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

4 Other potential gaps in the legislation

4.1 Introduction

This section of the report looks at the potential that the introduction of the new legislation and CoP have resulted in any other gaps around stop and search. Section 65 of the Criminal Justice (Scotland) Act 2016 set out the specific legal powers under which a search could take place. Legislation was introduced through the 2016 Act allowing officers to search individuals on grounds that were not based on an offence having been committed. For example, under section 66 of the Act, a person who is not in police custody may be searched if they are being transported under warrant or court order, or where officers believe it is necessary to do so for their care and protection. In addition, Section 67 of the Act enabled officers to search an individual entering an organised event as a condition of entry in order to ensure the health, safety and security of people at that event. However, police officers expressed concern that these powers did not include situations in which a search may be considered necessary to preserve life. Paragraph 3.4 of the CoP was, therefore, added to make clear that officers must take all steps necessary to protect life, as legislated for under Sections 20 and 32 of the Police and Fire Reform (Scotland) Act 2012. In order to assess whether the current legislation has left any significant gaps or ambiguities in the power of police officers to stop and search, the review examined the statutes under which searches were conducted and looked at the number that were considered justifiable by police officers but which were not explicitly covered by the new legislative provision. This review also considered any other issues specifically raised by officers when recording a search about gaps in legislative provision.

4.2 Legal statutes used for stop and search

Section 65 of the Criminal Justice (Scotland) Act 2016 sets out the specific grounds on which a search can be undertaken and these fall within specific statutory provisions. As can be seen from Table 6, there was relatively little change overall in the relative distribution of the statutory provisions used when recording searches when comparing the six month period following the introduction of the CoP with the equivalent six months of the previous year. There was a slight (3%) reduction in the proportion of all searches that were conducted under the Misuse of Drugs Act; however, these remained by far the most commonly used overall. There was a small (2%) increase in the proportion of all searches conducted under Section 60(1) of the Civic Government (Scotland) Act 1982 for stolen property, but this still formed the basis for less than 10% of all searches. Searches for weapons were uncommon in relative terms, accounting for just 5% of all searches during both time periods. The remaining statutes were used even less frequently and changed very little in terms of their relative share.

Following implementation of the CoP, two new codes were added to the national Stop and Search Database which records the statute under which the search took place. The first new code records searches conducted under Section 66 of the Criminal Justice (Scotland) Act 2016 where a person was being removed or transported but not in police custody. A total of 70 searches were conducted under this legislation following the implementation of the CoP, as shown in Table 6. The second new code records encounters where police officers intervened under Sections 20 or 32 of the Police and Fire Reform (Scotland) Act 2012 to protect life and undertook a search as part of this intervention. Searches conducted under Section 67, at designated events or premises, are not recorded on the NSSU Database as it was considered impractical to do so.

Table 6 shows that there were 22 incidents in which officers intervened to protect life under Sections 20 & 32 of the 2012 Act in which a search was recorded in the six months after the CoP was introduced. While these numbers are relatively small, they are of a similar scale to the number of searches conducted under ‘other statutes’; and, arguably, they reflect some of the most serious and distressing incidents dealt with by officers in the line of duty. The use of this legislative provision is discussed further in section 4.3.

Table 6: Number of searches by legal statute used to justify search (% of all searches)

Note: Column percentages may not total 100% due to rounding.

4.3 Evidence from Calls for Feedback

The most common area highlighted by officers using the Calls for Feedback related to the use of stop and search for the purpose of protecting life or in circumstances in which the individual was considered to be vulnerable (See Appendix 1). A total of 27 pieces of evidence were gathered. Of key concern was the fact that Section 65 of the Criminal Justice (Scotland) Act 2016 provides that a specific search power must exist when a person is not in custody. Since Sections 20 and 32 of the Police and Fire (Reform) Scotland Act 2012 were not expressly included, this has caused some confusion and ambiguity about whether this statute can be used as a ‘power’ to justify searches, even though the CoP expressly recognises the duty of offices to protect life. Officers highlighted regularly dealing with vulnerable people and those with significant mental health concerns in circumstances where no offence had been committed but there were genuine concerns about possession of harmful objects. It is, therefore, possible that the number of searches conducted to protect life has been under-recorded. This is an issue that should be considered further as part of the 12 month review.

There were 10 examples of evidence from officers on the issue of conducting searches for weapons in a non-public location (such as a home address or searching a vehicle for a weapon). ^[5] Examples were given of weapon searches conducted within a private dwelling which were believed by the officers involved to be justified in the circumstances, but it is not entirely clear whether Section 48 of the Criminal Law (Consolidation) (Scotland) Act 1995 would apply as this extends only to searches of people suspected of being in possession of an offensive weapon in a public place. In addition, some officers had conducted weapon searches of a vehicle despite the fact that this is not specifically covered by the current 1995 Act (although the Misuse of Drugs Act 1971 does allow for such a provision). There was concern that such cases may raise issues with regards to proceeding to trial, and that further clarification within the legislation and the CoP is necessary. Again, this is an issue that warrants further investigation as part of the 12 month review.

Officers also raised some issues around searching for evidence that had arisen during the first six months of the CoP. These included examples of searching on the basis of crimes that were aggravated by the use of a weapon, crimes of vandalism, possession of accelerants used in crimes of fire-raising, and the possession of dangerous items when travelling to sporting events. Currently, the Criminal Law (Consolidation) (Scotland) Act 1995 provides powers to search those attempting to enter a designated venue; however, questions were raised over the need for police powers to search those aged 18 or over for flares or fireworks when they were travelling to (but had not yet arrived at) the venue. Police Scotland established a Pyrotechnic Short Life Working Group to consider, among other matters, the possible need for legislative change to help tackle the unsafe use of pyrotechnic articles in public places. Police Scotland is currently evaluating the need for any such legislative change; therefore, it is recommended that this Group is consulted on this issue during the course of the 12 month review.

4.4 Summary

Section 65 of the Criminal Justice (Scotland) Act 2016 specified that officers may only conduct searches “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”. Policing representatives were concerned that the current legislation may have left gaps or ambiguities, such as in situations where a search may be considered necessary to preserve life. An examination of the statutes recorded for searches found very little difference in the six month period following the introduction of the Code of Practice compared to the equivalent period in the previous year. However, officers had conducted 22 searches as part of an intervention under Sections 20 and 32 of the Police and Fire Reform (Scotland) Act 2012 to protect life.

The lack of a specific search power to protect life was the most common issue that police officers highlighted during the initial six months of the implementation of the CoP. Other areas highlighted as potential legislative gaps included the power to search for weapons in a non-public location, including dwellings and vehicles; and the power to search for pyrotechnics and flares when individuals are travelling to major sporting or other events. Given that such statutes were only used in exceptional circumstances but were clearly considered necessary to protect the life and wellbeing of both the individual and others involved, it would seem reasonable to provide greater clarity by ensuring either that these statutes are included under the formal powers of search, that other bespoke search powers are enacted, or that greater clarity is provided in some other way. It is recommended that further evidence be gathered around all of these legislative issues as part of the 12 month review.

Recommendations for the 12 month review:

6. To examine the extent to which evidence exists to support the need for a specific power to search people in circumstances where it is needed to protect life.

7. To examine the extent to which evidence exists to support the extension of powers to search vehicles or people in private dwellings.

8. To examine the extent to which evidence exists to support the need for powers to search for pyrotechnic articles in public places.