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

6. Other gaps in the legislation

6.1 Introduction

Under Section 65 of the Criminal Justice (Scotland) Act 2016, officers may only conduct searches in circumstances where they have explicit legal powers. The review therefore explored whether or not the current legislation had left significant gaps in the police's powers to stop and search, and whether this had resulted in searches that were considered justifiable by police officer but which were not covered by Section 65. This included searches to protect life, under the Police and Fire Reform (Scotland) Act 2012.

This chapter presents views on any such gaps in the legislation, or lack of clarity in the CoP, and specifically explored any gaps in relation to searches of vulnerable individuals.

6.2 Clarity and remit of current legislation

Police generally felt clear on the remit of the current legislation surrounding stop and search, and which situations fell within the remit of other pieces of legislation. That said, it was acknowledged that officers needed to have knowledge of several pieces of legislation and that any means of helping them to recall the legislation easily, such as an aide-memoire, would be welcomed.

"There are so many pieces of legislation out there. The one thing that used to be handy would be an aide-memoire at the start of our book, showing exactly what [they] were."

(Police officer)

Police officers and supervisors had not personally been involved in searches outside of Section 65, or in breach of the CoP. They therefore did not have direct experience of any conflicts between the legislation and their own justification for a search. It was noted that there had been a period where police had lacked the power to search individuals before they entered a police vehicle, but that the power to stop and search had recently been extended to include this; this was welcomed by officers who felt it was for the benefit of their safety and that of the individual.

While they had not personally been involved in searches not covered by the legislation, police and the NSSU did suggest areas where there may be, or may have been in the past, potential confusion surrounding the extent of police powers to search; these fell under two main areas.

Firstly, incidents where it may be necessary to carry out a search in order to protect life. The example was given of police being called to an incident involving an individual within a private residence who is at risk of suicide and may be concealing a weapon. The NSSU noted that this may create potential confusion around whether or not a search of that individual involves a breach of police powers. It was acknowledged, however, that the inclusion of section 3.4 of the CoP, stating "a constable must take all steps necessary to protect life" (as stipulated in Sections 20 or 32 of the Police and Fire Reform (Scotland) Act 2012), had helped to clarify that police did have the power to intervene in these types of situation.

"An officer going into that person's pockets [would have been] carrying out an unlawful act. But the Code of Practice picked that up and said nothing the code would stop an officer acting in a way for the purpose of protecting somebody's life."

(NSSU representative)

While supervisors and officers had limited experience of these situations, they also generally felt their duty to protect life took precedence over other aspects of the legislation. Where there was some uncertainty, however, was in cases where the individual may be in possession of pills or other harmful consumable substances; these would not fall under legislation relating to offensive weapons, but could still be used to inflict harm.

"I would be comfortable doing it knowing that it might not be defined in the law, but the reason for doing it was for good intention and to protect life, which is ultimately one of our main aims."

(Police supervisor)

"You maybe get someone that's suicidal and…you don't really have reasonable cause to suspect they've got a knife, but maybe they've got something else, or pills in their pocket… a bit more clarification [would be useful], because so many calls are to do with mental health."

(Police officer)

The second potential area for confusion was around the power to search for pyrotechnics. There was, again, limited direct experience of these types of searches among officers or supervisors. They felt this power would mainly be required at sports matches and that the power to search may be part of the condition of entry to the sports premises. However, it was again raised by the NSSU as a potential gap in the legislation, as officers did not have grounds to search for pyrotechnics and flares under the stop and search CoP which restricted their ability to intervene even though these items potentially posed risk of harm.

"Pyrotechnics within groups of people can cause a real threat or risk…we don't have the power to search for them, whereas if we did we could intervene early and move the potential risk of these things."

(NSSU representative)

It was noted in the six-month review that there may be potential gaps in the legislation relating to police powers to search a vehicle for offensive weapons, as this fell outside of the stop and search powers. However, this did not emerge as an issue in this research, as officers had rarely faced any lack of clarity or conflict surrounding their power in relation to vehicle. Officers said they would usually have intelligence supporting their grounds to search a vehicle, and where necessary a warrant, and that they would be justified in searching a vehicle if it was clear that there was an immediate risk of crime.

In terms of monitoring of any incidents outside of the CoP, the NSSU noted that any incidents of searches that were carried out in breach of the code, were noted within the stop and search database. Through the NSSU's monitoring of the database they can identify any searches that may not have complied with the legislation, and follow up on them accordingly. This review process involves a member of the NSSU contacting the officer who carried out the search, speaking to them to understand their rationale for carrying out a search, and then providing any guidance or advice as necessary to help address any lack of clarity about the legislative remit of the power. The NSSU report any findings from the review to the Scottish Police Authority and Scottish Government.

6.3 Searches of vulnerable individuals

Section 8 of the CoP provides additional guidance relating to searches of vulnerable adults. It states that vulnerability is most likely to be encountered in situations where a person has mental illness, personality disorder, autism or a learning disability, and outlines steps that should be taken to mitigate any potential stress for the individual.

Police officers said they often encountered people who were in vulnerable situations, including those with mental illness, substance and alcohol addiction issues and other characteristics associated with chaotic lifestyles. In terms of their approach to a stop and search among these individuals, it was stressed that reasonable grounds for suspicion would not necessarily be different when dealing with a vulnerable person. However, the overarching view was that it was essential to take each person's needs into consideration, be sensitive to any vulnerabilities, and respond accordingly. Communication was once again highlighted as an important element of the process, with officers saying they would alter the language and style of communication accordingly, or ensure that an appropriate adult was present who was capable of understanding what was happening.

"I think when it comes to mental health issues or persons with learning difficulties, yes it's a different kettle of fish, but you can't ignore the fact there are grounds there. You just have to be a bit more sensitive about it and make sure there is somebody there who does understand before you do anything."

(Police officer)

"Safety comes first if somebody is vulnerable. If you're speaking to somebody ...maybe just doesn't understand or they don't have the capacity to understand then there has got to be consideration given how to best go about responding to that."

(Police officer)

Echoing their views on searches among young people, practitioners stressed the importance of police taking a sensitive approach to searches of vulnerable individuals, both in terms of ensuring their understanding but also taking steps to minimise any distress caused to the individual during or after the encounter.

Though it was rare for police to specifically make reference to the CoP, they tended to feel comfortable with the guidance provided on how best to approach searches with vulnerable individuals. They therefore did not identify any particular gaps in the legislation in this regard. It was suggested, however, that the approach taken to these searches was based more on experience and general policing skills, rather than specifically being attributed to the CoP.