Proceeds of Crime Act 2002 search powers: revised code of practice consultation

Annex A – Conduct of searches – additional considerations where a child or young person is involved

Introduction

A.1 This Annex is designed to offer constables assistance in recognising and understanding the needs of children and young people in relation to searches. It acknowledges that children and young people have different needs to adults, and that they may require additional support to help them comprehend and participate in the search process.

A.2 It 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.

A.3 In their considerations of the conduct of searches where a child or young person is involved, constables should be cognisant of Article 3 of the United Nations Convention on the Rights of the Child (UNCRC) which states that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

A.4 For the purposes of this Code, children and young people are defined as those being under the age of 18. However, this does not negate the fact that Adult Support and Protection legislation applies to people aged 16 and older who otherwise meet the criteria.

Protection of rights and wellbeing of children and young persons

A.5 In taking a decision to search a child or a young person, a constable must treat the need to safeguard and promote the wellbeing of that child or young person as the primary consideration in line with Getting it right for every child (GIRFEC) and the National Guidance for Child Protection in Scotland 2021 – Updated 2023. 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.

A.6 Constables should ensure that the principles of fairness, integrity and respect apply equally to children and young people, as they do to adults. Wherever practicable the search should take place in the presence of a responsible adult and the child or young person wishes this to happen.

A.7 Constables’ actions should be compatible with the child’s or young person’s human rights. This Code has been designed to comply with the UNCRC. It is also consistent with the Scottish Government’s GIRFEC approach.

A.8 Full realisation of children’s rights requires proactivity on the part of all public authorities, not only services or those working directly with children and young people. Public services play a vital role in delivering for children, young people and their communities and implementing a children’s human rights approach in practice, every day, ensuring that children’s rights are respected, protected and fulfilled

General considerations

A.9 Constables should generally be aware of how the minimum age of criminal responsibility might affect their interactions with children and young people. However, the search powers conferred by sections 289, 303C and 303Z21 of POCA do not depend on the person concerned being suspected of committing an offence in relation to the object of the search. A constable simply requires a reasonable suspicion that the person is carrying seizable cash, a seizable listed asset or cryptoasset-related item. For instance, there may be cases where an adult uses a child’s pram, a child or a young person to conceal seizable cash, a seizable listed asset or a cryptoasset-related item. A constable who has reasonable grounds to suspect that a child or young person is in innocent possession of such cash, listed asset or cryptoasset-related item may search the child or young person (see Guidance Note 8).

A.10 The constable must carry out the search in such a way as to minimise any distress to the child or young person, and where appropriate submit a child concern form via iVPD (interim Vulnerable Persons Database).

A.11 Where a constable believes a search is necessary, they should be aware of the inherent power imbalance that exists between the constable and the child or young person, and how this may affect their interactions with the child or young person. It should not be assumed that, because a child or young person is compliant and/or silent, 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.

A.12 Constables should be aware that, on occasion, children and young people may display behaviour which arouses suspicion, 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 make efforts to determine 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).

A.13 Constables should use age-appropriate terms when engaging with children and young people and avoid the use of technical or legal language unless this is required 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.

A.14 Where it appears to a constable that a child or young person lacks the capacity to understand why a search may be necessary, or what it may entail, the presumption is that the search should not proceed unless appropriate support can be arranged for the child or young person (see Annex B). Consideration should then be given to how best to safeguard that child or young person, where it is believed that they are being used to carry seizable cash, a seizable listed asset or cryptoasset-related item.

A.15 Constables should be aware that specific groups of children and young people may require different approaches to be taken in both consideration of whether to proceed with a search, and the search itself. This applies equally to children and young people with a learning disability or other type of disability (see also Annex B). For example, someone who is autistic may be particularly sensitive to touch and might find a physical search overwhelming. Where a search is considered likely to have a detrimental effect on a child or young person, then alternative safeguarding measures should be considered.

A.16 Constables should be aware that the status of a child or young person, for example, as looked-after or care experienced, with previous or current experience of the criminal justice system, asylum seekers or from an ethnic minority group etc., can be relevant to how such people engage with constables – e.g., 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’s status may require that they need additional support and, if so, consider what that additional support should be. In doing so, constables should be sensitive about whether and how they ask questions about a person’s status, bearing in mind that some children and young people can regard questions about their status as stigmatizing and, also, that their peers may be unaware of their status.

A.17 Children or young people who have experienced abuse may also react strongly to the prospect of being searched, particularly if they (mistakenly) believe that the search is likely to involve a strip search or an intimate search. The extent of the search should be made clear by the constable prior to the search commencing.

A.18 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.

A.19 Where a child or young person is becoming distressed during a search, consideration should be given to stopping or pausing the search until a responsible adult can be present (if this is practicable and the child or young person wishes this to happen).

A.20 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 a parent, a carer, an older sibling or a key worker. The responsible adult’s 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.

A.21 When considering a search of a child or young person, a constable should attempt to minimise any embarrassment they might feel – e.g., by carrying out a search discreetly and away from a peer group. Where practicable, a constable should involve the child or 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.

A.22 As with any other search, two officers are required to be present during any search of a child or young person, the number of persons who witness the search must, so far as possible, be kept to an absolute minimum. Any search of a child or a young person should be carried out by persons of the same sex. All searches should respect the dignity and privacy of the child or young person.

A.23 A constable should explain at each stage of a search of a child or young person what the constable is doing and why, including that the child can request a pause to the search. Where a child requests a brief pause in the search (e.g., to compose themselves), this should be accommodated where practicable. Otherwise, the search should be completed as swiftly as possible.

A.24 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 for which it will be kept and the purposes for which it may be used.

Receipts and complaints

A.25 Following completion of a search, a child or a young person should be supplied with a receipt, which should include age-appropriate information about the search, and details of how to make a complaint if the child or young person feels that they have been treated unfairly.

A.26 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.

Notifying parent(s) or caregiver(s) of search

A.27 Where no seizable cash, or seizable listed asset or a cryptoasset-related item is found, a constable should consider the child’s or young person’s individual needs and circumstances when deciding whether or not to make their parents (or other caregivers) aware of the fact that the child or young person has been searched. For children under 16 years old, the assumption should be that the parents or other caregivers are notified. However, in circumstances where there is a perceived or real risk to the child of notifying the parents or other caregivers the constables need to consider if other child protection measures are necessary in line with the National Guidance for Child Protection in Scotland 2021 – Updated 2023.

A.28 Where a child or young person has expressed a view about whether their parents (or other caregivers) should be informed of a search, and a decision is taken which appears to contradict that view, the constable concerned should clearly explain to the child or young person the reasons for the constable’s decision whilst bearing in mind that the best interests of the child shall be the primary consideration.

Children and young people as witnesses to searches

A.29 As well as being the subject of a search, children and young people may also be witnesses to searches. Where an adult in the company of a child or young person is being searched, constables should be aware of the effect that such a search may have on the child or young person. For younger children, witnessing something that they do not understand, or being parted from their parent/caregiver 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 parent/caregiver is either avoided or kept to an absolute minimum. Constables should also consider whether to submit a child concern form via iVPD in such circumstances.

Promoting positive relations between the police and children and young people

A.30 Carrying out a search in a respectful and age-appropriate manner is likely to minimise any damage it can cause to children’s and young people’s perceptions of the police. Constables should therefore be aware of the potential to build positive relationships with children and young people in the local community by following the steps outlined in this Code.

Additional support needs

A.31 Children and young people may have additional support needs beyond those outlined in this Annex. It is therefore important that constables also familiarize themselves with the content of Annex B and consider how this may apply to children and young people.