Fireworks and Pyrotechnics Bill: consultation analysis

Section Two: Pyrotechnics

Tackling misuse of pyrotechnic devices

The second section of the consultation paper considered the misuse of pyrotechnic devices^[19] such as theatrical flares, distress flares and smoke devices that are used for various reasons, the main use being for spectacle, theatrical special effects or distress signal purposes. Concerns have been raised about the perceived misuse of these devices at gatherings and about potential safety risks to members of the public, stewards and police officers.

It is proposed that it should be an offence to carry a pyrotechnic device in a public place without reasonable excuse or lawful authority, and that police powers should be extended to allow a stop and search provision for anyone reasonably suspected of committing the offence.

The offence would not extend to fireworks since the Fireworks Act 2003 enables the police to stop and search if they have reasonable grounds of suspecting a person is in possession of fireworks in contravention of a prohibition imposed by fireworks regulations.

Question 20: Do you have concerns about pyrotechnic devices being misused? Please explain your answer.

Responses at Question 20 by respondent type are set out in Table 12 below.

Table 12

Do you have concerns about pyrotechnic devices being misused?
Respondent type	Yes	No	Unsure	N/A	Total
Organisations	39	6	3	16	64
% of organisations answering	81%	13%	6%		100%
Individuals	1138	314	45	183	1680
% of individuals answering	76%	21%	3%		100%
All respondents	1177	320	48	199	1744
% of all respondents	68%	18%	3%	11%	100%
% of all those answering	76%	21%	3%		100%

A majority of respondents – 76% of those who answered the question – had concerns about pyrotechnic devices being misused, while 21% did not and 3% were unsure.

Organisations were more likely to have concerns than individuals (81% and 76% respectively). The individual respondents who did not have concerns included the 63 individuals who had submitted campaign-style responses.

Some of those commenting noted that concerns they had raised at previous questions in relation to fireworks also applied to pyrotechnics. Others referenced fireworks in a way which suggested that the respondent had interpreted the Section 2 proposals as relating to fireworks, or that they saw fireworks and pyrotechnics as synonymous. These comments are not covered below but are all addressed in the analysis for Section One of the consultation.

Concerns about misuse of pyrotechnic devices

The danger of irresponsible use was the most frequently-raised concern about the misuse of pyrotechnics, with individual, community council, community group and emergency service respondents amongst those highlighting this issue.

Even simple pyrotechnic devices can cause serious injury accidentally or if used incorrectly, or as part of a larger device to purposely cause harm. There should be strict control on the sale and use/misuse of these. (Individual respondent)

It was suggested that any use of pyrotechnic devices in public spaces has the potential for serious injury - to members of the public, police and members of other emergency services. This included reference to: high heat of flares and other pyrotechnics; risk of fire and/or burns; risk of explosion: and the risk of smoke grenades causing respiratory difficulties.

These concerns regarding the potential dangers of misuse of pyrotechnics were compounded by a perception that incidence of use of pyrotechnics had increased in recent years, particularly at sporting events. Community safety partnership, emergency service, local authority and professional or representative body respondents were amongst those taking this view.

There were also a number of references to having personally experienced or seen the misuse use of pyrotechnics causing injury.

Respondents referred primarily to the misuse of pyrotechnics at sporting events and other mass gatherings, and described injuries to those misusing pyrotechnics, others attending the event (including members of the public and emergency services), and residents in the local area. Some individual respondents reported witnessing the misuse of pyrotechnics in their local community, including suggesting that this misuse coincided with football fixtures.

Specific concerns were raised regarding misuse of pyrotechnics in football stadia.

I have seen them thrown at football matches and been only one row away from one thrown into my section of supporters. (Individual respondent)

Some were of the view that use of pyrotechnics is particularly common by football supporters, although reference was also made to use of pyrotechnics at other mass gatherings, such as festivals and concerts. Related concerns included that the use of pyrotechnics can lead to crowd surges, adding to the challenges around the policing of these events. As noted above, some also suggested that the incidence of use of pyrotechnics in these types of settings has increased in recent years.

Animal-related third sector and individual respondents were amongst those highlighting the risks to animal welfare associated with the misuse of pyrotechnics. This included reference to specific risks to pets, local wildlife, and service animals such as police horses and dogs. However, an animal-related third sector respondent noted that they were not aware of any specific risks associated with pyrotechnics which did not also apply to fireworks.

The impact of pyrotechnic misuse on the emergency services was also noted, including by emergency service, local authority and individual respondents. This included reference to the emergency response required for fires and burn victims, and in relation to the policing of football matches and other mass gatherings.

Suggested responses to concerns about misuse of pyrotechnic devices

Some of those raising concerns about the misuse of pyrotechnic devices also suggested potential means of addressing these concerns. For some, this reflected a view that the powers currently available to Police Scotland are too limited for them to prevent the misuse of pyrotechnics. A number of individual respondents suggested that pyrotechnics remain too easy to obtain, particularly for children and young people.

In this context, there were calls for more legislation and/or regulation to strengthen controls on the use of pyrotechnic devices. Emergency service, individual, local authority and professional or representative body respondents were amongst those making this suggestion. Specific suggestions included an outright ban on the use of pyrotechnics by members of the public, with public safety improved by these devices being removed from the streets. There were also calls for legislation to prevent the misuse of pyrotechnics. This was connected to a perception that use of pyrotechnics is increasing and that there is a need to curb that growth.

Those who are not concerned about misuse of pyrotechnic devices

For those who indicated that they are not concerned about misuse of pyrotechnics, the most common reason cited was that misuse remains rare and any issues have been blown out of proportion. Campaign group, community council and a small number of local authority respondents were amongst those making this point. It was also raised by a number of individual respondents, including those submitting campaign-style responses.

Whilst I understand concerns around illegal activity, it is not my view that misuse of pyrotechnics is a major problem in Scotland. It is my view however that this issue is simply being hijacked to allow the police to stop and search football fans without due cause. (Individuals – campaign)

Further comments included that respondents had not themselves seen any misuse of pyrotechnics, that there is a lack of evidence on the scale of any misuse, and that the consultation paper overstates the incidence of misuse of pyrotechnics.

Some were also of the view that current restrictions on access to, and use of, pyrotechnics are sufficient and proportionate to the risk they pose. This included suggestions that the use of stop and search powers for pyrotechnics would be disproportionate and would lead to unfair targeting of football supporters.

Some individual respondents also took the opportunity to comment on the positive aspects of pyrotechnics. This was primarily a view that the use of pyrotechnics adds to the atmosphere and spectacle of football matches and other events, with some suggesting that these devices have been in regular use at football matches around the world and without causing significant issues.

Question 21: Do you agree with the introduction of a new offence for being in possession of a pyrotechnic in a public place without reasonable excuse or lawful authority? Please explain your answer.

Responses at Question 21 by respondent type are set out in Table 13 below.

Table 13

Do you agree with the introduction of a new offence for being in possession of a pyrotechnic in a public place without reasonable excuse or lawful authority?
Respondent type	Yes	No	Unsure	N/A	Total
Organisations	35	4	6	19	64
% of organisations answering	78%	9%	13%		100%
Individuals	1154	310	35	181	1680
% of individuals answering	77%	21%	2%		100%
All respondents	1189	314	41	200	1744
% of all respondents	68%	18%	2%	11%	100%
% of all those answering	77%	20%	3%		100%

A majority of respondents – 77% of those who answered the question – agreed with the introduction of a new offence for being in possession of a pyrotechnic in a public place without reasonable excuse or lawful authority, while 20% did not and 3% were unsure.

Both of the campaign group respondents disagreed, as did the individuals submitting a campaign-style response. Fireworks retailer or events company respondents were divided between those agreeing or disagreeing and professional or representative bodies between those agreeing or unsure.

As at the previous question, some respondents referred to fireworks and may have misunderstood the proposed new offence to apply to fireworks or to both fireworks and pyrotechnics. The analysis below focuses on comments relating specifically to pyrotechnics.

Arguments for a new offence

General reasons given for supporting the proposed new offence included that is a sensible and long overdue measure. The most frequently-given reason was that the new offence has the potential to mitigate the negative impacts of pyrotechnics.

No one really needs to have a flare or smoke bomb in our communities. There is no legitimate reason for them at a sports event, protest, rally or other public gathering other than to cause a nuisance. (Individual respondent)

Respondents referred to the range of risks cited as concerns at Question 20, with a particular focus on the potential for serious or fatal injury to members of the public and animals from the misuse of pyrotechnics, including through their use as weapons. It was suggested that possession of pyrotechnics without reasonable excuse or lawful authority presents an unnecessary risk to public safety, and that a new offence would be a proportionate response to this risk.

As above, there was a view that misuse of pyrotechnics has increased in recent years, and there were calls for tighter regulation and a greater deterrent to limit this increase. A new offence was seen as a key step in reducing incidence of their misuse.

In view of increasing misuse of flares, for example, this appears reasonable. (Individual respondent)

This included a suggestion that the new offence would support a more preventative approach to the control of pyrotechnics, enabling Police Scotland to act before a pyrotechnic device is ignited, and avoiding unnecessary unrest.

Respondents also expressed a view that there is no reason for members of the public to have access to pyrotechnics, and that these devices should be limited to professionals only. This was also given as a reason for not requiring Police Scotland to prove unlawful intent, and that possession alone should be sufficient grounds for the new offence.

Arguments against a new offence

Opposition to the proposed new offence most frequently related to concerns around extending the use of stop and search powers; this was most likely to have been raised by campaign group or individual respondents, including those submitting campaign-style responses. There were specific concerns that extended stop and search powers could be used unfairly by the police to target specific groups, including football supporters. For some respondents, this was based on a view that existing stop and search measures have been misused in some circumstances.

Opposition to a new offence also reflected a view that misuse of pyrotechnics is not sufficiently widespread or serious to warrant additional legislation. This was primarily raised by campaign group, local authority and individual respondents, again including those submitting campaign-style responses.

Because I think these devices enhance the enjoyment and experience at various events and always have done. They have been a feature of concerts for decades and are an enjoyable addition to other events such as football matches too. There have been very few injuries/deaths to warrant such a response, particularly when compared to other hazards. (Individual respondent)

It was suggested that a new offence would not be proportionate to the incidence of pyrotechnic misuse and there is no evidence to suggest that it is required. An associated view was that prosecuting an individual for possession of a pyrotechnic –as opposed to misuse of a pyrotechnic – would be unreasonable. A number of respondents suggested that existing legislation is sufficient, and that existing powers enable the police to deal with any pyrotechnic-related issues. There was also a view that the proposed new offence would have little or no impact on the use of pyrotechnics.

A small number of issues were raised relating to definitions, including:

• Concerns that members of the public may fail to differentiate between fireworks and pyrotechnics and that a clear definition will be required.
• That the specification of 'reasonable excuse' must ensure that those with legitimate reasons for possession of a pyrotechnic, such as when they are in transit to or from a boat, are not affected.

Finally, a professional or representative body noted their understanding that the Scottish Government wants to introduce a definition of a pyrotechnic article that could be included in existing legislation with a power of stop and search. They referenced the Criminal Justice and Public Order Act 1994, and sections 20 and 47 of the Criminal Law (Consolidation) (Scotland) Act 1995. Their concerns included that existing legislation would confer no powers of stop and search for music events, or anything other than a designated sporting event. They went on to seek clarification as to whether there is an intention to create an entirely new statute covering possession of a pyrotechnic in a public place without reasonable excuse or lawful authority.

Question 22: Do you agree that police stop and search powers should be extended to allow the police to stop and search where there is reasonable suspicion that an individual is in possession of a pyrotechnic device in a public place without a reasonable excuse? Please explain your answer.

Responses at Question 22 by respondent type are set out in Table 14 below.

Table 14

Do you agree that police stop and search powers should be extended to allow the police to stop and search where there is reasonable suspicion that an individual is in possession of a pyrotechnic device in a public place without a reasonable excuse?
Respondent type	Yes	No	Unsure	N/A	Total
Organisations	31	5	8	20	64
% of organisations answering	70%	11%	18%		100%
Individuals	1053	357	86	184	1680
% of individuals answering	70%	24%	6%		100%
All respondents	1084	362	94	204	1744
% of all respondents	62%	21%	5%	12%	100%
% of all those answering	70%	24%	6%		100%

A majority of respondents – 70% of those who answered the question – agreed that police stop and search powers should be extended to allow the police to stop and search where there is reasonable suspicion that an individual is in possession of a pyrotechnic device in a public place without a reasonable excuse. Of the remaining respondents, 24% disagreed and 6% were unsure.

As at the previous questions, both of the campaign group respondents disagreed, as did the individuals submitting a campaign-style response.

Arguments for extending stop and search powers

General reasons given for supporting the proposed extension of stop and search powers included that this would be essential to tackling the misuse of pyrotechnics.

The most frequently-given reason was the danger associated with the misuse of pyrotechnics, with respondents often repeating the types of concerns raised at Questions 20 and 21. These included reference to the risk of serious injury or fatalities associated with misuse of pyrotechnics. Respondents often suggested that the potential to avoid serious injury or fatalities is sufficient to justify the use of stop and search. There was also reference to carrying a weapon already being covered by stop and search powers.

Applied to other 'weapons' or substances that could pose danger. Why not pyrotechnics? (Individual respondent)

An emergency service respondent was amongst those suggesting that extending stop and search would enable the police to take a more prevention-focused approach to dealing with the misuse of pyrotechnics. Some respondents, including community council, individual and professional or representative body respondents, suggested that Police Scotland would need stop and search powers if they are to have any impact on reducing the misuse of pyrotechnics.

Arguments against extending stop and search powers

The most frequently-raised argument against extending stop and search powers was that stop and search powers are not justified of themselves, including because they are, or can be, used to target particular groups of people. Objections to the principle of stop and search included reference to infringing civil liberties and not being compatible with a free society.

The police in this country have too many powers that impact on the civil liberties of ordinary people and these powers would swing the balance even further in favour of the police. It is unjust and disproportionate. (Individual respondent)

Individual respondents, including those submitting campaign-style responses, were amongst those raising concerns that any powers would be used to target football supporters in particular. Some expressed a view that the proposals are designed specifically to target football supporters. There was reference to the historic use of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which was described as having eroded trust between the police and football supporters. Some expressed concerns that proposals to extend stop and search powers could also result in a similar loss of trust. In this context, it was suggested that if public trust is to be maintained, supervising officers must ensure that any extension of stop and search powers is used only in relevant circumstances.

Other points raised in objection to the extension of stop and search powers included a view that the police already have sufficient powers to control misuse of pyrotechnics, and that the extension of stop and search powers would be disproportionate. There was also reference to the importance of 'reasonable suspicion' being defined clearly, along with a query as to how the police would establish 'reasonable suspicion' if a pyrotechnic is concealed.

Question 22 continued: Please tell us what you consider would be a reasonable excuse for possessing pyrotechnics in a public place?

Question 22 also asked respondents to identify any reasonable excuses for possession of a pyrotechnic device in a public place. Some noted that they did not support the new offence being introduced, or suggested that attending sporting events or other mass events should be a reasonable excuse for possessing pyrotechnics in a public place.

In contrast, a number of community council and individual respondents suggested that there should be no reasonable excuse for possessing a pyrotechnic device in a public place.

However, most of those commenting referred to one or more circumstances where possession of a pyrotechnic in a public place may be permitted:

• The most frequent suggestion was for licensed events and/or displays organised by licensed professionals and/or other work-related reasons. The latter included reference to displays, rescue services, pest control, film or theatre, and included licensed sellers of pyrotechnics. These respondents also saw a need to permit transport of pyrotechnics to and from licensed events or other approved work-related uses.
• Respondents also cited non-professional uses associated with safety, such as related to sailing or hillwalking. Again it was suggested that legislation should also permit transport to and from the locations where pyrotechnics might reasonably be used.

Question 23: Do you think that police stop and search powers should be wide enough to the extent that it would allow the police to stop and search a vehicle, for example a car, bus, van or tram, where there is reasonable suspicion that there are pyrotechnic devices contained without a reasonable excuse? Please explain your answer.

Responses at Question 23 by respondent type are set out in Table 15 below.

Table 15

Do you think that police stop and search powers should be wide enough to the extent that it would allow the police to stop and search a vehicle, for example a car, bus, van or tram, where there is reasonable suspicion that there are pyrotechnic devices contained without a reasonable excuse?
Respondent type	Yes	No	Unsure	N/A	Total
Organisations	29	4	11	18	64
% of organisations answering	66%	9%	25%		100%
Individuals	968	394	135	183	1680
% of individuals answering	65%	26%	9%		100%
All respondents	997	398	146	203	1744
% of all respondents	57%	23%	8%	11%	100%
% of all those answering	65%	26%	9%		100%

A majority of respondents – 65% of those who answered the question – thought that police stop and search powers should be wide enough to allow the police to stop and search a vehicle where there is reasonable suspicion that there are pyrotechnic devices contained without a reasonable excuse. Of the remaining respondents, 26% did not think so and 9% were unsure.

Both of the campaign group respondents disagreed, as did the individuals submitting a campaign-style response. A relatively large proportion of organisational respondents (25%) were unsure.

Arguments in favour of stop and search powers applying to vehicles

The most frequently-given reasons for supporting stop and search powers applying to vehicles were similar to those at Question 22 in relation to the principle of extending stop and search powers. For example, the role of stop and search powers in mitigating the dangers of misuse of pyrotechnics was the most frequently-given reason for allowing the police to stop and search a vehicle. Individual, animal-related third sector, community council, emergency service and local authority respondents were amongst those making this point.

Further comments included that vehicles could pose a significant safety risk given their potential to carry a volume of pyrotechnics, with including vehicles in stop and search powers thought essential to maintaining public safety.

Respondents also expressed a view that extending stop and search powers to vehicles would be required for the effective enforcement of the offence of possession of a pyrotechnic without reasonable excuse or lawful authority. The large proportion of those attending sporting and other events who travel by car or coach was seen as a key reason for applying stop and search powers to vehicles.

As long as there is reasonable suspicion, this is a necessary extension of police power to enable enforcement of these provisions. (Individual respondent)

An emergency service respondent referred to circumstances where intelligence has identified potential individuals of interest ahead of an event. It was reported that it is not unusual to make intelligence-led stop and searches of vehicles travelling to or from a regulated football match, often with officers expecting to find alcohol or other items but that the possession of pyrotechnics might also be revealed.

An associated point was that the police must be given the powers necessary to follow-up on this kind of intelligence; the connection was also made to possible concerns relating to the importance of ensuring that the use of stop and search is genuinely based on 'reasonable suspicion'.

In terms of the coverage of the offence, an emergency service respondent suggested that trains should be included in the definition of where these new stop and search powers may be used.

There was also a view amongst some individual respondents that stop and search powers should only apply to vehicles, and not (as at Question 22 above) to individuals. Reasons given included that vehicles offer the potential to transport larger quantities of pyrotechnics and thus present the greater risk.

Arguments against stop and search powers applying to vehicles

The most frequently-raised concern was that stop and search powers could be abused to unfairly target specific groups. Some individual respondents were amongst those who expressed a view that existing stop and search powers have been misused to target people from black and minority ethnic communities.

Individuals submitting campaign-style responses were amongst those commenting on football supporters; their fear was that the provision would result in busloads of football supporters being routinely stopped and searched without due cause. They saw this as a regressive step in the policing of football supporters, which would further damage the relationship between fans and police. Also on the theme of the relationship between the public and the police, the importance of 'reasonable suspicion' to justify use of stop and search was raised, and there were concerns that this approach is open to interpretation and abuse.

How would the police possibly have reasonable suspicion that pyrotechnic devices are present inside a bus or car. Based on past and current experience this would result in every supporter's bus being routinely stopped and searched by police. (Individual respondent)

Opposition to stop and search powers applying to vehicles also reflected a wider objection to the principle of stop and search, with some respondents expressing a view that the use of stop and search is a breach of civil liberties. This included a suggestion that extending stop and search powers to vehicles could significantly increase the volume of individuals being affected – and thereby an increase in the impact on civil liberties.

There was also a view, including from a local authority respondent, that the police already have sufficient powers to tackle the misuse of pyrotechnics. This reflected a broader view that the risks of misuse of pyrotechnics have been overstated, and do not warrant the extension of police powers.

Question 24: The Scottish Government recognises that legislation on its own may not end the misuse of pyrotechnic devices. Please tell us if there are other actions you think that the Scottish Government could take to address this issue.

Around 935 respondents commented at Question 24. Many took the opportunity to reiterate their views on key aspects of proposals for the new offence and extension of stop and search powers (as considered at Questions 20 to 23). However, others did suggest some additional or alternative actions for the Scottish Government to consider.

The most frequently-made suggestion was the use of education and public safety messaging to raise awareness about the dangers associated with pyrotechnic use. Emergency service, local authority and professional or representative body respondents were amongst those suggesting this approach. A connected point was that efforts should be made to try and change the culture around the use pyrotechnics at football matches and other events.

There were also calls for additional resourcing to support emergency services and local authorities in delivering public information and education around pyrotechnics, with some referring to existing programmes. It was also suggested that there is potential value in including key stakeholders in the delivery of public information and education. This included reference to football clubs and supporters' organisations, event organisers and bands/musicians, and stewarding organisations.

Other suggestions included:

• Controlling access to pyrotechnics. This was identified as a significant issue, with some suggesting approaches to tighten existing controls, including reference to the current ease of purchase via the internet, and calls for guidelines for sale of pyrotechnics, and stricter control of imports.
• A dedicated phone line for anonymous reporting of misuse of pyrotechnics.
• Investment in metal detector arches for sporting and other large-scale events.
• Football clubs and event organisers being expected to take greater accountability for the misuse of pyrotechnics.
• A pyrotechnic 'amnesty' and/or reward for surrender of devices.

Finally, a campaign group respondent wanted to see the Scottish Government facilitating legal, safe use of pyrotechnics at sporting events. They referenced examples of similar practice elsewhere in Europe, and also suggested that punitive measures are unlikely to eradicate use of pyrotechnics.

Question 25. Please tell us if you have any other comments in relation to pyrotechnics that are not covered by the other questions in this section of the consultation.

Around 210 respondents commented at Question 25. Most comments reiterated issues or concerns already covered in the analysis presented across Questions 20-24. They included that the dangers of pyrotechnics, the perceived need to limit their use to licensed professionals and work-related uses, and concerns regarding fair application of any extended stop and search powers.

However, a small number of additional issues were raised. These included:

• Support for a requirement that noise-suppression mechanisms are included within all pyrotechnics.
• A suggestion that restricting the range of colours in pyrotechnics could limit their appeal for use in football stadia.

Calls for guidance to support any new offence, with issues covered to include charging and sentencing.

Impact assessments

Finally, respondents were asked for their comments on the draft BRIA and draft EQIA (already referenced at Questions 18 and 19) here in the context of pyrotechnics.

Question 26: Do you have any comments about, or evidence relevant to the draft Business and Regulatory Impact Assessment in relation to pyrotechnics?

Around 110 respondents commented at Question 26, with the majority of those comments reiterating points raised at earlier questions. Other general comments included that the draft BRIA appears comprehensive or sensible. A professional or representative body suggested that the draft BRIA contains significant evidence in support of the proposed legislation.

Reflecting a view expressed in relation to fireworks, it was also suggested that while some businesses might be affected adversely, this must be balanced against the potential benefits to the wider community and animals. However, a local authority respondent suggested that the proposed changes will not have any impact on the legitimate sales of pyrotechnics.

Other comments included that the BRIA should:

• Address the environmental impact of pyrotechnics.
• Consider the effects that pyrotechnic misuse has on the emergency services.

Question 27: Do you have any comments about, or evidence relevant to the draft Equality Impact Assessment in relation to pyrotechnics?

Around 90 respondents commented at Question 27, and again most comments raised themes already covered within the analysis. Further comments included that the EQIA is fair or that addressing the misuse of pyrotechnics is a health and safety rather than an equalities issue.

However, an alternative view was that the use of stop and search is very much an equalities issue. Specifically, it was suggested that stop and search powers are used in a discriminatory way against people from ethnic minority communities and young people.

In terms of other issues that should be covered, a professional or representative body respondent noted that the audio and visual traumas for people with disabilities are identified in the EQIA, but that they are also aware that wheelchair users and those with respiratory conditions have had particularly bad experiences with the acrid smoke that can be generated by pyrotechnics.