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

5. Young people and alcohol

5.1 Introduction

One of the key areas the research sought to address was to identify any potential gaps in the legislation around young people and alcohol. The lack of police powers to search young people for alcohol was one of the most contentious issues in the public consultation on stop and search. Following detailed consideration, the IAG recommended that there was insufficient evidence for the creation of new powers, but that this should be re-assessed after the CoP had been implemented.

This chapter addresses the findings from the research in relation to young people and alcohol in the context of stop and search.

5.2 Current approach to young people and alcohol

Under Section 61 of the Crime and Punishment (Scotland) Act 1997, the police have a power to seize alcohol. This allows officers to ask children and young people to hand over any alcohol where it is known or suspected that they are in possession of it in a public place. The police have no specific legislative power to search a person for alcohol, even if officers suspect them of concealing it and they have refused to surrender the alcohol. The only exception to this is at designated sporting events where the police have an alcohol search power in accordance with Section 21 of the Criminal Law (Consolidation) (Scotland) Act 1995, which enables officers to check bags and clothing as people enter the venue.

When asked about their experience of encountering young people with alcohol, police participants did not raise this as a problematic part of their duties – even though it was a relatively common one.

It appeared that police participants were following the correct protocol when it came to young people and alcohol. A number explicitly referenced the fact that they had no power to search young people for alcohol. But it was much more common for them to indirectly relay this through references to approaching young people because they were engaging in 'public' or 'visible' drinking.

"Generally, it is quite obvious – we can see them carrying it. We will ask them what it is, they will tell us and hand it over."

(Police officer)

This was also borne out through the experiences of practitioners and the young people themselves. Practitioners described the procedure much in the same way as the police, highlighting that the police were not able to search young people for alcohol and noting that this usually did not happen.

Young people, for their part, found dealing with the police when they had alcohol in their possession much less problematic than being stopped and searched. They also cited examples of situations where they were seen drinking on the street and were simply asked to hand over the alcohol in their possession, as opposed to being searched. This was seen as "no big deal" and the officers encountered were polite – although some did express disappointment that the alcohol was seized.

One officer distinguished between the different legislation at play when dealing with a young person with alcohol, as opposed to that involved when conducting stop and search. However, they also stated that the actual procedure was "just the same" as stop and search and that the young people could be searched if there were reasonable grounds. This could suggest that among at least some officers there is still confusion over whether or not they can search for alcohol. This finding was borne out to at least some extent from the findings from young people. Although less common, some did say that they had been asked to 'open their bags' when suspected of being in possession of alcohol – although their person was not searched.

The approach police took to interactions with young people they suspected were in possession of alcohol varied, and was based on the discretion of the officer and their policing skills. As with more general interactions with young people (discussed in section 5), it was the communication skills used that were thought to be key to a successful resolution of the encounter.

For the most part, interactions with young people with alcohol were thought to be straightforward by police officers and were dealt with as such. The police officer would approach the young person and ask for the alcohol to be handed over and in most scenarios the young people simply did so.

"Up here on a Friday or Saturday night, obviously you get a lot of young people going about the town with alcohol and stuff, and you hear the bottles clicking or you see the bottle through the bag. 'Right, is that alcohol?' 'Right, we're seizing it' basically - it's about communication."

(Police officer)

It was also common to highlight that in certain situations, for example if the young person was visibly drunk, it was more appropriate to approach the situation from a welfare perspective. If this approach was taken, in addition to seizing the alcohol, actions taken included getting the young person medical assistance, taking them home to their parents and completing an entry on the vulnerable persons database.

When speaking hypothetically about a situation where a young person might refuse to hand over suspected alcohol, police officers were emphatic that they would not arrest an under-age person for refusing to hand over the alcohol – even though they knew that they have the power to do so. There was a feeling that this would be contrary to the wider drive to decriminalise young people and encourage police officers to put the welfare of young people at the centre of their interactions. Instead, police said that they would either let the young people go, or take them home to their parents. Only in situations where other crimes had been committed, such as criminal damage or anti-social behaviour, would they consider arresting the young person an appropriate action to take.

5.3 Perceived gaps in legislation

The dominant view from police participants was that the guidelines on dealing with young people and alcohol were clear and this was in line with the experiences they described.

It was uncommon for police to say that they thought the guidelines could be clearer, although this view did emerge. However, when those who found the guidelines unclear were asked, they could not elaborate on what aspects needed clarity. This could suggest that this could be an issue of familiarity with the guidelines rather than a problem with the content.

There were mixed views on whether the police should have a power to search for alcohol. While there was no real objection to introducing a power to search for alcohol, there was a feeling that it was not necessarily required as the current procedure was working and it was rare for officers to encounter problematic situations. Nonetheless, it was also suggested the introduction of a power to search would help to close the 'loophole' that young people could be arrested if they refuse to hand over the alcohol they have in their possession – although it appears that this does not happen in practice. However, as the legislation stands this is a possible scenario and participants were keen that in order not to criminalise young people this did not happen.

While the young people in the research were largely not conscious that the police cannot search them for alcohol, there was feedback from practitioners that some of their clients were becoming aware that this was the case. It was thought that this knowledge, in combination with young people's more combative behaviour when they had been drinking, may lead to a greater chance of arrest and the criminalisation of young people. For this reason, practitioners also supported a specific police power to search for alcohol.

While not something encountered by police participants on a day to day basis, the issue of large scale, spontaneous events such as the event on Troon Beach was raised (see McVie, 2018 p. 69 for more detail on the incident). In these situations, thousands of young people can congregate together and a large proportion of those will be in possession of alcohol. Police are not able to search the young people and if they choose not to give up their alcohol when asked, it could in theory lead to the arrest of hundreds – something that is not logistically possible or an appropriate response to the situation.