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

8 Community wellbeing, fairness, integrity, respect and human rights (Q6)

8.1 Part 1 of the Code included reference to the principles which inform all police work in Scotland (as set out in the Police and Fire Reform (Scotland) Act 2012):

• The main purpose of policing is to improve the safety and wellbeing of persons, localities and communities in Scotland; and
• The Police Service, working in collaboration with others where appropriate, should seek to achieve that main purpose by policing in a way which is accessible to, and engaged with, communities, and promotes measures to prevent crime, harm and disorder.

8.2 Part 1 also set out specific principles that should underpin the use of stop and search. It states that all stop and search activity must be 'lawful', 'proportionate', 'justifiable' and 'accountable'. It also stated that stop and search must be carried out in accordance with the Constable's Declaration (also set out in the Police and Fire Reform (Scotland) Act 2012), drawing attention to the following principles and their implications: fairness, integrity, respect and human rights.

8.3 The consultation asked respondents if anything else should be included in the Code to ensure the use of stop and search is aligned with these principles:

Question 6: Is there anything else that should be included within the Code that would help further promote community wellbeing and provide confidence that Stop and Search is being used with due consideration to Fairness, Integrity, Respect and Human Rights?

8.4 The comments made in response to this question are presented here. ^[16]

8.5 Nineteen respondents (12 individuals and 7 organisations) commented on Question 6. One consultation report based on discussion with groups of children and young people also included information relevant to this question. This question prompted a wide range of comments - some were general in nature, while others focused on more specific issues. The main issues covered were: human rights and equalities; the rights of those subject to stop and search; availability and accessibility of the Code; and monitoring of stop and search. Each of these is addressed below.

8.6 It should be noted that many of the comments were relevant to the issues of community wellbeing, public confidence, fairness, integrity, respect and human rights, but respondents did not always explicitly suggest additional things that might be included in the Code.

General comments

8.7 Those responding to the question at a general level provided the following comments:

• The Code should focus on operational stop and search practices, rather than wider issues of community wellbeing.
• The Code should take account of the newly introduced Community Justice (Scotland) Act 2016.
• Confidence in the police stemmed from wider ongoing community engagement and local relationships, not on adherence to specific policies.
• Stop and search practice has to be fair to all members of the community, not just those who are searched; it should allow the police to carry out their work in a way that a member of the public would judge reasonable in the circumstances.

8.8 A few respondents also took the opportunity to comment positively on the Code, and the extent to which it reflected its underpinning principles.

Human rights and equalities

8.9 The importance of ensuring that stop and search practice respected human rights and the needs of different equalities groups was affirmed by respondents. Although there were some detailed comments and suggestions with the overall aim of enhancing, protecting or promoting the rights of communities and individuals (see also Chapter 9), others were positive about the human rights based approach taken in developing the Code.

8.10 Respondents suggested, however, that:

• The Code might make more detailed reference to appropriate legislation, Equality Act 2010, Children (Scotland) Act 1995) and related anti-discrimination legislation: the Disability Discrimination Act 1995; the Sex Discrimination Act 1975; and the Race Relations Act 1976.
• The Code should reflect the fact that stop and search is essentially 'an intrusive police power that interferes with the free movement and 'self-esteem' of the citizen'.
• The requirements in the Code relating to the removal of 'disguises' should be reviewed to take account of items such as wigs that are legitimately used either by individuals as an expression of their gender identity, or by individuals who have suffered hair loss as a result of a medical condition. Individuals in these circumstances should be treated sensitively and allowed to remove items in a private place.
• The requirements in the Code relating to the removal of headgear / outerwear should be reviewed to take account of items worn as an expression of religious beliefs, such as headscarves.

Rights of those subject to stop and search

8.11 There was a clear view among respondents that the Code should include more guidance on providing those stopped with information about their rights, including the right to complain. Respondents made the following points:

• Those subject to stop and search should be informed of their rights, and should be given information about why they had been stopped and searched - this was seen as particularly important for reassuring those who may think they have been stopped because of their ethnicity.
• Any information should be provided in plain English / an appropriate language.
• The police should be required to ensure that people understand the proceedings and their rights, and the guidance provided should take account of those who do not speak fluent English, and those who may become anxious in a stop and search situation.
• Rather than being entitled to a copy of the search report, individuals should be given a copy automatically following a search, or as soon as possible thereafter.
• There should be a complaints procedure and the information given to those subject to stop and search should include how to report bad practice and make a complaint.

8.12 Ensuring that individuals were properly informed of their rights, understood proceedings and knew how to make a complaint were key issues for young people in particular.

Availability and accessibility of the Code

8.13 Respondents stressed the importance of the Code being widely available and easily accessible to the wider community (in police stations, online, etc.). They thought the Code should be written in accessible language, with consideration given to producing easy-read and summary versions, and versions in other community languages.

Monitoring of stop and search

8.14 Respondents stated (or restated) the importance of data collection, analysis and publication in monitoring the use of stop and search, and emphasised the importance of being able to disaggregate data by protected characteristics to ensure that particular groups are not being targeted disproportionately.

Other comments

8.15 There was a small number of additional points made by one or two respondents only. These included the following:

• Stop and search should only be used when there is serious and immediate risk to individuals or communities.
• The police (frontline officers and those in supervisory roles) should be fully trained in the use of stop and search, and should have easy access to local support and advice.
• Additional guidance or clarification was needed on carrying out specific types of searches, including those which do not have to meet the usual tests regarding 'reasonable grounds for suspicion' ( e.g. section 60 searches, searches under the Terrorism Act, searches carried out under warrant, vehicle searches).