Consultation on a Draft Code of Practice for Stop and Search: Analysis of Responses

9 Suggested changes to the draft Code of Practice (Q7 and Q8)

9.1 The final two questions in the consultation sought views from respondents about whether anything was missing from the Code (Question 7), and whether anything should be deleted or changed (Question 8). The comments made in response to both these questions are considered together in this chapter. ^[17]

Question 7: Is there anything missing from the draft Code of Practice that should be added?

Question 8: Is there anything in the draft Code of Practice that should be deleted and / or changed?

9.2 Thirteen respondents made comments at Question 7 and nineteen made comments at Question 8. A small number of respondents (including those representing Police Scotland and the Scottish Police Federation) made multiple and detailed comments about the practical use of the Code in particular situations. Such comments often requested clarification, highlighted perceived difficulties, or suggested changes to the specific wording of certain paragraphs. Other respondents made a smaller number of comments on one or two aspects of the Code or they made more general comments. The suggestions made by respondents were almost all unique - i.e. there was not a great deal of overlap in the comments made. Any 'common themes' that existed were generally based on comments made by no more than two or three respondents.

9.3 The first part of this chapter gives a summary of respondents' suggested changes to each of the sections of the draft Code. This is intended to illustrate the types of comments received, but does not by any means cover all the comments made. Most respondents discussed specific issues in relation to sections 4 to 7 of the Code. More general comments are discussed at the end of this chapter. A complete list of all comments made in response to Questions 7 and 8, collated by Code section, has been provided separately to the Scottish Government. ^[18]

The nature of stop and search; why it is used (paras 1.1 - 1.7)

9.4 Section 1 provided an introduction and set out the purpose of and context for the Code. Few respondents made comments on this section. Those who did mostly focused on paragraph 1.3: 'The Code of Practice must be available online and at all police stations for consultation by constables, police staff, detained persons and members of the public'.

9.5 There were concerns about the proposed requirement for the Code to be made available in paper format to all the groups listed. First, it was suggested that the creation of physical copies would have significant and prohibitive cost implications which should not be borne by Police Scotland. Second, it was also noted that the supply of paper to individuals in police custody ('detained persons') could result in significant damage to property (for example, if the paper is used to obstruct a toilet in a cell), and can be used for the purposes of self-harm. It was also pointed out that if a copy of the Code were made available to a detainee outside of a police cell, an officer would have to be present while the person reads the document. It was thought this could result in excessive time away from normal duties by police officers.

9.6 It was suggested, instead, that detainees should obtain information about the Code from their own solicitors, and that those who are released from police custody could obtain a copy at the public counter upon release, or online.

9.7 There may also be a need to clarify that the use of the phrase 'for consultation by' in paragraph 1.3 simply means that the groups listed should be able to read and refer to the Code, rather than that the police are expected to consult with the specified groups in an ongoing way about its contents - which would require significant additional resources.

Principles governing stop and search (paras 2.1 - 2.2)

9.8 Section 2 of the draft Code set out the principles governing the use of stop and search - that it should be 'lawful', 'proportionate', 'justifiable' and 'accountable'. It also stated that stop and search should be carried out in accordance with the following principles in the Constable's Declaration: 'fairness', 'integrity', 'respect' and 'human rights'.

9.9 Few respondents made comments on this section and, in general, those who did made very specific suggestions. These were intended either to simplify the Code or to make it clearer. For example:

• Justifiable - It was suggested that this should be amended to say 'backed by intelligence and / or reliable information' to make this section consistent with the wording at paragraph 4.9.
• Accountable - There was a view that the word 'verifiable' should be removed, or clarity provided regarding the expectations this could place on Police Scotland. It was unclear how a stop and search should be verified, at what point this should be done, and by whom.
• Integrity - Clarity was requested in relation to the meaning of 'it will reflect the principles of good conduct and personal responsibility'.
• Fairness / Integrity / Human Rights - It was thought that the descriptions given to these three terms could all be incorporated under the heading of 'Lawful' and therefore it was unnecessary to list them separately.
• Respect - It was thought that the description given to this term was encompassed under 'Accountable'. However, it was also noted that there may be many situations in which a person is not able to understand the reasons given by the police for being stopped and searched - for example, due to impairment by drink, drugs, mental illness or distress.
• Human Rights - There was a view that the final sentence defined the utility of stop and search in terms of identifying and removing an item from a person's possession. This implies that searching for items is the only basis for stop and search and presumes that the person stopped is in possession of such an item. It was suggested that this statement should be deleted or expanded to refer to the other objective of stop and search - to confirm or allay suspicions of criminal wrongdoing.
• At paragraph 2.2, it was thought that clarity was needed about who may challenge evidence obtained from a search, for example: ' During court proceedings, evidence obtained from a search…'

Applicability of the Code (paras 3.1 - 3.6)

9.10 This section set out the circumstances in which the Code would be applicable and those in which it would not apply. It also provided a definition of 'statutory stop and search'.

9.11 Comments on this section were very specific and covered a range of issues. For example:

• At paragraph 3.2, respondents suggested adding that the Code also does not apply to:
  • Searches under Schedule 7 of the Terrorism Act 2000, or to searches of persons and vehicles in specified locations authorised under section 47A of the Terrorism Act 2000, both of which are governed by separate codes of practice. However, there was also an alternative view that the Code should include a section on stop and search powers under the Terrorism Act 2000.
  • Searches of premises that do not also involve a search of a person. This additional wording was thought to be needed to clarify circumstances in which officers might search a house under warrant. The point was made that if the search involved the house alone, and did not involve a search of a person within the house, then the Code would not apply. However, if persons within the house were searched (including under the power of warrant), then the Code would apply and the search would be recordable as a statutory stop and search.
• At paragraph 3.5 of the Code (unnumbered in the current draft), it was suggested that if non-statutory stop and search is no longer permitted, there is no need to define a 'statutory stop and search'.
• At paragraph 3.6, it was noted that this paragraph and section 65 of the Criminal Justice (Scotland) Act 2016 provide no option for a person to be searched (for example, to remove a rope, tablets or knife) if that person is intent on suicide or self-harm as there is no statutory power of search applicable in such circumstances.

Basis for carrying out stop and search (paras 4.1 - 4.28)

9.12 Section 4 of the Code provided information about the basis for, and circumstances in which, a stop and search may be carried out. It stated that 'reasonable grounds for suspicion' is the legal test which a police officer must satisfy before they can stop and search a person under statutory provisions, and it set out how 'reasonable grounds for suspicion' may be determined.

9.13 This section of the Code discussed practical issues. In general, comments sought clarification, or they pointed out the practical difficulties of certain statements. Many of the comments on this section focused on the material in paragraphs 4.6, 4.9 to 4.10 and 4.13 to 4.15 as discussed below.

Reasonable grounds for suspicion based on personal factors (para. 4.6)

9.14 Paragraph 4.6, in particular, which states that 'personal factors can never support reasonable grounds for suspicion', received considerable comment from respondents, and these comments generally fell into two categories:

• Those that sought to clarify and / or strengthen the statements made at 4.6; and
• Those that highlighted the practical difficulties of entirely disregarding personal factors in forming grounds for suspicion.

9.15 The first group suggested that:

• The Code might benefit from including a section on 'profiling' which clarifies its distinction from 'suspicion based on information / intelligence' and 'suspicion based on reasonable factors'. In particular, a clear explanation of the difference between intelligence-led policing and racial profiling was seen to be necessary.
• The use of the wording 'for example' in item (a) implies that there may be other aspects of a person's personal appearance, beyond the protected characteristics, which police may not take account of in forming reasonable grounds for suspicion. It was suggested that 'for example' should be removed from this item, as there may be situations in which a person's physical appearance is an important factor in forming grounds for suspicion ( e.g. the person is seen with symptoms of substance misuse; the person has torn or dishevelled clothing; the person is agitated and looking for an escape route).
• A statement should be included that a person's clothing cannot be used alone or in combination with the protected characteristics to provide reasonable grounds for suspicion unless paragraph 4.9 (regarding distinctive style of dress by gangs) applies.
• It should be clarified that 'the fact that a person is known to have a previous conviction' is not a protected characteristic under the Equality Act 2010. This statement should be removed from item (a) and inserted separately at the end of paragraph 4.6 as item (c).

9.16 The second group pointed out the following practical difficulties with the statements made in paragraph 4.6:

• The Code appears to expect that no account be taken of statistical information which indicates that, for example, young males are more likely than older females to be perpetrators of crime.
• Legislation relating to age-restricted items such as fireworks or crossbows might provide a basis to search a person because of their apparent age if an officer has reasonable grounds to suspect they may be in possession of one of these items.
• Any protected characteristic could be used by a witness to describe a suspect. This information may therefore be used to form part of the reasonable grounds for carrying out a search. Furthermore, it is possible in smaller, more remote or less populous communities that a suspect could be identified on the basis of those characteristics alone.
• Offences under section 58 of the Civic Government (Scotland) Act may be predicated on the knowledge that an individual has previous convictions. It was suggested, therefore, that the Code should not require the police to disregard a person's recent or unspent previous convictions.
• Moreover, the requirement to give no consideration to a person's previous convictions appears to contradict paragraph 4.9 which states that 'where there is reliable information or intelligence that members of a group or gang habitually carry knives unlawfully or other weapons or controlled drugs…' It was noted that this type of reliable information or intelligence may be derived from the knowledge of a person's previous convictions.

Reasonable ground for suspicion and searching groups (paras 4.9 - 4.10)

9.17 Regarding paragraphs 4.9 and 4.10, respondents requested greater clarity in relation to what constitutes reasonable grounds for suspicion in searching groups. Different respondents asked for clarification of:

• The definition of a 'gang' and the characteristics that may define or identify a gang
• The term 'members of' (in 4.9) - it was thought that paragraph 4.9 had been included in the Code to allow officers to consider known links or affiliations to a particular group or gang in establishing reasonable grounds to search; however, this requires further clarification so that officers can avoid the discriminatory behaviours set out in paragraph 4.6
• What is meant by 'particular protest groups' (in 4.10) - it was suggested that removal of the word 'particular' would avoid confusion
• Use of word 'damage' (in 4.10(a)) - it was noted that there is no power of search in Scotland for items that can cause damage.

9.18 There were requests that this section of the Code give examples to assist with clarification, and that explicit guidance should be given on not interfering with the rights to assembly and free speech.

Questioning to decide whether to carry out a search (paras 4.13 - 4.15)

9.19 Regarding paragraphs 4.13 to 4.15, there was a view that the Code should explicitly refer to the earlier stage of 'questioning to decide whether to carry out a search' as 'Stop and Account'. The point was made that not every stop would necessarily result in a search and that it would be useful (both for members of the public and for the police) to be able to distinguish between when a stop results in a search and when it does not. However, others had contrasting views on this section of the Code. Different respondents commented that:

• Paragraphs 4.13 and 4.14 may contradict existing legal direction (Cadder vs HM Advocate), which stipulates that a police officer should not question a suspect prior to the suspect being told of their right to consult a solicitor.
• The statutory powers to which this Code pertains are the powers of stop and search, not stop and question. The police cannot compel a person detained under these powers to answer any questions and should inform the person of this fact.
• It was suggested that paragraph 4.15 should include the requirement for a suspect to be 'cautioned at common law'. (This comment would also relate to paragraph 5.9 which discusses steps to be taken prior to a search.)

Other comments on Section 4

9.20 Other comments on section 4 were wide-ranging and highly individual. Some of these other comments included:

• Requests for further clarification on several points, including the definition of 'reasonable grounds for suspicion' in paragraph 4.2, and the use of the word 'likely' in paragraph 4.2(i).
• A request for examples as to what constitutes reasonable grounds for suspicion based on behaviour, time and location (paragraph 4.11).
• A query about the level of detail provided on section 60 of the Criminal Justice Public Order Act (paragraphs 4.16 - 4.24), which was thought to be disproportionate with regard to its current use in Scotland. One respondent made the point that the Code was simply restating existing legislative provisions and it was unclear why this information was being included. However, another suggested that the detail given in this part of the Code appeared to be adding additional considerations to the powers provided by section 60, which are not currently specified within the legislation.
• That paragraphs 4.25 to 4.28 should be considered as a separate section which could be titled: 'Powers to search in the exercise of a power to search premises'.

Conduct of searches (paras 5.1 - 5.11)

9.21 Section 5 of the Code provided detailed information about the way in which searches should be conducted. Some of the comments made about this section were repeated by more than one respondent. These were that:

• The use of the term 'forcible search' in paragraph 5.3 was unclear and possibly inconsistent with current law. The point was made that 'reasonable force' is established in law and understood by police officers, but may not be understood by members of the public. Where force has been used, the question of whether this was reasonable or not would depend on the circumstances.
• Searching or touching of hair or feeling inside clothing should not be carried out in public.
• The use of body camera recording by officers during searches should be considered.

9.22 The remaining comments were all unique and included suggestions about specific wording and punctuation. Some respondents also suggested the removal of different words, phrases, or paragraphs which were either seen to be unnecessary or likely to cause confusion. In addition, clarification was requested in relation to:

• The phrase 'superficial examination' (paragraph 5.6) - further information was requested about what a public search of a person's clothing may involve
• What further information (see paragraph 5.9(e)) would need to be explained to a person before they are searched
• The role of an accompanying person in relation to interpretation or translation during stop and search (paragraph 5.11) which, it was suggested, should be consistent with 'The Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 2014'
• How officers should respond to individuals (including children or vulnerable adults) who are in the company of a person who is about to be stopped and searched, but who are not otherwise involved in the process.

9.23 Concern was also voiced about:

• The possible limitations placed on operational policing by paragraph 5.4: It was suggested that this paragraph should make it clear that the extent of a search must be appropriate to the item being searched for, and that, in some cases, if a prohibited item is discovered, this may provide grounds for a continued search.
• The requirement (in paragraph 5.9(d)) to disclose known intelligence to a person being searched: This could compromise the intelligence process and put the source of the intelligence in jeopardy.
• The requirement that officers give a person being searched details of their station / office to which they are attached: This was seen to potentially compromise security, and it was suggested that the warrant number, or equivalent, would be sufficient for a police officer to be identified in any follow-up communication.
• The practical difficulties of giving people information about police powers to stop and search (paragraph 5.10) when attempting to search large numbers of people - for example, fans entering a football match or during a major public order incident where the availability of officers may be limited.

9.24 There was a suggestion that this section should stipulate that searches be carried out by two officers, and that further information should be included about searches involving (i) intimidated and (ii) hostile individuals.

Recording requirements (paras 6.1 - 6.12)

9.25 Section 6 of the Code set out the requirements to record information following a search. Multiple comments were made in relation to paragraphs 6.6 to 6.12 which specified the requirements for the record of a search, and these will be discussed first before discussing the remaining comments on section 6.

Record of search (paras 6.6 - 6.12)

9.26 Four specific points received multiple comments from respondents:

• Several respondents commented that there should be no requirement to record 'national origin', as well as ethnicity (or perceived ethnicity, if the person searched declines to state their ethnicity). The term 'national origin' was thought to be unclear and likely to cause confusion among officers and individuals being searched. Potentially, having to ask a person about their 'national origin' could also cause offence, and it was noted that the requirement to ask a person two or three questions about their cultural background could prove to be counterproductive. (This comment also applies to paragraph 7.4(b) and Note 13.)
• Concerns were voiced about the IT implications of the data recording requirements for arrestees (paragraph 6.5). It was thought that significant additional custody processing time would be required to record the information specified in the Code. Moreover, this requirement would result in duplication as the custody officer would have to type the full record into the prisoner processing system, and the searching officer would have to enter it into the national stop and search database. It was also pointed out that there were currently different data retention protocols for the prisoner processing database and the national stop and search database. (This point would also have implications for Note 11.)
• One respondent commented that the record of the search should include the station of the constable (which would have been given to the person in any event at the time of the search, cf. paragraph 5.9(b)). However, as noted above, others argued that this information should not be recorded for security reasons, and that the warrant number (or equivalent) (as stated in paragraph 6.8) would be adequate to be able to identify the officer conducting the search.
• There were questions about the requirement to ask an individual for their name, date of birth or address if a search was carried out and nothing was found. One respondent suggested that the officer should inform the person they do not need to provide this information, while another thought that this information should only be required if the person is arrested. For the purposes of monitoring the use of stop and search, it was suggested that only age, gender and ethnicity were needed.

Other comments on section 6

9.27 Different respondents made a variety of suggestions about the wording of certain paragraphs for the purposes of clarification. Some examples are as follows:

• At paragraph 6.1, it was suggested that the current wording implied that a record of the search only had to be made if a person was not arrested. It was suggested that this section should clarify that a record must be made of the search whether or not the person is arrested.
• At paragraph 6.4, change 'an incident of higher priority' to 'an urgent incident'.
• At paragraph 6.9, change 'a separate record is required for each person searched' to 'a separate record for each person must be available should a copy be required'.

9.28 Other suggestions included:

• At paragraph 6.3, a timeframe should be stated (the example given was three months), after which a person may no longer request a copy of the record of the search.
• At paragraph 6.5, a copy of a record of the search should be offered to arrestees and, if requested, should be placed within their property bag and recorded in the property field on the prisoner processing system.

9.29 Respondents also pointed out the practical difficulties with certain statements in section 6. For example:

• Paragraph 6.3: Plain clothes officers may need to undertake searches at any time (on production of a warrant card), but would not ordinarily carry receipt books.
• Paragraph 6.5: The searching and / or arresting officer does not always convey the accused into custody; and the accused may have been released before the arresting officer returns to the station.

Monitoring and supervising stop and search (paras 7.1 - 7.6)

9.30 Section 7 of the draft Code set out the arrangements for monitoring and supervising stop and search powers. Respondents' comments on this section tended to be more general than comments on the previous sections.

9.31 Policing respondents acknowledged the importance of stop and search powers being subject to supervision, monitoring and scrutiny. However, they also identified a number of practical difficulties and resource implications:

• The expectations placed upon supervisors were considered to be onerous. The Code appeared to require that supervisors examine and review all records submitted by individual officers. This was seen to be operationally impracticable, and it was suggested instead that local supervisors should use their experience and discretion to audit individual officers' use of stop and search.
• There was a question about what a supervision intervention would entail - i.e. what 'appropriate action' (discussed in paragraph 7.1) would involve. At the same time, there was also a comment that the behaviours that had discredited stop and search in the first place had been 'supervisor driven'.
• The requirements for recording and publishing as set out in the draft Code, and the ability to identify trends and patterns would be impossible without substantial IT investment.
• It was noted that the Code of Ethics for Policing could not be the basis for considering misconduct proceedings against any police officer.

9.32 Other respondents discussed the need for published data on stop and search to enable effective accountability. There were, in some cases, calls for additional information (or more detailed information) to be published. For example, different respondents suggested that stop and search statistics should:

• Be able to be disaggregated by statutory power used (with less frequently used powers grouped together), personal characteristics, reason for the search and location of the search
• Include details of the outcome in relation to the objective of the power (which would allow an assessment of whether the safeguard of 'reasonable grounds for suspicion' is being adhered to and whether the power is being used appropriately)
• Be published quarterly, and reported both nationally and by policing division and made available to local scrutiny committees and the local authority
• Include the number of authorisations issued under section 60 of the Criminal Justice and Public Order Act 1994
• Include information about individuals who were detained with the intention of a search, but who were not searched following questioning (c.f. paragraph 6.11) as this would show whether certain groups are being stopped without sufficient justification to warrant a search.

Comments on Notes and Annexes

9.33 The draft Code included a section of notes for guidance and four annexes:

• Annex A: List of main statutory powers of stop and search of the person
• Annex B: Example of information to be given to persons subject to stop and search
• Annex C: Establishing gender of persons for the purpose of searching
• Annex D: Conduct of intimate and strip searches.

Comments on Notes

9.34 Comments on the notes were detailed and specific and sought clarification of certain statements, and were mainly offered by policing respondents. Comments included the following:

• Note 3A: The reporting of searches involving children should be linked to the Children and Young People (Scotland) Act 2014, rather than the Children's Hearing (Scotland) Act 2011, and concerns about the wellbeing of a child should be shared with the child's Named Person in the first instance.
• Note 4: This note should reiterate that the person being stopped must be informed that they are not required to respond to any questions.
• Note 9: Regarding requests to remove outer coat, jacket or gloves in public, wording should be consistent with paragraph 5.7.
• Note 10: Clarification was required on which officers would be considered to be 'engaged in the search'. In general, one officer would carry out the physical search of a person, while one or more other officers would be present and observe. It would be impractical to record the identities of all the officers involved in these circumstances.

Comments on Annexes

9.35 No comments were made in relation to Annex A. However, there were several common themes in the comments made in relation to Annexes B to D as follows.

Annex B

9.36 Respondents thought that the information set out in Annex B did not sufficiently detail the rights of persons who are stopped. Some respondents made very specific suggestions about how Annex B should be amended. Some included detailed revisions of the annex in their comments.

9.37 There were suggestions that Annex B should include information about: (i) the requirement and meaning of 'reasonable grounds'; (ii) how the stop and search should be conducted; (iii) the right of a person to request a record of the search and details of how to obtain this; (iv) how people can complain, including details of the complaints procedures or potential outcomes; and (v) why monitoring data is requested and collected.

Annex C

9.38 There was a comment that stop and search guidance in relation to the searching of transgender persons should, where appropriate, be consistent with procedures outlined in the Scottish Prison Service's Gender Identity and Gender Reassignment Policy for people in custody. These procedures were considered to represent best practice in treating transgender people with dignity and respect.

9.39 It was also noted (in relation to paragraphs 11 and 12) that the reference to recording should be removed in line with section 22 of the Gender Recognition Act 2004, which states that this information is protected and should not form part of a search record which could be open to scrutiny.

Annex D

9.40 There were several comments about the references made in Annex D to the role of an Appropriate Adult. First, it was noted that there is currently no Appropriate Adult Service available for children; rather the Appropriate Adult Service is for adults at risk or vulnerable adults. There was a suggestion that Annex D should refer to the role of 'Appropriate Adult' for vulnerable adults and a 'Responsible Person' for children under the age of 18.

9.41 Second, respondents commented that the Appropriate Adult is not necessarily someone who is known to the vulnerable adult, but may not be someone who has been called out for the purpose of aiding communication between the adult and the police. At the same time, they are not normally experts in particular kinds of assisted communication (like a speech and language therapist). There was an agreed view that the Appropriate Adult should not be present during an intimate search or examination unless the vulnerable adult specifically requests this. There was also a comment that there should be no role for Appropriate Adults during fitness for interview assessments.

9.42 Only two other respondents commented in relation to Annex D, as follows:

• There was a query about the extent to which the Code would apply to strip searches, which would ordinarily only be authorised by a custody officer for safety and welfare reasons. There was a separate view that intimate searches should not be permitted under any stop and search power (in line with PACE, Code A, paragraph 3.7).
• It was noted that police officers are not medically trained and cannot diagnose mental disorder or mentally vulnerable persons. It was suggested that the Code should reflect this.

General comments

9.43 As well as their comments on specific sections of the Code of Practice, some respondents also made more general comments.

9.44 One view expressed by several respondents was that the absence of a power to search persons with consent (consensual stop and search) would become a significant barrier to policing, and that statutory stop and search would introduce the use of coercive police powers into situations where a less intrusive action was currently available. Concern was voiced that the Code would appear to prevent a member of the public from fully cooperating with the police in any manner they deem appropriate, which might include consenting voluntarily to a search.

9.45 Other general comments were wide-ranging and made a variety of points. For example:

• It was suggested that searches of animals and related legislation should also be included in the Code.
• There was a call for the general public to be informed about the Code and its contents, and another call for the Code to be reviewed on an ongoing basis. In relation to this, it was suggested that a two-page summary in plain English would be particularly helpful for members of the public.
• There was a view that there should be a flexible approach to stop and search which allowed adaptation to local circumstances ( e.g. rural vs urban) without undermining national consistency.