Code of practice for stop and search in Scotland: six-month review

Appendix 1: Police Scotland Report on Calls for Feedback

Extract from Police Scotland’s Stop and Search Code of Practice Review (June – November 2017)

Police Scotland ‘Call For Feedback’

The ‘Call for Feedback’ allows officers to share their experiences using stop and search, highlight any issues they identify and allows the NSSU to address areas for improvement through discussions with frontline officers or, where required, provide additional guidance or training. In addition the NSSU’s 100% review of stop and search records and a sample of daily ‘incidents of note’ has provided further opportunities for feedback. The ongoing review and call for feedback has generated 71 incidents / pieces of feedback contributing to the review which is explored in more detail below to help demonstrate the impact of the code.

The following table gives an indication of the categories and related quantities of the evidence identified from officers:

Evidence Type	Count
Protecting Life	27
Alcohol	6
Weapons	10
Searching for Evidence	16
Searching at Events	1
The Code of Practice	11
Grand Total	71

Protecting Life

The main theme emerging from the ‘call for feedback’ relates to the use of police powers of search to protect life or in circumstances where a person at that time is vulnerable. In total, 27 pieces of evidence have been gathered in relation to police powers of search for the purpose of protecting life or when it is necessary in the interest of an individual’s welfare at the time.

The searching of a person to protect life is considered lawful in accordance with an officer’s power to intervene under Section 20 & 32 of the Police and Fire (Reform) (Scotland) Act 2012 to protect life, property or improve the safety and wellbeing of persons. Searching people to protect life or due to an individual’s vulnerability has generated the greatest amount of feedback. This is likely down to Section 65 of the Criminal Justice (Scotland) Act 2016, which provides that a search power in express terms by enactment is required for the police search of a person out with custody to be lawful.

In 12 of the 27 incidents officers made arrests of individuals who had committed a crime, who at the same time were vulnerable or became vulnerable after the commission of a crime. Officers have the power to search an arrested person, which might otherwise not have been available solely based on a person’s vulnerability.

The remaining 15 occasions involved conveying vulnerable people from one place to another either voluntarily or under the Mental Health (Care and Treatment) (Scotland) Act 2003 and any search was therefore made lawful under Section 66 of the Criminal Justice (Scotland) Act 2016. The purpose of this type of search is to locate items potentially harmful to the individual, the officers or others.

Alcohol

Officers have fed back 6 pieces of evidence collated on stop and search and alcohol relating to whether there should be a police power to search children and young people for alcohol. Two pieces of evidence relate to policing beaches and train stations in Ayrshire on 18 July 2017 (the circumstances of which should be considered along with the related case study below). The first specifically highlights a 17 year old male consuming alcohol in public being arrested for ‘obstructing’ the police, having refused to surrender the alcohol in his possession. The second from a police constable also on duty that day at the same location who highlights hundreds of youths concealing alcohol in their bags during this time and that many of these youths do this with the knowledge that the police have no power of search. The evidence also highlights that a police power (conditional or otherwise) of search in such circumstances may have helped prevent disorder reaching the level and seriousness it did on the day.

The third piece of evidence compares the circumstances experienced in Ayrshire on 18 July 2017 with other ‘planned’ events such as sporting events and concerts. The salient point being that the circumstances in all cases can be largely similar, but planned events and concerts benefit from the statutory police power to search people in accordance with Section 67 of the Criminal Justice (Scotland) Act 2016 in the interest of public safety.

The remaining 3 scenarios involved police interaction with crowds (between 10 – 100) young people and acknowledge that, although police powers to require alcohol to be surrendered are available to officers along with a conditional power of arrest (upon refusal to surrender the alcohol), it is not always practicable to do so (arrest) when dealing with such large numbers. Officers also expressed concerns when suspecting young people to be in possession of alcohol in bags, but where those young people deny possession, officers are reluctant to proceed to arrest to confirm their suspicion. (This is closely linked to what does and does not constitutes a search and is closely linked to other feedback on whether the Code should define what constitutes a stop and search).

Officers feel the arrest of a young person in such circumstances, even in accordance with Section 61 Crime and Punishment (Scotland) Act 1997, is at odds with current policy on dealing with children and young people. This may go some way to explaining why only 2 young people have been arrested for contravening the requirement to surrender alcohol in accordance with Section 61.

During July 2017 at beaches in South and North Ayrshire, several thousand people, many under the age of 18 travelled to Ayrshire by train with the intention of having a party on the beaches. This was communicated via social media and it was evident many were in possession of and / or drinking alcohol.

Police Scotland used social media to quickly communicate a firm policing stance on public drinking and related legislation with there being a visible policing presence at train stations for arrival of large numbers of people. The officers deployed quickly realised the implications of the volume of people attending and the limitations of legislative powers to seize alcohol from people and the absence of a power of search. Due to the volume of people in possession of alcohol appearing under 18 years of age and levels of intoxication, officers had individuals surrender the alcohol as they alighted from trains and liaised with local off sales premise to limit the sale of alcohol to people arriving in the towns.

In the circumstances taking the personal details of all people involved would have been a risk to safety at the station platform given the significant crowding of the trains. Additionally the time taken to note personal details and provide stop and search receipts, as per the Code, would have created a disproportionate focus on process to the detriment of individual’s personal safety and engagement with those travelling by train.

Whilst the Code acknowledges that there may be exceptional circumstances which make it wholly impracticable to provide a receipt or even make a record of the search, this incident has highlighted some important points in relation to police powers of seizure and search. Spontaneous events such as this are problematic to police with the limited powers available in the circumstances outlined. (Reliant on the surrender of alcohol / no power to search for alcohol).

Since the Code came into effect, planned events are afforded powers of search from section 67 of the Criminal Justice (Scotland) Act 2016 and are not recordable for reasons of the volume of persons involved and attending an event. This criteria mirrors aspects of the spontaneous event of which the police officers are limited in how they can effectively manage large crowds in possession of alcohol. Police Scotland has provided information about the recent events in Ayrshire, to help inform the review of the Code and the stop and search legislation supporting this. In particular it might inform considerations to whether or not a police power to search children and young people for alcohol is needed. The Scottish Government consulted publicly on the latter during 2016 and decided that more evidence will be gathered before reviewing whether there is need for a police power to search young people for alcohol.

Case Study – Ayrshire – July 2017

Weapons

There have been 10 incidents of officer feedback in relation to searching for weapons. Five of these relate to persons in a private place reported to have been in possession of offensive weapons / knives in circumstances amounting to a crime in 2 cases and vulnerability in the remaining 3 cases. Officers have carried out the searches which they believed were justified in the circumstances, however were at odds with the Criminal Law (Consolidation) (Scotland) Act 1995, which extends to searches only in public places. This might also inform any future discussion on considering if the police powers under Section 20 and 32 of the Police and Fire (Reform) (Scotland) Act 2012 are sufficient to justify such police actions.

A further 5 incidents (all post code) relate to officers detaining individuals in public in accordance with the Criminal Law (Consolidation) (Scotland) Act 1995 to search for weapons and the search having extended to related vehicles. This has been raised to highlight that the police search powers under the aforementioned legislation do not expressly and specifically extend to vehicles, (unlike for example the Misuse of Drugs Act 1971) and there is an initial indication that this has had an effect on some cases being brought to trial by the COPFS. Police Scotland are working with COPFS to understand any effect this might be having on cases proceeding to trial.

Searching for Evidence

Crimes aggravated by the use of Weapons

Eleven examples have been provided involving people suspected of committing crimes involving the use of unlawful weapons and suspected being in possession of those weapons. In all of these cases officers used a power of arrest or detention in accordance with Section 14 of the Criminal Procedure (Scotland) Act 1995 which has afforded the power of search.

Vandalism

Two examples have been provided where officers (prior to the introduction of the Code) have used non-statutory search in relation to crimes of vandalism. On one occasion this led to the detection of 8 individuals involved in vandalism offences.

Fire-raising

Three examples in connection with crimes of fire-raising have been identified. One occurred pre-Code, involved a non-statutory search and allowed for the recovery of accelerant from a person. The other 2 (post-Code) resulted in officers suspecting a male to be in possession of evidence in connection with crimes of fire-raising without a specific associated search power. On one occasion a suspect was later detained using other police powers (Section 14 Criminal Procedure (Scotland) Act 1995) and on the other occasion the person’s involved made verbal admissions to officers.

Searching at Events

Police Scotland’s Football Coordination Unit for Scotland ( FoCUS) have provided feedback for consideration on the use of search powers at designated sporting and other events. In particular it relates to the possession of pyrotechnics, flares and fireworks. Specifically, in relation to designated sporting events defined in the Criminal Law Consolidation (Scotland) Act 1995, the search powers provided for under Section 21 allows officers to search an individual they suspect is committing / has committed a related offence (in this case possession of a flare / firework) whilst attempting to enter the relevant area of a designated sports ground. This raises a question about police search powers in situations where a person (over 18 years) is in possession of a flare / firework, and it appears they will be attending the related sporting event, but have not yet ‘attempted to enter’.

For example, one incident highlights an officer’s encounter with 5 adult males travelling in a vehicle through Glasgow city centre making their way to a football match at Hampden Park (6 miles away) and at that time in possession of a bag containing flares / fireworks. Their intention appears clear, but they had yet to attempt to enter the sporting event. The same would also apply to individuals approaching venues for large events which are not designated sporting events, for example concerts. Police Scotland’s Pyrotechnic Short Life Working Group’s recent discussions about introducing search powers for the possession of pyrotechnic articles in public along with a ‘lawful authority / reasonable excuse’ clause have generated a proposal to consider any further evidence in relation to any legislative change.

The Code of Practice

Definition of a Stop and Search

Four pieces of feedback highlighted that defining a stop and search would be beneficial. For example, clarifying the lawfulness of searching a bag found in a vehicle suspected of containing unlawful items when the occupants of the vehicle take no ownership. And whether the removal of alcohol from a young person’s bag, them having refused to surrender it, would constitute the ‘search’ of a person. Defining the search of a person would provide clearer guidance to officers and members of the public about what constitutes and does not constitute the search of a person.

Content of the Code

Feedback on the wording of the Code has been received on 7 occasions:

1. There is a slight difference in the wording about reporting requirements between the Code and Section 69 of the Criminal Justice (Scotland) Act 2016. The Code refers to the Chief Constable disclosing stop and search information whilst section 69 refers to the disclosure of searches otherwise than in accordance with a warrant expressly conferring a power of search

2. The Criminal Justice (Scotland) Act 2016 requirement to disclose the number of searches under each statutory power may pose a risk when search levels are low (e.g. Terrorism searches)

3. The first sentence in paragraph 10 of Annex B of the code might better read ‘once the gender of the person being searched has been established…’.

4. Section 43 of the Terrorism Act 2000 should be considered as an exception to the code (given its governance by a separate code)

5. The Age for Criminal Responsibility ( ACR) Bill, section 7 (considerations when searching children and young people), may impact on the code.

6. Section 3 - Applicability of this Code may benefit from more emphasis on the legal position of the code. For example: The code must be followed at all times unless there is good reason not to do so, in which case the decision not to follow the code should be recorded in writing. The code is admissible in criminal and civil proceedings. A breach of the code itself does not make an individual liable to any such proceedings.

7. The code might acknowledge the use at times of sensitive tactics and intelligence which lead to stop and search and inform grounds for search and exempt the disclosure of such information through record requests.

Conclusion

• In the context set out in Section 65 of the Criminal Justice (Scotland) Act 2016, clarity is sought about specific police powers to search in cases of protecting life and vulnerability outwith custody and where a person is not being taken from one place to another (where a search would be lawful in accordance with Section 66 of the Criminal Justice (Scotland) Act 2016). Whilst Sections 20 and 32 of the Police and Fire (Reform) (Scotland) Act 2012 offers general police powers, careful consideration should be given to the future absence of a related power of search in express terms (stipulated in Section 65).
• Although the arrest power under Section 61 Crime and Punishment (Scotland) Act 2016 (failing to surrender alcohol upon request) has been used on only 2 occasions, caution should be used that this alone indicates that Section 61 provides sufficient police powers. Officers have highlighted that there are occasions where young people may be carrying alcohol in bags, refuse to surrender the alcohol, and given that putting a hand in a person’s bag to remove alcohol in such circumstances may constitute an unlawful search, officers are at that point reluctant to proceed to arrest (to avoid criminalising children). In addition the information from Ayrshire, July 2017, gives further evidence in considering whether there is a need for an alcohol power of search (potentially a conditional power of search in specific circumstances or similar to Section 67 of the Criminal Justice (Scotland) Act 2016).
• The absence of a power of search for weapons in private and items used to commit vandalism and fire-raising have been raised, albeit to a lesser extent than an alcohol search power. Of particular note is that the police powers to search a person for weapons set out in the Criminal Law (Consolidation) (Scotland) Act 1995 , do not expressly extend to vehicles being used by a person at the material time, which may be a factor in cases not proceeding to trial. Police Scotland’s NSSU are progressing work with the COPFS to understand more of the detail.
• The gap in search powers relating to the possession of pyrotechnics, flares and fireworks at events such as football matches, concerts etc has been highlighted, where a person possesses such items and is attending such an event (but at the time is outwith a designated area defined by the Criminal Law (Consolidation) (Scotland) Act 1995).