Subject: Stop and Search
The Police Scotland Operational Toolkit currently gives a practical definition of stop and search as:
- “Any encounter between a Police Officer and member of the public, which results in that individual being searched for the purpose of obtaining evidence.”
The Short Life Working Group on Stop and Search have agreed more detailed definitions of:
- “A consensual search is one conducted by a Police Officer with the consent of the individual being searched.”
- “A legislative search is one conducted by a Police officer where the individual is searched using a specific statutory provision.”
- “A recordable stop and search is defined as any spontaneous stop and search where the officer has used statutory powers or gained the consent of the individual being searched.”
- “A positive stop and search is when an item is recovered where possession of same infers criminality on the part of the person being searched or some other person; or potentially compromises the safety of that person or any other.”
- “A refusal is when an individual does not provide their consent to be searched by an officer. This only relates to a consensual stop and search. “
- “An intervention occurs when items are surrendered, or are removed from a person by a police officer, for the purpose of safeguarding the health and wellbeing of that individual or any other, in circumstances where the stop and search tactic has NOT been utilised and no physical search of a person has taken place.”
There are a number of statutes that give officers the authority to stop and search, the key ones being:
- Drugs: S23(2) Misuse of Drugs Act 1971
- Firearms: S47 Firearms Act 1968
- Stolen Property: S60(1) Civic Government (S) Act 1982
- Public Order: S60 Criminal Justice & Public Order Act 1994
- Sporting Events: S21 Criminal Law (Cons.)(S) Act 1995
- Offensive Weapons: S48(1) Criminal Law (Cons.)(S) Act 1995
- Bladed/Pointed Items: S50 Criminal Law (Cons.)(S) Act 1995
- This Association supports the use of legislative search in Scotland in the traditional deployment methodology of the Scottish Police Service, however wants a public discussion on stop and search to ascertain public opinion on circumstances not currently covered by legislation.
Consensual searches place no statutory requirement on an officer to inform the person subject to search that s/he has a right to refuse it, however the Association believes that these searches can only be carried out with cause and that there is a moral requirement for officers to explain to individuals the justification behind their decision to search.
The Association is also very concerned that there is no facility for informed consent to be given by individuals who are subjected to consensual searches. There is no definition of what ‘consent’ is, which makes it very difficult for an officer to know what they should or should not accept as being a sign of consent. Positive engagement with the community is an essential element of policing by consent and it is imperative that the use of consensual search should be part of an intelligence driven engagement strategy to maintain integrity of process.
Currently, consensual searches are for the most-part based on officer discretion, which can lead to differential treatment, or perceptions of differential treatment, of particular groups within the community. This is especially relevant to youths, with their perceptions of the fairness of police interventions contributing to the legitimacy and compliance that they afford the justice system. This makes it key that stop and search is intelligence driven and carried out as part of an evidence based approach to crime prevention.
- This Association does not agree with consensual searches being undertaken without informed consent and is of the opinion that consensual searches should be only conducted with cause, as part of an intelligence led public engagement strategy.
The inclusion of a 20% positive stop and search target on the Force Performance agenda for 2014/15 has undoubtedly caused some members to focus on positive searches. Whilst the 20% target may be being achieved, it is the seizure of drugs and alcohol that is providing this success and not the seizure of weapons. Given the fact that there is no power available to search for alcohol, this is a worrying statistic which merely underlines the danger of setting such a target. This statistic also partially explains the high number of consensual searches recorded, albeit there is a real issue around data integrity, with vastly differing statistics being presented by the Force Executive.
- This Association does not support any targets whatsoever in relation to search and remain concerned at Key Performance Indicators being applied in this area of activity as we can see no difference between a KPI and a target.
Given that alcohol is the main driver for consensual searches, there may be scope for an amendment to S61 Crime and Punishment (S) Act 1997 so that it provides a power of search. As it currently stands, the Act affords that:
- Where a constable has reasonable grounds for suspecting that a person in a public place:
- Is under the age of 18; and
- Is in possession of alcohol,
He may require that person to surrender that liquor to him, and may dispose of it in such a manner as he considers appropriate; and he may also require that person to supply him with his name and address.
- Where a constable has reasonable grounds for suspecting that a person of or over the age of 18 has alcohol in his possession in a public place and that person:
- Has supplied such alcohol to a person under the age of 18 for consumption in a public place; or
- Intends that the alcohol should be consumed in a public place by a person under the age of 18,
The constable may require the person in possession of the alcohol to surrender it to him, and may dispose of it in such manner as he considers appropriate; and he may also require that person to supply him with his name and address.
- The Association is of the opinion that if Section 61 of the Crime and Punishment (S) Act was to have a power of search added, it would provide clear parameters for officers conducting alcohol searches and protect the rights of individuals being subjected to them.
Using a Police Scotland estimate of 15 minutes per search, including recording by two police officers, non-statutory stop and search activity consumes about 250,000 hours of policing effort every year. This is a significant amount of police officer resource, yet the deterrent effect of stop and search has been difficult to establish. The SPA scrutiny report found no robust evidence to prove a causal relationship between the level of stop and search activity and violent crime or anti-social behaviour. Nor could it establish the extent to which use of the tactic contributes to a reduction in violence.
- This Association wants the Force to adopt a different means of recording stop and search data, to enable information to be gathered that will establish how effective stop and search is in preventing crime, rather than the current emphasis on it being recorded for performance measurement purposes.
- Should there be no evidence that consensual stop and search is effective, the Association will retract its support of this practise.
Date: March 2015
Review Date: May 2015