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

8. Conclusions and Recommendations

In early 2015, the Cabinet Secretary for Justice in Scotland, Michael Matheson MSP, established an Independent Advisory Group on Stop and Search ( IAGSS) to conduct a detailed review of police use of this tactic in Scotland and consider whether there was need for a Code of Practice ( CoP). Following an extensive period of deliberation and a series of recommendations from the IAGSS to the Cabinet Secretary, new legislation was enacted through the Criminal Justice (Scotland) Act 2016 and a CoP came into force on 11 ^th May 2017. The Cabinet Secretary requested that a full review be carried out 12 months after the CoP was introduced, with an interim six month review to provide an early evaluation of the new legislation and CoP. This report provides the findings of the interim six month review. It examines changes in the use of stop and search and powers of seizure by Police Scotland from June to November 2017 and makes comparisons to the 12 months preceding the introduction of the CoP. The two main objectives of the review process were to determine the overall success of the CoP and consider whether there were any gaps in legislative provision; and to provide recommendations for areas of research to be considered in the 12 month review. The scope of the six month review covered four main areas:

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

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

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

iv. Examine use of search involving individuals with protected characteristics

Change in use of search and seizure

The review found that the introduction of the CoP on police use of stop and search did not have a dramatic impact on policing at the time of its implementation in May 2017 or in the six months afterwards. This was mainly because the high level of criticism targeted at the over-use of searching practices in Scotland in the preceding two years, followed by an intense period of scrutiny and the decision to abolish consensual searching and introduce a CoP, had already changed policing practice and driven down the number of encounters well before the CoP came into force.

Importantly, the decline in the number of searches did coincide with a significant increase in positive outcomes, which suggests that they are now based on a higher threshold of reasonable suspicion and, therefore, being used more effectively. However, there was a much greater decline in the use of alcohol seizures than expected, especially in the West of Scotland, which is surprising given the concerns expressed by policing representatives and other organisations in the public consultation period about the lack of a legal power to search for alcohol. In addition, there continues to be enormous geographical variation in the use of search and seizure. There has been a much higher proportionate decline in searches and seizures in the West of Scotland compared to the North (which remained fairly stable) and the East (which slightly increased) following the introduction of the CoP. The picture with regards to differences across Divisions is complex, however, and it is clear that the introduction of the CoP has had a differential impact on policing practice and positive outcomes between areas of Scotland.

New information published on the Stop and Search Database revealed that there were around 131 strip searches per month, on average, of which only 4% involve people under the age of 18. These had a higher than average detection rate, at 47%, which suggests that a high threshold of reasonable suspicion is used when deciding to conduct a strip search. No intimate searches were used in Scotland since the introduction of the CoP. There is also new information on the use of receipts following a search. This shows that receipts were issued following 87% of all searches, although this varied according to a range of factors, including the Division in which the search was conducted. Certain Divisions were far more likely to issue receipts than others, which may be related to population size and level of police demand.

Young people and alcohol

Although the police in Scotland have a power to request the surrender of alcohol under Section 61 of the Crime and Punishment (Scotland) Act 1997, they do not have the power to search a young person for alcohol in a public place even if an officer suspects it to be concealed (for example, in a jacket or bag). Prior to the introduction of the CoP, Police Scotland highlighted that policing incidents involving young people and alcohol could prove problematic and could result in an increased use of arrest where individuals were unwilling to surrender alcohol. The evidence analysed for this review indicated that alcohol consumption amongst young people has been on a long-term decline and there was little or no suggestion of a significant increase in alcohol-related incidents involving young people following the introduction of the CoP, either from Police Scotland data or NHS data, at a national level. The trends were not consistent across police Divisions, with some showing evidence of an increase or decrease in recorded incidents involving young people and alcohol, while others were fairly stable. However, the use of seizures was not always consistent with these trends, which does raise questions about the extent to which police powers are being used where necessary.

The expected increase in the use of alcohol seizures following the pressure to reduce consensual searching occurred soon after the publication of the HMICS report in 2015. However, this review found that there has been an ongoing decline in the use of powers to seize alcohol since May 2016. This was true across all age groups except those under 18, for whom seizures declined at a much slower rate until April 2017. Since the introduction of the CoP, trends in the use of alcohol seizures amongst young people have continued to decline, especially in the West of Scotland where there is a long history of alcohol related problems amongst young people. It is unclear why this is the case.

There was no evidence that statutory searches were being used inappropriately or indirectly to search for alcohol. However, police officers provided examples of problematic incidents which involved policing young people and alcohol without an express power of search, especially with reference to large crowds or major unorganised events, which cannot be dealt with under Section 67 of the Criminal Justice (Scotland) Act 2016. Officers have been reluctant to resort to arrests to remove alcohol from young people which has avoided criminalising many; however, the number of recorded seizures is not consistent with the claims that they are used extensively (e.g. in the example of the Ayrshire beach case study). There is a need for further information to understand the patterns of search in relation to alcohol related problems within specific Divisions and to consider the additional benefit that would be obtained through having the power to search.

Use of Section 60 authorisations

Prior to the introduction of the CoP, there was concern about an increase in searches by Police Scotland under Section 60 of the Criminal Justice and Public Order Act 1994, or so-called ‘no suspicion’ searches. However, the review found that there had been only one authorisation under Section 60 since the implementation of the CoP. There is, therefore, no evidence that Section 60 authorisations have been used as a way of creating wider opportunities for search under the CoP, which was one of the criticisms of stop and search in England and Wales.

Potential legislative gaps

Section 65 of the Criminal Justice (Scotland) Act 2016 stipulated that officers must use an explicit power of search. Prior to the introduction of the CoP, policing representatives raised concerns about possible gaps or ambiguities in the legislation, specifically in relation to the lack of a power to search in situations where they needed to intervene to preserve life. There was very little change in the use of the various existing statutes in the six month period following the introduction of the Code of Practice compared to the equivalent period in the previous year. However, between June and November 2017 there were 22 incidents in which officers intervened to protect life under Sections 20 & 32 of the Police and Fire Reform (Scotland) Act 2012 in which a search was recorded. Although small in number, these represent extremely serious and often distressing cases, and the numbers were similar in scale to searches carried out under other legal statutes. The lack of a specific search power to protect life was the most common issue highlighted by police officers during the initial six months of the implementation of the CoP. Other issues raised 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. Following this review, there is clearly a need to collect further evidence around these issues.

People with protected characteristics

A key aspect of the six month review was to examine changes in the use of search for those with protected characteristics (age, sex and ethnicity). Evidence showed that levels of search had reduced across all ages and, while young people continued to be the most likely group to experience a search, the degree of disproportionality in terms of targeting these groups had significantly declined in the period following the introduction of the CoP. Rates of seizure had also declined significantly across all age groups; however, the seizure rates had declined less for young people under the age of 18 than for older people, most likely due to continued concern about policing alcohol-related harm amongst young people in Scotland.

The overall number of searches and seizures had declined for both males and females following the introduction of the CoP, although for some older age groups the rate of search had increased for females. This was predominantly due to the introduction of recording for searches under warrant which inflated existing small numbers. In terms of ethnicity, searches and seizures predominantly involved white people both before and after the introduction of the CoP. The rate of searches had declined across all non-white ethnic groups, such that the level of search now broadly matches the population figures. There was a significant reduction in search rates per capita for all ethnic groups, although they were still somewhat higher for non-white ethnic groups than for white people. It should be noted that the population data used to calculate rates per capita are unreliable and no conclusions as to ethnic bias can be drawn from these findings. There was a large increase in the proportion of cases for which ethnicity was recorded as ‘unknown/not provided’ which is deserving of further consideration.

An important factor in determining the success of the CoP was to examine rates of positive outcome, as this is an indicator for greater effectiveness and a higher threshold of reasonable suspicion. This review found a significant increase in the positive detection rates for all age groups after the introduction of the CoP, particularly amongst those for whom positive rates were lowest prior to the CoP. This included young people aged under 18, although there was still room for improvement with regards to increasing positive outcomes for this group. Positive detection rates also increased for both men and women and amongst all ethnic groups. Overall, this review suggests that the reduction in the number of searches following the introduction of the CoP has coincided with an increase in the positive outcome of such encounters across all groups with protected characteristics.

Predicting a positive search outcome

Looking in more detail at the likelihood of achieving a positive outcome, this was found to be predicted strongly by age, but less so by ethnicity and not at all by gender. The success of searches was also influenced to some extent by the time of day and day of the week in which they were conducted, with evidence that some periods of police activity are more productive than others. Searches for stolen property were more likely to result in a positive outcome than those for drugs, but searches for offensive weapons were the least successful type of search. Even taking account of these other factors, there were considerable differences in the likelihood of a successful outcome based on the Division in which the search took place. Ayrshire and Lanarkshire were especially successful, with around three times greater odds of a search being positive compared to Greater Glasgow. These continued geographical differences would benefit from further examination.

Finally, looking more specifically at the impact of the Code of Practice, this review found that searches were around 33% more likely to result in a positive detection than those in the equivalent six month period of the previous year. This indicates that there has been a real, measurable improvement in the likelihood of a positive search during the period following the introduction of the CoP. There is a range of possible explanations for this, including increased police confidence, greater targeting of reasonable suspicion and better use of engagement, thus reducing the necessity to search in cases that would be unlikely to be productive. This interim review cannot determine the extent to which these reasons might explain the improvement in success rates, so this would strongly benefit from.

Recommendations for the 12 month review

• 1. To examine the reasons for the geographical differences in the changing patterns of search and seizure based on police Division.
• 2. To examine the reasons for the geographical differences in rates of positive search based on police Division.
• 3. To examine the reasons for the non-issue of receipts to people who have been subject to search and to consider the geographical differences in issuing receipts between police Divisions.
• 4. To examine the sharp decline in the use of alcohol seizures within the West of Scotland, and in Greater Glasgow in particular, and to explain this against an apparent backdrop of increasing alcohol-related incidents amongst people aged under 18.
• 5. To examine the extent to which evidence exists to support the need for a power to search young people for alcohol, especially in relation to large unplanned events.
• 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.
• 9. To examine the disproportionality in the use of stop and search amongst young people under the age of 18 and the lower positive search outcome amongst this group.
• 10. To examine the reasons for the increase in the recording of ethnic status as ‘unknown/not recorded’.
• 11. To examine generally how practice in relation to search and seizure has changed within police Divisions as a result of the introduction of the Code of Practice and why this has led to an increase in positive search rates.