parties to the contract; much more so than in the festival case. So I think we have a pretty close parallel here.

Arguably the airport case is an even more acute one, since the disadvantage of being impeded in your right to travel is potentially much greater than the disadvantage of being impeded in your desire to attend a music festival. Indeed, the right to travel enjoys some constitutional recognition and protection in a way that the right to attend concerts, I think, does not.

All of which gives rise to two questions:

1. Is the implication of your argument that insisting on invasive searches at airports is constitutionally improper?
2. If so, if we're waiting for the right case to try to establish a new precedent here, would an an airport case maybe a better prospect than a festival case?

I think whoever is defending the action we bring will seek to justify the searches not only by saying "patrons agree to consent to searches when they buy their tickets" but also by saying ". . . and in the context of this contract this is a reasonable thing for us to ask them to agree to". (But note that you don't have to point to the Constitution to argue that they must advance that second argument; the unfair contract terms legislation gets you there. Does the Constitution add anything further to that?)

If we're going to distinguish between the airport case and the festival case, I think we're working our way towards an argument about proportionality — the risks of not searching airline passengers (the murder of hundreds in a fireball) justify a will-agree-to-be-searched condition in a way that the risks of not searching festival patrons (accidental death or injury of a smaller number of people resulting from dodgy tablets) does not. But once you concede there's a risk of death at all — and people have died at festivals from consuming dodgy substances smuggled in — then its hard to argue that requiring patrons to agree to searches if asked is disproportionate. Is there an "acceptable level" of festival deaths? What is that level?

You all do realise the searches are mainly just a security guard patting you down, there's very little detailed in depth searches.

It also depends on the gig, Tom Jones was barely even touched, Fatboy Slim was an actual pat down. They're basically just making sure you're not trying to sneak in naggins cans or any weapons (very rare at any Irish festival).