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

Part 4 - How Stop and Search powers are to be used, recorded and monitored

6. Conduct of Searches - General

6.1 The use (and misuse) of stop and search powers has a significant impact on public confidence in the police. Every reasonable effort should be made to minimise disruption to a person being searched and to respect their dignity.

6.2 The co-operation of the person to be searched must be sought in every case, even if the person initially objects to the search. The law allows constables to use reasonable force. This means the minimum amount of force necessary to accomplish the lawful objective of the search which the constable is seeking to achieve.

6.3 The length of time for which a person may be detained must be reasonable and kept to a minimum. The thoroughness and extent of a search must depend on the circumstances of the search, including what is suspected of being carried, and by whom. If the suspicion relates to a particular article which is seen to be, or there is good reason to suspect has been, slipped into a person's pocket or bag, then subject to reasonable consideration of the safety of the searching constable, and in the absence of other grounds for suspicion or an opportunity for the article to be moved elsewhere, the search must be confined to that pocket or bag. In the case of a small article which can readily be concealed, such as a drug, and which might be concealed anywhere on the person, a more extensive search may be necessary. Similarly, the recovery of a stolen or prohibited article (such as a knife) from a person's possession may provide reasonable grounds for a constable to suspect that they have additional items in their possession which would warrant a more extensive search.

6.4 The search must be carried out at or near the place where the person was first detained (see Note 7).

6.5 There is no power to require a person to remove any clothing in public other than an outer coat, jacket, gloves, headgear or footwear except under section 60(4A) of the Criminal Justice and Public Order Act 1994 (which empowers a constable to require a person to remove any item worn to conceal identity) (see Notes 7 and 8).

6.6 A search in public of a person's clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent a constable from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. Similarly, subject to the restrictions on the removal of headgear, a person's hair may also be searched in public, having due regard to gender, identity or other relevant religious or cultural differences (see Note 6).

6.7 Where on reasonable grounds it is considered necessary to conduct a more thorough search ( e.g. by requiring a person to take off more than an outer coat, jacket, gloves, headgear or footwear), then this should, where possible, be done out of public view, for example in a police van, unless paragraph 6.8 applies, or a police station if there is one nearby (see Notes 7 and 8). Any search involving the removal of more than an outer coat, jacket, gloves, headgear or footwear, or any other item concealing identity, may only be made by a constable of the same sex as the person searched, and may not be made in the presence of anyone of the opposite sex (see Annex B for exceptions). These searches must be conducted in accordance with Annex C.

6.8 Searches involving exposure of intimate parts of the body must not be conducted as a routine extension of a less thorough search, simply because nothing is found in the course of the initial search. Searches involving exposure of intimate parts of the body may be carried out only at a nearby police station or other nearby location which is out of public view (but not a police vehicle). These searches must be conducted in accordance with Annex C.

Steps to be taken prior to a search

6.9 Before any search of a person detained for the purpose of a search takes place, the constable must take reasonable steps, if not in uniform, to show their warrant card to the person to be searched and - whether or not in uniform - to give that person the following information:

(i) the constable's name and number (except where the constable reasonably believes that giving their name might put them, or another constable, in danger, in which case a warrant or other identification number shall be given) and the name of the police station to which the constable is attached (except where the constable reasonably believes that giving the name of the police station might put them or another constable in danger);

(ii) that they are being detained for the purposes of a search;

(iii) the fact that they do not have to provide any information about themselves, or to say anything;

(iv) the legal search power which is being exercised;

(v) a clear explanation of the object of the search in terms of the article or articles for which there is a power to search; along with

EITHER

(a) in the case of powers requiring reasonable suspicion, the grounds for that suspicion. This means explaining the basis for the suspicion by reference to information and/or intelligence about, or some specific behaviour by, the person concerned;

OR

(b) in the case of the power under section 60 of the Criminal Justice and Public Order Act 1994 (see paragraphs 4.18 to 4.22), the nature of the power, the authorisation, and the fact that it has been given.

and

(vi) unless an exception in paragraph 9.1 applies, that the constable is required to make a record of the search and that they are entitled to a copy of the record of the search in accordance with the requirements set out in this Code. The constable must explain to the person to be searched what those requirements are (see also paragraph 6.12).

6.10 Constables must ensure, so far as is reasonably practicable, that the person understands why they are to be searched and what the search will involve. If the person to be searched does not appear to understand what is being said, or there is any doubt about the person's ability to understand English, the constable must take reasonable steps to bring information regarding the person's rights and any relevant provisions of this Code to their attention. If the person is Deaf or cannot understand English and is accompanied by someone, then the constable should try to establish whether that person is an appropriate person to interpret or otherwise help the constable to give the required information (see also Chapter 8).

Steps to be taken immediately after a search

6.11 The person who has been searched should be given a receipt (see Note 12). The receipt should include the following information:-

• police powers of stop and search
• the right of a person searched to obtain a copy of the record of the search
• the right of a person searched to complain, including how to go about making a complaint

6.12 Constables should explain that a person who is subject to a search to which this Code applies is entitled (unless they have chosen not to give their name, address and date of birth - see paragraph 6.9 (iii)) to obtain a copy of the record of search, provided they ask for it from the police within 6 months of the date on which they were searched.

6.13 A person who is to be, or has been, searched is under no obligation to provide their name, address and date of birth and they should not be asked to provide those details for the purpose of completing the record. Constables should explain that the right to obtain a copy of a record of the search will only apply where the person has provided their name, address and date of birth.

6.14 Where a constable who is conducting a search is called to an urgent incident, exceptionally, it may be wholly impracticable to provide a receipt. In that event, if the person has provided their details, the constable should verbally explain the circumstances and advise them that they can access a copy of the record of search by calling at any police station, unless either there are exceptional circumstances which make it wholly impracticable to make a record of the search or the person searched has not provided their name, address and date of birth.

7. Conduct of searches - additional considerations where a child or young person is involved

7.1 This section of the Code is designed to offer constables assistance in recognising and understanding the needs of children and young people in relation to stop and search. It acknowledges that children and young people have different requirements to adults and that they may require additional support to help them comprehend and participate in the search process.

7.2 This section does not replace any requirements placed on constables elsewhere in the Code. Rather, it provides additional guidance and suggests ways in which constables can tailor their approach towards children and young people.

7.3 For the purposes of this code, children and young people are defined as those being under the age of 18. ^[5] ; ^[6]

7.4 In taking a decision to search a child or a young person, a constable must treat the need to safeguard and promote the well-being of that child or young person as a primary consideration. ^[7] Where a constable believes it to be more harmful to a child or young person to carry out a search than not, then the search should not proceed and other measures to safeguard them should be considered.

7.5 Constables should ensure that the principles of fairness, integrity and respect apply equally to children and young people, as they do to adults.

7.6 Constables actions should be compatible with the child or young person's human rights. This Code has been designed to comply with the UN Convention on the Rights of the Child. ^[8] It is also consistent with the Scottish Government's GIRFEC (Getting It Right for Every Child) approach.

7.7 Constables should have an awareness of how the minimum age of criminal responsibility might affect their interactions with children and young people. For example, when responding to a child or young person's question about the potential outcome of a search, constables should be prepared to provide the appropriate response, based on whether the child or young person will (or will not) be held criminally responsible for their actions.

7.8 As is explained in paragraph 4.15, some stop and search powers do not depend on the person concerned being suspected of committing an offence in relation to the object of the search. A child or a child's pram may also be used to conceal an item on behalf of an adult. A constable who has reasonable grounds to suspect that a child or young 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 child or young person (see Notes 3 and 4). Constables should ensure that such searches are carried out in such a way as to minimise distress to the child or young person.

7.9 Where a constable believes a search is necessary, they should be aware of the inherent power imbalance that exists between a constable and a child or young person and how this may affect their interactions with them. It should not be assumed, for example, that because a child or young person is compliant and/or silent, that they are fully comfortable with a search being carried out. Equally, if a child or young person appears to be acting unreasonably, the root of such behaviour may be in fear or confusion.

7.10 Constables should be aware that, on occasion, children and young people may display behaviour which arouses suspicion of wrong-doing, but which is in fact related to a communication impairment, disability or additional learning support need. This may include gesturing, shouting or avoiding eye contact. When a search of a child or a young person is being considered, a constable should check whether the child or young person considers themselves to have such a disability, and if so, what additional support they might require to participate in a search (bearing in mind that a person with such a disability may have difficulty articulating the nature of that disability or what support they need).

7.11 Constables should use age-appropriate terms when engaging with children and young people, and avoid the use of technical or legal language, unless required to do so by law. Where, for example, a constable is required to state the statutory basis for a search, then they should also be prepared to explain this in terms the child or young person can easily understand. Constables should be aware that not all children of the same age will have the same level of understanding and, where practicable, should allow time for the child or young person to ask questions before a search begins.

7.12 Where it appears to a constable that a child/young person lacks the capacity to understand why a search may be necessary, or what a search may entail, then the presumption is that the search should not proceed. Consideration should then be made of how best to safeguard that child or young person, where it is believed that child or young person continues to be at risk of harm.

7.13 As stated in 7.4, the well-being of the child should be the primary consideration in deciding whether to proceed with a search of a child or a young person. That applies equally to children and young people with a learning disability or other type of disability. For example, someone who is autistic may be particularly sensitive to touch and might find a physical search over-whelming. Where a search is considered likely to have a detrimental effect on a child or a young person, then alternative safeguarding measures should be considered.

7.14 Constables should be aware that the status of a child or young person as looked after or care experienced can be relevant to how such people engage with constables; for example, they may find it more difficult to engage with the police as a result of previous trauma. Constables should be alert to the possibility that a child or young person may be looked after or care experienced and if so, consider what additional support they might require. In doing so, constables should be sensitive about whether and how they ask questions about a person's status, bearing in mind that some looked after and care experienced children and young people can regard questions about their status as stigmatising, and also that their peers may be unaware of their status.

7.15 Children or young people who have experienced abuse may also react strongly to the prospect of being searched, particularly if they believe that the search is likely to involve strip-searching or intimate searching.

7.16 Even where there is no history of abuse, children and young people have reported that being searched by someone who is a stranger to them is both uncomfortable and intrusive.

7.17 Where a child or young person is becoming distressed during a search, consideration should be given to discontinuing the search or pausing it until a responsible adult can be present (where this is practicable and the child or young person wishes this to happen).

7.18 For the purposes of this Code, a "responsible adult" is defined as someone over the age of 18, with responsibility for the child or young person. This might include, for example, a parent or carer, an older sibling or a key worker. Their role is to support the child or young person and help them understand what is happening. Constables should note that a 'responsible adult' is distinct from an 'appropriate adult', a term which has its own meaning. ^[9]

7.19 When considering a search of a child or young person, a constable should attempt to minimise any embarrassment they might feel. This might include, for example, carrying out a search discreetly and away from a peer group. Where practicable, a constable should involve the child/young person in considering where the search should take place. A constable should not assume that places considered suitable for adults will be where a child or a young person would feel most at ease.

7.20 Any search of a child or a young person should be carried out by a person of the same sex (see Annex B). All searches should respect the dignity and privacy of the child or young person.

7.21 A constable should explain at each stage of a search of a child or young person what they are doing and why. Where a child requests a brief pause in the search (for example, to compose themselves) then this should be accommodated, where practicable. The search should be completed as swiftly as possible.

7.22 Where a strip search or intimate search of a child or young person is considered necessary, it must be conducted in accordance with Annex C.

7.23 Where a search takes place and no item is found and the child or young person has provided their name, address and date of birth, a constable should clearly explain how the information will be stored, the length of time it will be kept and the purposes for which it may be used.

7.24 Following completion of a search, a child or a young person should be supplied with a receipt, which should include age appropriate information about stop and search, and details of how to make a complaint if the child or young person feels that they have been treated unfairly.

7.25 Constables should be aware that children and young people can find it difficult to access complaints processes, which are often designed by adults for adults. Where a complaint is received by the Police from or on behalf of a child or young person, consideration should be given to how best to respond in an age appropriate, timely and child-centred manner.

7.26 Where a search has proved to be negative, constables should consider a child or young person's individual needs and circumstances, when deciding whether or not to make their parents (or other care-givers) aware of the fact that they have been stopped and searched.

7.27 Factors to be considered by constables may include: the age of the child; the circumstances in which the stop and search took place; any views expressed by the child or young person and any perceived on-going risk to the child or young person and/or others.

7.28 Where a child or a young person has expressed a view about whether their parents (or other care-giver) should be informed of a stop and search, and a decision is taken which appears to contradict that view, then constables should clearly explain to the child or young person the reasons for their decision.

7.29 Constables should be aware that some children and young people may be placed at increased risk by their parents being notified of a search. This would include, for example, a child or young person living in a household where there is a history of domestic abuse.

7.30 More generally, constables should consider whether informing a child or a young person's parents (or care-giver) might inadvertently suggest that their child has been involved in wrong-doing, when they have not.

7.31 As well as being subject to search, children and young people may also be witnesses to searches. Where an adult in the company of a child is being searched, constables should be aware of the effect such a search may have on them. For younger children, witnessing something they do not understand or being parted from their care-giver for the duration of the search can be particularly upsetting. Care should be taken to ensure that the child is reassured and that any separation from the care-giver is either avoided or kept to an absolute minimum.

7.32 Carrying out stop and search in a respectful and age appropriate manner is likely to minimise the damage it can cause to children and young people's perceptions of the Police. ^[10] Constables should therefore be aware of the potential to build positive relationships with children and young people in their local community by following the steps outlined in this Code.

7.33 Children and young people may have additional support needs beyond those outlined in this chapter. It therefore important that constables also familiarise themselves with the content of Chapter 8 and consider how this may apply to children and young people.

8. Conduct of Searches - additional considerations where a vulnerable adult is involved

8.1 This section of the Code is designed to offer constables assistance in recognising the needs of vulnerable adults in relation to stop and search.

8.2 Vulnerability in this context refers to difficulties a person may have with understanding what is going on or communicating with the police

8.3 In practice, it may not always be obvious that a person has a vulnerability which might impact on the way that stop and search powers should be exercised. Constables must therefore always be aware of the possibility that a person to be searched may be vulnerable and tailor their approach accordingly.

8.4 Vulnerability is most likely to be encountered in situations where a person has mental illness, personality disorder, autism or a learning disability. These conditions are likely to impact on the way that the person is able to understand and communicate and constables must be aware of the need to modify their language, tone of voice and physical behaviours to assist in communicating.

8.5 Vulnerability impacts on whether a constable can search, and how any search should be conducted.

8.6 It is important to identify vulnerability early and constables need to consider the best method of identifying significant communication needs. This may require collaboration and communication between the police, other agencies and the individuals being searched and may involve obtaining support for the vulnerable person.

8.7 Constables must focus on assessing the individual's communication ability and consider whether any support is required to meet that need. That may often be achieved simply by asking the person to explain any difficulties they have. Some people carry documents which explain the issues they have, such as an "Autism Alert card" or a "Keep Safe" card. Or it may be that the person is with friends or family members who can assist or that there are others nearby or contactable who are able to help including any professional who knows the person well. In some circumstances, constables may require to seek suitable support ( e.g. a responsible adult) to assist them in communicating with the vulnerable person. Constables should explore all avenues to ensure that the person is fully aware of what is happening to them. The vulnerable person must be able to understand the nature and potential significance of police actions and questioning, the nature and extent of their own rights, and to be able to exercise their rights in a meaningful way.

8.8 If suitable support is available, constables must balance their wish to search the person with the proportionality of detaining the person until the person who is to provide support can attend, which may take some time. In some circumstances, this may not be justifiable, and constables will need to consider any other options available to them, always having regard to any risk of harm to the person.

8.9 Speaking to constables may be a distressing experience for some vulnerable persons and the mere presence of the police may cause them anxiety and impact on their ability to communicate. Constable should therefore have regard to the following factors to mitigate these issues:

• Some vulnerable people may not understand personal space and may invade others' personal space or may need more personal space themselves.
• Use of the person's name at the start of each sentence will help them know they are being addressed
• Clear, slow and direct instructions will allow the person time to process information - the use of technical or legal language should be avoided
• Some autistic people with sensory issues will not like to be touched
• Extra time may be required for the person to fully process and respond and the person may need more breaks during the search
• Re-wording and repetition of questions in a different way may be helpful
• Language should be kept clear, concise and simple and short sentences used
• Vulnerable persons should have it explained clearly what is happening and, if appropriate, where the person is being taken and why
• Visual supports, if available, should be used to explain what is happening or, if the person can read, to be shown information in writing.
• If possible, physical contact should be avoided but if it is required, a full explanation should be given in advance
• Facial expressions and hand gestures should be kept to a minimum to avoid distracting the person

8.10 Where it appears that the person lacks the capacity to understand why a search may be necessary or to understand what that search will involve, then the presumption is that the search should not proceed. Constables will then need to consider what further action might be necessary to safeguard the person when they may be at risk of harm.

8.11 When conducting a search, constables should attempt to minimise any distress or embarrassment that the person might feel. Where practicable, constables should seek and take account of any views expressed by the person about the process, such as providing them with a choice of where the search can take place or how it might be conducted. The search should always be done discreetly and away from any peer group or other persons whom the person had been with when detained for the search.

8.12 When a strip search or intimate search of a vulnerable person is considered necessary, this must be conducted in accordance with Annex C.

8.13 Vulnerable persons may also be witnesses to searches and constables must be aware of the effect that such a search of another may have on them. Constables may have to explain the process to persons other than the individual being searched in some circumstances.

9. Recording requirements

9.1 When a constable carries out a search in the exercise of any power to which this Code applies, a record must be made of it, electronically or on paper, unless there are exceptional circumstances which make this wholly impracticable ( e.g. in situations involving public disorder). It is unlikely to be practicable in most cases to make a record of a search under section 67 of the Criminal Justice (Scotland) Act 2016 (searches on entry to relevant premises and events, where consent has been given as a condition of entry imposed by the organiser).

9.2 The constable carrying out the search must make the record as soon as

practicable after the search is completed (see Note 9).

9.3 The record of a search must always include the following information:

• Details of the constable conducting the search (including the police station to which they are attached (but see 9.6 below).
• Details of the corroborating constable
• Time of search
• Date of search
• Locus of search (nearest address, private place or street)
• Name of person searched (if provided; there is no requirement for a person to provide their name if nothing is found, but it should be recorded if given)
• Age of person searched (if provided)
• Constable's estimate of the age of the person searched (if not provided and the constable estimates the person's age to be under 18 years)
• Gender of person searched
• Date of Birth of person searched (if provided)
• Address of person searched (if provided)
• Self - defined ethnicity and national origin of person searched (if provided) (see Note 11)
• Whether the search was a standard search ( i.e. a search which is not a strip or an intimate search), a strip search within a police station, a strip search outwith a police station, or an intimate search (as set out in Annex C).
• The legislation used
• The grounds on which the search is based, including the grounds for reasonable suspicion
• The outcome of the stop and search
• Details of any item(s) recovered
• In the case of a search conducted pursuant to the power under section 60 of the Criminal Justice and Public Order Act 1994, the nature of the power, the authorisation and the fact that it has been given (see Note 10).
• In the case of a search of a person pursuant to a warrant the date the search warrant was issued and the fact that the warrant was produced.

Searches which do not result in an arrest

9.4 The person who has been searched must be given - at the time of the search - a receipt which explains how they can obtain a copy of the record (see paragraphs 6.11 to 6.14).

Searches which result in an arrest

9.5 If a person is arrested as a result of a search to which this Code applies, as well as the stop and search being recorded in accordance with this Code, the receipt should be placed within the prisoner's property bag and recorded on the national custody system.

9.6 Nothing in this Code requires the names of constables to be shown on the record of search or any other record required to be made under this Code where a constable reasonably believes that disclosing names might endanger themselves or other constables. In such cases the record should disclose the constable's warrant or other identification number and the police station which they are attached to, except where the constable reasonably believes that giving the name of the police station might put them or other constables in danger.

9.7 A separate record for each person searched must be available should a copy be required.

9.8 The record of the grounds for making a search must, briefly but informatively, explain the reason for suspecting the person concerned, by reference to information and/or intelligence about, or some specific behaviour by, the person concerned.

9.9 Nothing in this Code requires a constable who requests a person in a public place to account for themselves, i.e. their actions, behaviour, presence in an area or possession of anything, to make any record of the encounter or to give the person a receipt where no search is conducted.

10 Monitoring and supervising stop and search

10.1 Any misuse of stop and search powers is likely to be harmful to policing and lead to mistrust of the police by the local community and by the public in general. Supervising officers must proportionately monitor the use of stop and search powers and should consider, in particular, whether there is any evidence that they are being exercised on the basis of stereotyped images or inappropriate generalisations.

10.2 Supervising officers must monitor the use of stop and search powers by individual constables to ensure that they are being applied appropriately and lawfully. They must also ensure that the practice of constables under their supervision in stopping, searching and recording is fully in accordance with this Code. Monitoring may take many forms, including: direct supervision of the exercise of the powers; examining records held on the stop and search database (particularly examining the constable's documented reasonable grounds for suspicion); asking a constable to account for the way in which they conducted and recorded particular searches; or through complaints about a stop and search that a constable has carried out. Training opportunities for individual constables and for the wider police service should be identified as a result of such monitoring, with best practice identified and communicated proactively throughout the service.

10.3 Senior officers with local responsibilities for stop and search and those who have the national policy leads for stop and search must also undertake regular monitoring of the broader use of stop and search powers to ensure that they are used fairly and proportionately and, where necessary, take action at the relevant level. They must also examine whether the records reveal any trends or patterns which give cause for concern and, if so, take appropriate action to address this.

10.4 Supervision and monitoring must be supported by the compilation of comprehensive statistical records of stops and searches at national, divisional and local authority level. Any apparently disproportionate use of the powers by particular constables or groups of constables or in relation to specific sections of the community should be identified and reviewed to determine the reasons and, where appropriate, action should be taken.

10.5 As soon as practicable after the end of each reporting year (ending 31 March), the Chief Constable of a relevant police service ^[11] must publish, as a minimum, information on how many times during the reporting year a stop and search was carried out in Scotland by constables of that service. In addition, so far as practicable, the information is to disclose:

(a) the number of stops and searches carried out under each statutory power;

(b) how many persons were searched on two or more occasions

(c) the age and gender, and the ethnic and national origin, of the persons searched

(d) the proportion of searches that resulted in

(i) something being seized by a constable, including information as to the number of cases in which the item seized was of the type suspected by the constable at the outset of the search (See Note 13)

(ii) a case being reported to the procurator fiscal

(e) the number of authorisations issued under section 60 of the Criminal Justice and Public Order Act 1994

(f) the number of complaints made to a relevant police service about the carrying out of searches (or the manner in which they were carried out) in Scotland by constables of that service.

(g) the number of receipts issued