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

4. Other potential gaps in the legislation

4.1 Introduction

This section of the report examines the possibility that the introduction of the new legislation resulted in gaps around stop and search. Section 65 of the Criminal Justice (Scotland) Act 2016 provides that it is unlawful for a constable to search a person who is not in police custody unless they are doing so in accordance with either a power of search conferred in express terms by a statute or under a search warrant. 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, but who is being transported by the police under warrant or court order, or where officers believe it is necessary to do so for their care and protection, may be searched. In addition, Section 67 of the Act enables 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.

Police officers have expressed concern that the new legislation does not go far enough as it does not give officers specific power to search during situations in which action may be considered necessary to preserve life. As a result, paragraph 3.4 of the CoP was added to make it 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 statues expressly conferring power of search. This review also considered 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 provides that it is unlawful for a constable to search a person who is not in police custody unless they are doing so in accordance with either a power of search conferred in express terms by a statute or under a search warrant. Table 4.1 shows the legal statutes under which all statutory searches were conducted during the twelve months prior to and after introduction of the CoP. Although there was a fall in the number of searches overall, there was very little change in the relative distribution of searches according to statute. During both periods, the vast majority of searches were conducted under the Misuse of Drugs Act 1971. Although the number of searches conducted under the 1971 Act was 20% lower in the post-CoP period, the relative share of all searches fell by only 2%. Section 60(1) of the Civic Government (Scotland) Act 1982, used to search for stolen property, accounted for less than 10% of all searches in both periods. Only 5% of all searches involved use of the Criminal Law (Consolidation) Act 1995 to find offensive or bladed weapons. The remaining statutes were used very infrequently, although there was a 64% increase in the use of Section 47(1) of the Firearms Act 1968 to search for firearms in the post-CoP period.

Following implementation of the CoP, two new codes were added to the national Stop and Search Database. The first 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 139 searches were conducted under this legislation following the implementation of the CoP, as shown in Table 4.1. The second new code records encounters where police officers intervened on the basis of Sections 20 and/or 32 of the Police and Fire Reform (Scotland) Act 2012 to protect life, and undertook a search as part of this intervention. There were only 34 recorded searches in which officers intervened to protect life on the basis of Sections 20 and/or 32 of the 2012 Act during the twelve months after the CoP was introduced. While these numbers are small, they do reflect some of the most serious and distressing incidents dealt with by officers in the line of duty.

Table 4.1: Number of searches by legal statute used to justify search

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

4.3 Summary of section 4

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 relative distribution of statutes used to search during the twelve months before and after introduction of the Code of Practice. There was a relatively large increase in the use of Firearms Act 1968 to search for firearms (although numbers were small). In addition, officers had used the 2016 Criminal Justice (Scotland) Act to search 139 people during removal or transportation to another place; and they had conducted 34 searches as part of an intervention on the basis of Sections 20 and/or 32 of the Police and Fire Reform (Scotland) Act 2012 to protect life.