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

Part 2 When powers of Stop and Search may be used

3. Applicability of this Code

3.1 This Code applies to:

(a) all stops and searches of a person who is not in police custody carried out pursuant to a statutory power (see Annex A for a non-exhaustive list)

and

(b) searches of a person carried out in accordance with a search warrant issued by a court in Scotland

3.2 This Code does not apply to:

• Searches of persons in custody
• Searches of persons under arrest
• Searches of vehicles and vessels that do not also involve a search of a person ^[2]
• Searches of premises that do not also involve a search of a person
• Searches under Schedule 7 of the Terrorism Act 2000 (which are governed by a separate code)
• Searches of persons and vehicles in specified locations authorised under section 47A of the Terrorism Act 2000 (which are governed by a separate Code)

3.3 Constables must not search a person, even if they are prepared to submit to a search voluntarily, where no statutory power to search is applicable, and they have no warrant to do so.

3.4 Notwithstanding paragraph 3.3, a constable must take all steps necessary to protect life. ^[3]

3.5 A court or tribunal must take this Code of Practice into account when determining any question arising in the proceedings to which the Code is relevant. ^[4]

4. Legal Basis for Carrying out Stop and Search

4.1 Reasonable grounds for suspicion is the legal test that a constable must satisfy before they can stop and detain a person to carry out a search under almost all statutory provisions. The usual requirement is a reasonable suspicion that the person has committed, or is committing, or is about to commit, a particular crime or is in possession of a prohibited article.

4.2 The test must be applied to the particular circumstances in each case and is in two parts:

(i) First, the constable must have formed a genuine suspicion in their own mind that they are likely to find the object for which the search power being exercised allows them to search; and

(ii) Second, the suspicion must be reasonable. This means that there must be an objective basis for that suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts, information and/or intelligence.

Personal factors alone can never support reasonable grounds for suspicion

4.3 The following cannot be used alone as the reason for stopping and searching any individual:

(a) a person's physical appearance with regard to the relevant protected characteristics set out in the Equality Act 2010, section 149, i.e. age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation (see Note 2)

(b) a person's clothing or general appearance

(c) generalisations or stereotypical images that certain categories of people are more likely to be involved in criminal activity.

(d) the fact that a person has any previous convictions.

Reasonable grounds for suspicion based on information and/or intelligence

4.4 However, reasonable suspicion can be supported by information or intelligence that refers to personal factors. For example, intelligence might include a description of a person suspected of carrying an article for which there is a power of search. Such a description may refer to a person's physical appearance. Intelligence relating to a person's previous convictions or pending cases may be relevant in certain circumstances, for example where prior behaviour, in combination with other information or intelligence, provides reasonable grounds of suspicion for a search.

Reasonable grounds for suspicion should normally be linked to accurate and current intelligence or information, relating to articles for which there is a power to stop and search, being carried by individuals in any locality. This would include reports from members of the public or other constables describing:

(a) a person who has been seen carrying such an article, or

(b) crimes committed in relation to which such an article would constitute relevant evidence, for example, stolen property or an offensive weapon or bladed or sharply pointed article used to assault or threaten someone

4.5 Searches based on accurate and current intelligence or information are more likely to be effective. Targeting searches in a particular area at specified crime problems not only increases their effectiveness but also minimises inconvenience to members of the public. It also helps justify the use of powers of stop and search, both to those who are searched and to other members of the public. This does not, however, prevent stop and search powers being exercised in other locations where such powers may be exercised and reasonable suspicion exists.

Reasonable grounds for suspicion and searching groups

4.6 Where there is reliable information or intelligence that members of a group habitually carry knives unlawfully or other weapons or controlled drugs, and dress in a distinctive manner or use other means of identification in order to identify themselves as members of that group, that distinctive style of dress or other means of identification may provide reasonable grounds to stop and search any person believed to be a member of that group.

Reasonable grounds for suspicion based on behaviour, time and location

4.7 Reasonable suspicion may also exist without specific information or intelligence and on the basis of the behaviour of a person. For example, if a constable encounters someone on the street who is obviously trying to hide something, the constable may (depending on the other surrounding circumstances) base such suspicion on the fact that this kind of behaviour is often linked to stolen or prohibited articles being carried. A constable must be able to explain, with reference to specific aspects of the person's behaviour or conduct which they have observed, why they formed that opinion. A hunch or instinct which cannot be explained or justified to an objective observer can never amount to reasonable grounds. A constable should always be alert to the possibility of innocent explanations for apparently suspicious behaviour.

Questioning to decide whether to carry out a search

4.8 Constables have many encounters with members of the public which do not involve detaining people against their will. Constables do not require any statutory power to speak to a member of the public. There is no power for constables to stop or detain a member of the public in order to find grounds for a search. On the other hand, if reasonable grounds for suspicion emerge during such an encounter, a constable may detain the person to search them.

4.9 In some cases a constable will be in possession of information and/or intelligence, the quality or nature of which is such that a constable may reasonably decide that it is unnecessary to ask questions of a member of the public before detaining that person and conducting a search. Such cases will be relatively rare. In every other case, constables should follow the steps set out in paragraphs 4.10 to 4.13.

4.10 A constable who has reasonable grounds for suspicion may detain the person concerned in order to carry out a search. Before detention and carrying out a search, the constable should try to engage with the individual (see Chapter 5), and ask questions about the person's behaviour or presence which gave rise to the constable's suspicion.

4.11 Constables must inform a person being detained that they do not have to provide any information about themselves, or to say anything. However, members of the public have the right to volunteer information with a view to avoiding a search, and constables must afford members of the public an opportunity to provide information if they wish to do so. A constable must ensure that, as far as is reasonably practicable, the person understands what has been explained to them.

4.12 If, as a result of questioning the person before a search, or of other circumstances which come to the attention of the constable, there cease to be reasonable grounds for suspecting that an article of a kind for which there is a power to stop and search is being carried, no search may take place. In the absence of any other lawful power to detain the person, they are free to leave at will, and must be told that (see Note 5).

4.13 If, as a result of questioning the person, or of other circumstances which come to the attention of the constable, a constable's reasonable grounds for suspicion are confirmed, or if reasonable grounds for suspicion emerge during an encounter, the constable may detain the person to search them. Reasonable grounds for suspicion however cannot be provided retrospectively by such questioning during a person's detention, or by refusal to answer any questions asked.

4.14. Before searching, a constable must inform the person that they are being detained for the purpose of a search and take action in accordance with paragraphs 6.9 to 6.10 ("Steps to be taken prior to a search").

Searches of persons not suspected of an offence

4.15 The exercise of some stop and search powers depends on the likelihood that the person searched is in possession of an item for which they may be searched; it does not always depend on the person concerned being suspected of committing an offence in relation to the object of the search. A constable who has reasonable grounds to suspect that a person is in innocent possession of a stolen or prohibited article, controlled drug or other item for which the constable is empowered to search, may stop and search the person even though there would be no power of arrest (see Notes 3 and 4).

4.16 Some search powers are exercised to ensure the care and protection of the person being searched and/or to ensure the safety of others. The exercise of these powers does not depend on the person concerned being suspected of a crime. Under the powers in Section 66 of the Criminal Justice (Scotland) Act 2016 a constable may search a person who is being taken, or is to be taken, from one place to another. The purpose of a search under this section is to ensure that the person is not in possession of any item or substance that could cause harm to them or someone else.

4.17 Section 67 of the Criminal Justice (Scotland) Act 2016 gives constables power to search a person who is seeking to enter or attend, or who has entered or is attending, a relevant event or premises, where the person has consented to the search as a condition of entry imposed by the occupier or organiser. The purpose of a search under this section is to ensure the health, safety or security of people on the premises or at the event.

Searches authorised under section 60 of the Criminal Justice and Public Order Act 1994

4.18 Section 60 of the Criminal Justice and Public Order Act 1994 allows for searches to be carried out in a particular locality, for a specific limited period of time, where an authorising officer believes that incidents involving serious violence may take place or that persons are carrying dangerous instruments or offensive weapons in that locality without good reason. The 1994 Act also lays down various steps which must be taken in relation to use of section 60 powers.

4.19 The powers under section 60 are separate from and additional to the normal stop and search powers which require reasonable grounds to suspect an individual of carrying an offensive weapon (or other article).

4.20 Where an authorising officer authorises any operation under section 60, they must, where practicable, inform relevant members of the community about the authorisation, both before and after any relevant action. The public should be informed of the purpose and outcomes of each section 60 operation.

4.21 Although the powers in section 60 provide that a constable may stop any person or vehicle and make any search they see fit whether or not they have grounds for suspecting that the person or vehicle is carrying weapons or articles of the relevant kind, the selection of persons and vehicles under section 60 to be stopped and, if appropriate, searched should reflect an objective assessment of the nature of the incident or weapon in question and the individuals and vehicles thought likely to be associated with that incident or those weapons. When selecting persons and vehicles to be stopped in response to a specific threat or incident, constables must take care not to discriminate unlawfully against anyone on the grounds of any of the relevant protected characteristics set out in the Equality Act 2010 (see Note 2).

4.22 Section 60(4A) of the Criminal Justice and Public Order Act 1994 also provides a power to constables in uniform to require a person to remove any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing their identity. This power can only be used if an authorisation given under section 60 is in force. Constables must ensure an appropriate balance between powers exercised under s60(4A) and the need to ensure respect for individuals, bearing in mind that some individuals wear items as a legitimate expression of their identity, and not with a view to concealing their identity for a criminal purpose ( e.g. for cultural or religious reasons (and see Note 6)).

Powers to search persons in the exercise of a power to search premises

4.23 The following powers to search premises also authorise the search of a person, not under arrest, who is found on the premises during the course of the search:

(a) section 49B of the Criminal Law (Consolidation) (Scotland) Act 1995 under which a constable may enter school premises and search the premises and any person on those premises for any bladed or pointed article or offensive weapon;

(b) under a warrant issued under section 23(3) of the Misuse of Drugs Act 1971 to search premises for drugs or documents but only if the warrant specifically authorises the search of persons found on the premises;

(c) under a search warrant or order issued under paragraph 1, 3 or 11 of Schedule 5 to the Terrorism Act 2000 to search premises and any person found there for material likely to be of substantial value to a terrorist investigation; and

(d) under a warrant issued under section 11 or section 52 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 to search any premises and any person found there for: evidence of an offence under that Act; illegally taken salmon or trout; or illegal fishing equipment.

4.24 Before the power under section 49B of the Criminal Law (Consolidation) (Scotland) Act 1995 may be exercised, the constable must have reasonable grounds to suspect that an offence under section 49A of that Act (having a bladed or pointed article or offensive weapon on school premises) has been or is being committed.

4.25 A warrant to search premises and persons found therein may be issued under section 23(3) of the Misuse of Drugs Act 1971 if there are reasonable grounds to suspect that controlled drugs or certain documents are in the possession of a person on the premises.

4.26 Searches of a person authorised under a warrant do not require separate grounds in addition to those used to obtain the warrant. However, it is still necessary to ensure that the selection and treatment of those searched under these powers is based upon objective factors connected with the search of the premises, and not upon personal prejudice or relevant protected characteristics (see Note 2).