Stop and Search of the Person in Scotland: code of practice for constables

Part 1 The nature of Stop and Search; why it is used

Introduction

1.1 It is a fundamental value of our society that we respect the right of every person to go about their lawful business without unjustified interference from the State. Where the State does interact with any person, that interaction should be governed by a respect by the State for that person, and for that person's freedoms and rights. In all its interactions the State must act with fairness and integrity, and in compliance with the law. Police work is an example of the interaction between the State and the individual, sometimes when the individual is at their most vulnerable. This Code must therefore be read in light of that fundamental value.

1.2 Police work in Scotland is carried out in accordance with fundamental policing principles, agreed by Parliament and exemplified in the Police and Fire Reform (Scotland) Act 2012. These are:

• that the main purpose of policing is to improve the safety and well-being of persons, localities and communities; and
• that the police should be accessible, engage with communities, and promote measures to prevent crime, harm and disorder.

These principles inform all police work and, by extension, this Code.

Primary Purposes of Stop and Search

1.3 Stop and search can be used to achieve a number of different goals, but it has two primary aims in Scotland:-

• to promote public safety; and
• to help prevent and detect crime.

1.4 This Code is made under the Criminal Justice (Scotland) Act 2016. The purpose of this Code is to:

• set out the principles under which stop and search is undertaken;
• ensure consistency in the application of stop and search;
• explain why, when and how stop and search is used;
• set the standard to which constables can be scrutinised and evaluated.

1.5 This Code governs all situations in which constables stop and search a person without first making an arrest, unless the search is expressly excluded, either under this Code, by statute, or by virtue of the search being subject to a separate statutory Code or guidance as to its exercise. The Code also sets out the requirements to be followed by the Police for recording information in relation to all stop and search activity covered by this Code.

1.6 Nothing in this Code alters or otherwise affects any provision in any statute which makes express provision as to the exercise of powers of stop or search, or which specifies any procedural requirements relating to stop or search.

1.7 Nothing in this Code alters or otherwise affects any existing rule of law or legal test, e.g. as to what amounts to reasonable grounds for suspicion or as regards admissibility of evidence.

1.8 The Notes for Guidance are not part of this Code, but are guidance to constables and others about its application and interpretation. The Annexes are part of the Code.

Securing public confidence and promoting community relations

1.9 Searches are more likely to be effective, legitimate and secure public confidence when a constable's reasonable grounds for suspicion are based on a range of objective factors. The overall use of powers of stop and search is more likely to be effective when up-to-date and accurate intelligence or information is communicated to constables and they are well-informed about local crime patterns. Constables must be provided with or otherwise have access to, and acquaint themselves with, such information.

1.10 This Code of Practice must be available to view online and at all police stations.

2. Principles governing Stop and Search

2.1 Recognising that stopping and searching members of the public is a significant intrusion into their personal liberty and privacy, all stop and search activity must be appropriate, as defined by this Code. To be appropriate it must be:

• In accordance with law. That means in accordance with any legal duties imposed on constables, in particular under the Human Rights Act 1998 and the Equality Act 2010, as well as any requirements of the statute(s) under which the search is being conducted;
• Necessary. That means that the search is required to locate a harmful item or confirm the possession of an illegal item ^[1] ; and
• Proportionate, both in the decision to carry out a stop and search and in the way in which a stop and search is conducted. In every case, a constable must balance the rights of the individual against the perceived benefit of the search.

2.2 In addition, any stop and search must be carried out in accordance with the Constable's declaration, and in particular, the following values:

• Fairness - a stop and search must be carried out fairly and impartially, and without unlawful discrimination;
• Integrity - a stop and search will not be carried out in a manner which is abusive, discriminatory, or which amounts to harassment or intimidation; the purpose of the search must be genuinely to find a particular item in the person's possession; it will reflect the principles of good conduct and personal responsibility; and
• Respect - This involves two aspects. Firstly, a constable must ensure that - so far as is reasonably practicable - the person being searched understands why they are being stopped and searched. Secondly, the procedure must be carried out with respect for individual needs - including religious and cultural values and beliefs.

2.3 Accountability - The principle that constables carrying out stop and search are fully accountable for their actions, and that all stop and search activity is accurately recorded, and open to scrutiny.