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

1. Introduction

1.1 Background to the Code of Practice

Concerns about the use of police stop and search in Scotland were first raised in 2014 after research suggested there was a higher rate of searching in Scotland compared to other countries and that children and young people were disproportionately subject to police searches (Murray 2014). In particular, Murray’s research raised legal and ethical issues about the use of non-statutory searches which were conducted on the basis of consent rather than any legislative powers. In early 2015, an audit review by Her Majesty’s Inspectorate of Constabulary in Scotland ( HMICS) concluded that a widespread review of stop and search was necessary and recommended that a police Code of Practice be introduced. In response, the Cabinet Secretary for Justice, Michael Matheson MSP, established an Independent Advisory Group on Stop and Search ( IAGSS) to determine what legislative and governance changes were necessary to ensure that stop and search was conducted in a fair, effective and proportionate manner and to consider the need for a Code of Practice.

Following an extensive review of the evidence, the IAGSS reported its findings to the Cabinet Secretary in August 2015 and recommended that non-statutory searching should be abolished and that there should be a statutory Code of Practice for stop and search. The IAGSS also recommended that data on stop and search should be published on a regular basis by Police Scotland and that all of the changes to stop and search should be subject to a detailed implementation and training plan. The IAGSS were unable to make recommendations on the introduction of new legislation to cover searching of young people for alcohol (for which there is currently no statutory power) and recommended that further consultation be conducted on this subject. All of the IAGSS recommendations were accepted by the Cabinet Secretary and new legislative provisions governing the use of stop and search were introduced in Section 65 of the Criminal Justice (Scotland) Act 2016. The Act included provision for a Code of Practice for Stop and Search in Scotland, which came into force on 11th May 2017.

In order to evaluate the implementation of the Code of Practice and to consider whether there were any gaps in legislative provision, the IAGSS developed proposals for a review once the Code of Practice had been in force for 12 months, thus allowing it to become embedded in policing practice and to achieve the level of change within Police Scotland that is expected. The Cabinet Secretary for Justice also requested a six month interim review to provide an early indication of whether the Code of Practice had met its aims. This report sets out the findings of the interim review, covering the first full six month period from the implementation of the Code of Practice, from 1st June to 30th November 2017.

1.2 Scope of the six month interim review

During the course of deliberations by the IAGSS, police representatives and other stakeholder groups raised specific concerns about the proposed changes to stop and search in Scotland. Some stakeholders questioned whether the new legislative provisions and the Code of Practice adequately ensured that policing practice would not be unduly restricted in its efforts to keep people safe in Scotland. There were also concerns that, in the absence of non-statutory search, police officers might start to increase their reliance on other forms of legislation. Having observed significant disproportionality in the use of stop and search, especially against young males, stakeholders also expressed a need to ensure that the tactic was not used unfairly against those with protected characteristics. Therefore, the scope of the six month review covers four main areas, as detailed below.

i. Identify potential gaps in the legislation around young people and alcohol

The lack of a police power to search young people for alcohol was one of the most contentious issues in the public consultation on Stop and Search conducted in 2015. In particular, policing representatives were concerned that the abolition of consensual searching would leave them powerless to search a young person in the event that they were suspected of carrying concealed alcohol, thus placing the young person or others at risk, and that the existing powers of seizure were insufficient to deal with the extent of the problem in Scotland. Others, however, argued that there was no strong evidence to suggest that a power to search young people for alcohol was necessary and that such a power may result in disproportionately high search rates amongst young people, which might damage relationships between young people and the police (see Murray and McVie 2016). It was also noted that the power to search for alcohol is not available for officers in England and Wales (although it is available to PCSOs).

The IAGSS report stated that there was insufficient evidence to support the creation of a new legislative power to search children for alcohol at that time, but recommended that the situation be reviewed after the Code of Practice had been in place for a period of time. Therefore, the six month interim review provides information on the number and nature of incidents dealt with by police that involve young people and alcohol and considers whether there is any evidence to suggest that the lack of a power to search for alcohol has resulted in an increase in the use of arrest amongst young people for alcohol-related issues. The review also looks at the wider context of alcohol related concerns, including trends in alcohol use and hospital admissions for young people under the influence of alcohol.

ii. Identify other potential gaps in the legislation or lack of clarity in the Code of Practice

The wording of Section 65 of the Criminal Justice (Scotland) Act 2016 states that officers may only conduct search a person who is not in custody “in accordance with a power of search conferred in express terms by an enactment, or under the authority of a warrant expressly conferring a power of search”. During the IAGSS consultations, some police officers expressed concern that there was no explicit power to search in situations where police officers believed intervention was necessary to preserve life. In response, Paragraph 3.4 of the CoP was added to make clear that officers must take all steps necessary to protect life. In order to assess whether the current legislation has left any significant gaps or ambiguities in the powers of police officers to stop and search, this review considers evidence on the number of searches that were considered justifiable by police officers but which were not explicitly covered by Section 65 of the Criminal Justice (Scotland) Act 2016. This includes interventions under Sections 20 and 32 of the Police and Fire Reform (Scotland) Act 2012 to protect life. The review also considers any issues specifically raised by officers when recording a search about the lack of legislative provision.

iii. Identify any increase in the use of Section 60 Criminal Justice and Public Order Act 1994

After the phasing out of consensual search, some stakeholders expressed concern that the use of so-called ‘no suspicion’ searches by Police Scotland under Section 60 of the Criminal Justice and Public Order Act 1994 could increase. The review therefore considers whether there was any increase in the number of authorisations for, or change in the profile of, searches conducted under Section 60.

iv. Examine use of search involving individuals with protected characteristics

Concern was expressed during the public consultation on stop and search about the disproportionate searching of children and young people, and on the mechanisms of policing engagement which can have a negative effect on young people and their attitudes towards the police. Section 7 of the new Code of Practice specifically addressed the issue of searches involving children and young people, and Police Scotland provided training for all officers aimed at improving methods of engagement with young people. The training also examined the issue of unconscious bias when dealing with any individuals with protected characteristics. Therefore, the review looks at the impact of the Code of Practice by examining any changes in the profile of searches and whether rates of search appear to be disproportionately high and detection rates disproportionately low in respect of any group with protected characteristics, especially children and young people.

1.3 Evidence used in the review

As it is an interim review, it is based mainly on analysis of readily available statistical data or other information held by Police Scotland or from other open source data. This includes data from the Stop and Search Database (search and seizure) and the Storm Unity Database (containing data on reported incidents), provided by Police Scotland. The review also draws on a short report provided by the Police Scotland National Stop and Search Unit ( NSSU) (see Appendix 1). The NSSU report summarises information recorded by police officers using the Calls for Feedback facility on the Police Scotland Stop and Search intranet page (which allows officers to share their experiences of using stop and search and highlight any issues they have identified with the legislation or CoP). It also provides data from their 100% review of search records and a sample of daily ‘incidents of note’. In total, the Police Scotland report drew on 71 incidents or pieces of feedback and, therefore, provides a valuable source of evidence. The review also draws on data supplied by the Information Services Division ( ISD) of NHS National Services Scotland on the number of hospital admissions involving young people. All analyses were subject to statistical testing and, unless otherwise stated, any differences reported in this review are significant at the 95% confidence level.

The review did not involve any qualitative research, such as canvassing the views and experiences of police officers, young people or individuals working with children and young people; however, qualitative research will be commissioned by Scottish Government and reported as part of the 12 month review. Recommendations on the focus of the qualitative research that should be conducted are included in section 8 of this report.

The interim review period covers the six months from 1 ^st June to 30 ^th November 2017; however, comparisons are made with the equivalent six months prior to implementation of the Code of Practice (1 ^st June to 30 ^th November 2016). In addition, for the sake of understanding patterns of continuous change, month by month analysis using data covering the 12 month period prior to the introduction of the Code and the six months after is provided, where appropriate.

1.4 Structure of the report

Section two of this report sets out an overview of the changes that occurred in the use of both stop and search and police use of alcohol seizures in the six months following implementation of the Code of Practice compared with the equivalent six month period in the previous year. It also examines the general change in the positive detection rate for searches (including by statutory provision) and identifies changes in the geographical profile of searches across Scotland. Sections three to seven of the report provide the currently available evidence on each of the four areas covered by the scope of the review, as discussed in section 1.2 above. Conclusions and recommendations for the 12 month review are contained in the final section of the report.