Use and sale of fireworks, and tackling the misuse of pyrotechnics: consultation

Section Two: Pyrotechnics

Tackling misuse of pyrotechnic devices

Introduction

28. This section of the consultation paper considers the use of pyrotechnic devices and specifically whether it should be an offence to carry a pyrotechnic device in a public place without reasonable excuse or lawful authority, and whether police powers should be extended to allow a stop and search provision for anyone reasonably suspected of committing the offence.

What is a pyrotechnic?

29. A pyrotechnic is a device which contains explosive substances or an explosive mixture of substances designed to produce heat, light, sound, gas or smoke or a combination of such effects through self-sustained exothermic chemical reactions. There are a wide range of differing pyrotechnics available, for example theatrical, hand held flares, distress flares and smoke devices. These devices come in a variety of coloured effects and are used for various reasons, the main use being for spectacle, theatrical special effects or distress signal purposes.

30. While pyrotechnics have legitimate uses, such as marine distress flares or theatrical special effects, they can also be used for dangerous, harmful and potentially criminal purposes. Pyrotechnics produce light, smoke and/or sound and can burn at temperatures of up to 2,500 degrees Celsius. All pyrotechnical articles are explosives.

31. We would propose to develop a definition of a "pyrotechnic article" which would be used for the purposes of a new offence and a stop and search power. We currently expect this will be similar to that in Regulation 3 of The Pyrotechnic Articles (Safety) Regulations 2015 excluding fireworks. The main difference between fireworks and pyrotechnics is that pyrotechnics can be used in much closer proximity to the public due to the more controllable nature of the product.

32. The proposed offence of being in possession of a pyrotechnic in a public place without reasonable excuse or lawful authority does not extend to fireworks. The Fireworks Act 2003 enables the police to stop and search if they have reasonable grounds of suspecting a person is in possession of fireworks in contravention of a prohibition imposed by fireworks regulations. Therefore, we do not propose to extend the related pyrotechnics stop and search powers to include fireworks. Further information can be found in the Technical Annex (Annex A).

33. If pyrotechnics are not used with caution they can cause serious health problems such as burns to people who come into contact with them (regardless of whether they have set the device off themselves or have come into contact with it through, for example, someone throwing it at them), or hearing injuries, breathing difficulties or choking, particularly among people with health conditions such as asthma.

34. Prior to the introduction of Covid restrictions, reports of the misuse of pyrotechnics (flares and smoke bombs) at events in Scotland and in the community had become more widespread and there is evidence of them having been set off at large gatherings such as concerts, music festivals, football matches and in street celebrations.

35. Misuse of these devices poses a potential safety issue for anyone who may come into contact with them including for example stewards, marshals and police who may need to intervene when pyrotechnics are being set off. There have been incidents where individuals, including children, have been injured by someone else activating a pyrotechnic or have in fact injured themselves whilst activating a pyrotechnic.

36. There have also been incidences of flares being thrown on to sport pitches, stages or towards individuals. For example a woman was scarred for life after she was severely burned by flares thrown at a Liam Gallagher concert in November 2019. Other countries have reported fatalities, including two children age 13 (Spain) and 14 (Brazil) who were killed by flares which had been thrown. This demonstrates how dangerous and volatile pyrotechnics can be when misused and when safety measures are not adhered to.

37. Concerns have therefore been raised about the perceived misuse of these devices at gatherings and the potential safety risks to members of the public, stewards and police officers who are located nearby when flares are let off.

Illegal Use of Pyrotechnics

38. In May 2019, the Scottish Government started discussions with stakeholders to identify possible actions that could be taken to tackle the issue of increased illegal pyrotechnic use and gather evidence to determine where there are gaps in the current legislation. These discussions, which were hosted by the Scottish Government, included representatives from Police Scotland, Scottish Police Federation, British Transport Police, Crown Office Procurator Fiscal Service and Scottish Government. It was established that the following legislation would apply to pyrotechnics:

• Carrying dangerous instruments or offensive weapons. The Criminal Justice and Public Order Act 1994 provides stop and search powers where police reasonably believe that people are carrying dangerous instruments or offensive weapons in any locality without good reason, and a sufficiently senior officer has authorised the use of such powers. Pyrotechnics are not deemed as "dangerous instruments" in terms of the legislation. The 1994 Act defines a dangerous instrument as a sharply pointed instrument or one with a blade. Pyrotechnic devices may be offensive weapons if that is the use which the person carrying them intends to make of them. Anything found that was reasonably suspected to be used as an offensive weapon would be seized and appropriate charges libelled. Pyrotechnics would however only be covered by this legislation if the police had reasonable grounds for suspecting that the pyrotechnic was being carried in the locality with the intention to cause injury to others, which may be hard to establish.
• Carrying of offensive weapons Section 47 of the Criminal Law (Consolidation) (Scotland) Act 1995 makes it an offence for a person to have any offensive weapon with him/her in a public place without lawful authority or reasonable excuse. Section 48 contains a stop and search power in relation to this offence. Similar to the power described above the section 47 offence will only apply where there was an intention to use the pyrotechnic as a weapon to injure others.
• Possession of a pyrotechnic article at sporting events. This is an offence under the Criminal Law (Consolidation) (Scotland) Act 1995 section 20. The 1995 Act provides the power for the police to search a person they have reasonable grounds to suspect is committing or has committed this offence. Therefore the current legislative provisions in relation to searches of persons who are entering or attempting to enter designated sporting events provide suitable powers.

39. The term 'stop and search' refers to the process by which the police stop and search without warrant a person who has not been arrested. Under section 65 of the Criminal Justice (Scotland) Act 2016 and the Code of Practice on the use of Stop and Search all such searches in Scotland must be carried out under statute. An officer cannot search a person who is not in police custody without either a specific statutory power or the express authority of a warrant, even with their consent.

40. The final stakeholder discussion concluded that a dedicated stop and search power for pyrotechnics, not limited exclusively to persons entering or attempting to enter designated sporting events, is required. This would allow the police to stop and search for the possession of pyrotechnic articles in public places and to intercept pyrotechnic devices before the person carrying them is shown to be at least attempting to gain access to a venue. Stop and search powers are generally based on reasonable suspicion of committing an offence, and it is suggested that the power here might be linked to a new offence of having a pyrotechnic article in a public place without reasonable excuse and/or lawful authority.

41. Through this consultation we aim to understand how the use of pyrotechnics is viewed by the public and whether the misuse of pyrotechnic devices requires to be backed with sufficient police powers which could only be provided through new primary legislation.

Consultation Questions

Question 20 a). Do you have concerns about pyrotechnic devices being misused?

• Yes
• No
• Unsure.

Question 20 b). Please explain your answer.

Question 21 a). Do you agree with the introduction of a new offence for being in possession of a pyrotechnic in a public place without reasonable excuse or lawful authority?

• Yes
• No
• Unsure.

Question 21 b). Please explain your answer.

Question 22 a). Do you agree that police stop and search powers should be extended to allow the police to stop and search where there is reasonable suspicion that an individual is in possession of a pyrotechnic device in a public place without a reasonable excuse?

• Yes
• No
• Unsure.

Question 22 b). Please explain your answer.

Question 22 c). Please tell us what you consider would be a reasonable excuse for possessing pyrotechnics in a public place?

Question 23 a). Do you think that police stop and search powers should be wide enough to the extent that it would allow the police to stop and search a vehicle, for example a car, bus, van or tram, where there is reasonable suspicion that there are pyrotechnic devices contained without a reasonable excuse?

• Yes
• No
• Unsure.

Question 23 b). Please explain your answer.

Question 24. The Scottish Government recognises that legislation on its own may not end the misuse of pyrotechnic devices. Please tell us if there are other actions you think that the Scottish Government could take to address this issue.

Question 25. Please tell us if you have any other comments in relation to pyrotechnics that are not covered by the other questions in this section of the consultation.

Question 26 a) Do you have any comments about, or evidence relevant to the draft Business And Regulatory Impact Assessment in relation to pyrotechnics?

• Yes
• No
• Unsure.

Question 26 b). Please explain your answer.

Question 27 a). Do you have any comments about, or evidence relevant to the draft Equality Impact Assessment in relation to pyrotechnics?

• Yes
• No
• Unsure.

Question 27 b). Please explain your answer.