Stop and Search code of practice: twelve month review - qualitative report

2. The stop and search procedure

2.1 Introduction

This chapter describes how the stop and search procedure currently works, and the extent to which it has been carried out in line with the CoP. It then outlines the current structure in place to oversee use of the procedure, and views about the training provided to officers carrying out stop and search.

2.2 The current procedure

Feedback from police and the NSSU suggested that stop and search was generally being carried out in line with the CoP, though this was not always supported by the accounts of young people. Views on each stage of the procedure are explored in more detail in the sections below.

2.2.1 Summary of key stages in the procedure

Based on feedback from both police and young people, stop and search was primarily carried out where the individual was suspected of carrying drugs, an offensive weapon, or stolen property. Police noted that drugs were the most common reason for searches overall (supporting findings from quantitative analysis), though this varied depending on the area and the unit in question (e.g. officers from violent crime teams said they were more likely to be searching for offensive weapons than drugs).

The key stages in the stop and search procedure, as described by police representatives, are summarised in Figure 2.1 below and reflect the broad stages of the process outlined in the CoP. The key stages of the procedure shown have remained largely unchanged since the introduction of the CoP. The main exceptions to this were in the latter stages, specifically the issuing of receipts, which was new to the process and expanding the amount of detail entered into the stop and search database.

The key stages of the process are explored in more detail below, based on feedback from both police and young people who had experienced stop and search.

Figure 2.1: Key stages in the stop and search procedure

2.2.2 Engagement with the individual

The CoP states that "before detention and carrying out a search, the constable should try to engage with the individual and ask questions about the person's behaviour or presence which gave rise to the constable's suspicion" (s4.10).

Police said that in almost all cases they would engage with individuals first before a stop and search was carried out. The only exceptions would be if they knew the individual was carrying a knife and had the potential to use it, in which case they may restrain the person first before beginning to ask questions.

Police highlighted the importance of engagement with individuals as part of the process. Partly, this was as a means of establishing the reasonable grounds for suspicion (see 2.2.3 below) before deciding whether or not to carry out a search. However, it was also seen as a crucial aspect in the overall process, as it helped to build rapport with the individual and make them as comfortable as possible. Police officers would also alter their communication style as necessary depending on the individual in question. This ability to adapt was seen as particularly important when engaging with vulnerable people, including those with mental health conditions, and young people. Police officers also adapted their language to ensure that the individual understood what was happening. Observations of behaviour during the initial engagement were also seen as important in establishing whether there was any potential risk of the individual trying to run away or becoming violent, with police officers again adapting their approaches accordingly.

"[You use your] social skills. There's not really one hard and fast way how you're approaching someone about a stop search."

(Police officer)

"Basically, it's your normal mechanics of speaking to people. If I think that person is a threat, then my elbow is going to go to the 90 degrees, so you're able to react, defend yourself or intervene if they try to get away. Then you are talking as best you can, calm, clear, concise, and then you immediately explain what you're going to do and the reason why."

(Police officer)

Feedback from young people suggested that in almost all cases police had engaged with them in advance of the search taking place. When describing their experience, young people typically said that the police had initially approached them (either on foot, or having exited a police vehicle), spoke with them, and asked questions of them (such as what they were doing, where they were going, and where they had been) before telling them that they had suspicion to search them.

In terms of the nature of the engagement from police, young people expressed mainly negative views. While some participants noted that police had spoken to them in a calm and pleasant manner, it was more common for them to take exception to the way in which police had interacted with them, describing their tone as "rude" and at times "aggressive", both at this initial stage and throughout the process. Indeed, the communication style used by police was often highlighted as one of the factors which contributed to them having a negative view of their experience overall. It is worth noting that such views tended to be framed within negative opinions of the police, either because of past personal experiences or more deep-rooted attitudes towards the police in general. Within the context of these wider perceptions, communication and engagement style was one of the main areas that young people felt should be addressed as a means of improving their views of, and relationship with, the police.

2.2.3 Establishing reasonable grounds for suspicion

While police took a range of factors into consideration in deciding whether or not to search an individual, the fundamental basis on which they did so was the legal test of "reasonable grounds for suspicion". As stated in s4 of the CoP: "Reasonable grounds for suspicion is the legal test that a constable must satisfy before they can stop and detain a person to carry out a search under almost all statutory provisions. The usual requirement is a reasonable suspicion that the person has committed, or is committing, or is about to commit, a particular crime or is in possession of a prohibited article."

It was common for police officers to say that they would not carry out a search if they did not feel confident that they had reasonable grounds for suspicion. In particular, they were conscious of the prospect that unreasonable grounds could potentially be challenged in court at a later date, and they therefore had to be confident that this legal test had been satisfied.

A range of factors were taken into consideration in establishing reasonable grounds, drawing on a combination of intelligence about individuals and officers' own observations of behaviour while engaging with members of the public. Intelligence about an individual could include: reports from members of the public such as witnessing theft of property; and intelligence that had been gathered by the police over a period of time. Police also used a more reactive approach when they observed people behaving in a way that led them to suspect they may be carrying an item. Factors taken into consideration included behaviour that would suggest drug use, such as smelling of cannabis, slurred speech, and dilated pupils, or other unusual behaviour such as running away when police approached. However, the overall sense was that reasonable grounds was multi-faceted and was down to the police using their judgement on a case-by-case basis.

"It could be a smell, it could be an observation, it could be nervousness or looking like they're trying to hide something, or it could be a variety of things. It's a tough one to explain... it is a build-up of all those different factors rather than any one factor."

(Police officer)

"'Reasonable' is subjective. So, what's reasonable in one set of circumstances might not be reasonable in the next and it's impossible to say."

(Police officer)

While all officers were conscious of the requirement to establish reasonable grounds for suspicion, some felt this restricted their ability to search individuals in certain circumstances. Specifically, it was noted that police were often aware that an individual had been searched multiple times in the past, each time with the positive recovery of an item, and that searching the same individual again would be likely to result in the same outcome. However, in the absence of any other information that would establish reasonable grounds, they knew they would be unable to carry out that search. This had become more apparent since the cessation of non-statutory consensual search, and officers who had carried out such searches in the past felt they were now using the power less.

"If I stopped [someone] with drugs on them yesterday, there is a good chance they might have drugs on them today… but because you've got no grounds, you can't stop them."

(Police officer)

In terms of guidance on reasonable grounds within the CoP, there were mixed views. Generally, officers felt that guidance on reasonable grounds was clear and they felt confident in using their judgement on how to apply the test in practice. However, even among those who felt the guidance in the CoP was clear, there was a sense that the test for reasonable grounds was primarily based on the individual judgement of each officer, and that the CoP could not be prescriptive about what those grounds were. The onus on individual officers to apply their own judgement was seen as one of the challenges of the process, particularly for less experienced officers that had encountered fewer 'real life' incidents that they could draw on to aid their judgement.

Though not a common view, some officers also felt that this subjective approach to reasonable grounds created inconsistency in its interpretation, and therefore felt that the guidance within the CoP lacked clarity and sufficient detail about what constituted reasonable grounds.

"It all comes down to personal experience and just learning on the job …having a Code of Practice doesn't necessarily change those reasonable grounds and it can't be prescriptive about them."

(Police officer)

"There is not enough in-depth information and that confuses cops, they just don't know what is right ... each circumstance is different, it's never the same and trying to relate what you've read to what you're dealing with at the time is really difficult."

(Police officer)

2.2.4 Explanation of reasonable grounds, the legal basis and what the search would involve.

When describing the key stages of the stop and search process, police noted that they would, as standard, explain the reason for the search, provide the legal basis for the search, and provide a description of what the search would involve before proceeding. These steps were followed with the aim of ensuring the individual understood each of these elements, reflecting the requirement that "constables must ensure, so far as is reasonably practicable, that the person understands why they are to be searched and what the search will involve" (s6.10).

Based on the accounts of young people, it appeared that the grounds for suspicion and details of what the search would involve had usually been explained to them. However, while there were a number of young people who specifically remembered explanation of the legal basis, including those who could recall the specific legislation cited (e.g. the Misuse of Drugs Act), this was not commonplace.

Whether or not the reasonable grounds for suspicion, or the legal basis, had been explained, there was repeated suggestion by young people that police had "no reason" for searching them. This was coupled with a sense they were they were "picked on" by police, or searched because of who they were, how they looked ("they just think I look dodgy"), or who they associated with. This speculation suggests that, if police had explained their reasons for searching these young people, those reasons had either been forgotten or had not been believed. Again, such views should be interpreted in the context of wider negative opinions held about the police by young people.

2.2.5 Location of the search

In relation to the location of the search, the CoP states that "the search must be carried out at or near the place where the person was first detained" (s6.4), and that "where on reasonable grounds it is considered necessary to conduct a more thorough search (e.g. by requiring a person to take off more than an outer coat, jacket, gloves, headgear or footwear), then this should, where possible, be done out of public view" (s6.7).

Police described either carrying out the search at the place where the person had been stopped, or moving them to a more private, discreet location such as a doorway or a side street. Officers said the reason for moving them would be to avoid embarrassment for the individual, particularly as they would be removing items of clothing, and to avoid attracting undue attention from members of the public. If a strip search was being carried out, for example if the officer had reason to believe that the individual had concealed items within their body, the individual would be taken to the station and the appropriate authorisation for the search would be sought.

"Most of the time you would try and [search] discretely, so you would perhaps go into a close, or round a corner, you would hope not to do it in the full glare of the public... So, you always do your best to minimise any embarrassment or to create a scene or to even attract others."

(Police officer)

Young people gave mixed accounts about the location of the search; some recalled being asked if they would like to be moved elsewhere, while others did not. Among those that had been asked, they usually said they were happy to be searched there and then to get it "over and done with". However, for those who did not recall being asked, the location of the search was one of their main issues with the process. If carried out in a public place, young people felt embarrassed and uncomfortable. Indeed, when asked what they felt the police could do differently if carrying out a stop and search in future, one of the most common suggestions was doing so in a more private location away from passers-by.

2.2.6 The search itself

The actual search was described in similar terms by both police and young people, and usually involved the removal of the persons' jackets, hats and shoes, turning out all pockets, and patting them down. Young people did not raise concerns about the way in which the physical search was carried out.

The main challenge noted by police was the need to manage any hostile, negative feedback from the person while the search was taking place, which in extreme cases could include physical violence. Where there was violence, or the threat of it, police used communication tactics to attempt to calm the situation, or restrained the person using handcuffs where necessary. However, this was seen as "part and parcel" of an officer's role and one that they felt equipped to manage.

2.2.7 Taking and recording of details

Police and young people both described the information that was typically collected during the search, which consisted of names, dates of birth, addresses, and contact phone numbers. No particular issues were raised by police or young people in relation to the recording of these details.

Police were asked in more detail about a specific query raised in the six-month review, which noted that there had been an increase in the proportion of cases for which ethnicity was recorded as "unknown/not provided". With a view to explaining this increase, participants were asked about the extent to which they recorded ethnicity and whether or not they faced any difficulties when doing so. Police said they asked and recorded ethnicity in "most" cases, and did not spontaneously raise any challenges in doing so. However, when asked about the large number of "unknown/not provided" cases, it was suggested that police officers may not have asked about ethnicity in these cases because they felt it would have been uncomfortable or insensitive to do so. It was noted that the stop and search process is already a sensitive one, which requires careful management of the interaction between officer and individual, and that asking for ethnicity details could risk upsetting or offending the person being searched. As was a common theme throughout police views on the procedure, the importance of communication skills and the ability to judge the most appropriate approach to each situation was again emphasised.

"If you've stopped an Asian person in Glasgow and say, 'What ethnicity are you?' [and they answer] 'I'm from Glasgow'…you don't really want to start asking any further questions, because I'd probably find that quite insulting... you don't want to press the issue and cause a potential offence."

(Police supervisor)

2.2.7 Issuing of receipts

Issuing of receipts was noted by police as one of the main changes that came into place with the introduction of the CoP. Officers said they issued receipts for most searches they carried out. In cases where receipts were not issued, this was usually because the individual had run away before it had been prepared, or because they had declined the receipt. However, where this was the case the details of the search would still be recorded on the database. Though not common, there were also instances of officers carrying out a stop and search without their receipt book, for example if they were in plain clothes and not carrying their usual range of equipment and materials. In these cases, the receipt would be issued retrospectively.

"A receipt is written out [every time] and if they refuse it we generally keep them and then obviously it is logged on the system with the number and the fact they refused it."

(Police officer)

Police supervisors and the NSSU noted that monitoring of receipts was in place, and that the data indicated that receipts were being issued in most cases. Where there was a record of a receipt not being issued, this would be followed up with the officers in question and an explanation would be sought.

"We constantly monitor if a receipt has been issued or not. So, if the database records that no receipt has been issued, we are able to then look and find out why. It allows us to maintain that record of…whether or not receipts have been issued and if not, what is the reason? Is the reason a legitimate reason?"

(NSSU representative)

In contrast to police views, feedback from young people suggested that receipts were not issued in all cases. Indeed, most of the young people we spoke to did not recall having received a receipt the last time they had been searched, including those that had been searched multiple times in the past and were therefore aware of the need for receipts to be offered. Where a receipt had been issued, they had tended to accept it because they wanted a record of the search for themselves or to show to their parents. Those that refused the receipt had done so because they "were not bothered" and did not see the benefit of having a record of the experience.

Overall, police officers were broadly positive about the use of receipts, though pros and cons were discussed. The perceived benefits of receipts were that they provided a formal and transparent record of the search that would both provide the person being searched with reassurance of the legitimacy of the procedure, and stand up to potential future scrutiny if the procedure was challenged in the future. Supervisors also noted that the introduction of receipts had led some officers to think carefully about their grounds for suspicion, as the receipt would involve details of the search being provided to the person, along with the opportunity to request more information and potentially complain if they felt justified in doing so.

"There is a wee bit more scrutiny towards it, because you are giving people receipts saying, 'feel free to make a complaint.' Everything has to be 100 per cent in your notebook, 100 per cent in your stop search form. So, that way it has improved just because of the importance of the information you've got to put in to cover yourself."

(Police supervisor)

"I am a fan of the receipts, because I think it encourages...more transparency in officers, because they have to hand it out, so I think it probably makes them think about their grounds a bit more because they are going to be issuing somebody with a ticket."

(Police supervisor)

The drawback of receipts, though relatively minor, were that they were somewhat of "a pain" to complete as they required more time and placed an additional level of administrative burden on the police.

2.2.8 Recording details on the Stop and search database

Based on feedback from police officers, details of all searches were recorded on to the stop and search database once the officer was back at their station. Generally, the database was considered straightforward and easy to use. A small number of officers, however, had faced difficulties providing the level of detail required within the database, which has increased as a result of the CoP. This included providing the postcodes for the search, which officers did not always know the exact details of, and the amount of information required to explain their grounds for the search, which some struggled to articulate in sufficient detail. A more common view, even among those who found the database straightforward to use, was that it was time-consuming and difficult to fit around their other day to day tasks, which at times resulted in a backlog in records not being entered into the database.

2.3 Oversight and training

2.3.1 Oversight of the process

Officers carrying out stop and search are overseen by their supervisors (of sergeant rank), whose role includes: answering any queries officers might have about any aspect of the process; offering advice and guidance on any areas of uncertainty, including reasonable grounds for suspicion; reviewing officers' notebooks and ensuring that each stop and search is recorded as it should be.

Oversight of stop and search is also provided at a national level by the NSSU. Their role includes reviewing and maintaining standard operating procedures, and giving advice to police divisions about the CoP and the stop and search process. They also collate and monitor data recorded on the national stop and search database, including reporting on the number of incidences by area and identifying any trends over time. As part of their work, the NSSU also identify any cases where officers have not followed standard stop and search procedure, in which case they follow up with the officers in question for more details.

No concerns were expressed about the current oversight of the process. The NSSU did note, however, that their oversight of the process may ultimately be transferred to individual divisions and that appropriate preparation for this should be put in place.

2.3.2 Training

Prior to the CoP being introduced, a national training programme was delivered to help prepare officers for changes introduced by the code. This multi-faceted and extensive training programme consisted of online modular learning (via 'Moodle', the Police Scotland online learning platform) and face-to-face classroom based training for every officer up to and including the rank of Inspector in Scotland. The face-to-face training included topics such as:

• how to engage with individuals when carrying out a stop search
• the role of unconscious bias in decision making
• powers relating to children and young people, including how to handle seizure of alcohol
• how to establish reasonable grounds and articulate reasons for a stop search (including use of scenarios)
• how to record reasonable grounds using the stop and search database.

Feedback from officers and supervisors primarily related to the online training, with only a minority giving feedback on the face-to-face training.

It is important to note that while the police officers were fairly critical of the training received, this did tend to be related to the online training platform rather than the training itself. It was felt that use of the online platform made it difficult for officers to fit the training around their other daily tasks, which invariably resulted in them rushing to complete it before the deadline or completing it outside of their standard working hours. That said, there was at least some negative feedback on the language used within the online training was also criticised, seen as overly-formal and complicated, and too reliant on "jargon" that was difficult to understand.

"It was just a Moodle but for me it doesn't work, because you are given a time limit for when you need to be done by and you're either doing it on a night shift about five o'clock in the morning when you're absolutely shattered and you're not taking anything in or you're doing it when you're rushing and you're not taking anything in"

(Police officer)

While the initial training programme included both online and face-to-face training, it was suggested that in any future training a face-to-face approach would be preferable to online, both because this would give officers a specific day and time that they had to attend, and because it would foster an environment of learning from shared experience. It was also suggested that any future training should focus as much as possible on practical, real-life examples, particularly in relation to examples of reasonable grounds of suspicion.

"It's not always ideal to maybe sit a group down and have an input, but that's what it needs, everybody needs to be able to share experiences"

(Police officer)