Consultation on a Draft Code of Practice for Stop and Search: Analysis of Responses

Analysis of consultation responses received on the draft code of practice for stop and search.

1 Introduction and policy context

1.1 Between 21 March and 15 July 2016, the Scottish Government undertook a public consultation on a draft Code of Practice ('the Code') to underpin the use of police powers to 'stop and search' in Scotland. [5] This report presents findings from the analysis of the responses to the consultation.

Policy context

1.2 The term 'stop and search' refers to the process by which the police detain and search a person who has not been arrested. Currently in Scotland there are two types of stop and search: statutory and non-statutory (or consensual). There are a number of specific laws - such as the Misuse of Drugs Act 1971 - which give the police the power to search a person in specific situations. This is known as statutory stop and search. In addition, a person can be searched with their consent, in circumstances not covered by a specific law. This is known as non-statutory, or consensual, stop and search.

1.3 The use of stop and search in Scotland has been the subject of some debate over recent years. Although the practice can be a useful tool for the police in carrying out their work, it is also a sensitive issue and it is important to strike an appropriate balance between protecting the public, detecting and preventing crime, and protecting the rights of individuals subject to stop and search procedures.

1.4 There have been a number of investigations into the use of stop and search in Scotland in recent years (undertaken by Police Scotland, Her Majesty's Inspectorate of Constabulary in Scotland, and the Scottish Police Authority), and Police Scotland have taken action to address the concerns raised. Steps taken have included carrying out a pilot exercise in Fife in 2014 focusing on improving stop and search data, and enhancing accountability and public confidence, and the publication of a Police Scotland improvement plan which takes forward the recommendations emerging from the work undertaken.

1.5 In March 2015 the Scottish Government invited an Independent Advisory Group, chaired by John Scott QC and involving experts (practitioners, policy makers and academics) from the fields of policing, law enforcement and children's rights, to consider long-term policy and practice on stop and search. The Advisory Group had a particular focus on (i) consensual stop and search and (ii) the development of a Code of Practice to underpin the use of stop and search by the police in Scotland.

1.6 The Advisory Group recommended an end to consensual stop and search, and produced a draft Code of Practice which would underpin the continuing use of statutory stop and search. The draft Code of Practice was based on the Code of Practice currently in place in England and Wales (known as PACE Code A). This was brought in by the Police and Criminal Evidence Act 1984, and refined over subsequent years.

1.7 Subsequent to the work of the Advisory Group, the Criminal Justice (Scotland) Act 2016 made several changes to the law regarding stop and search. The Act made a Code of Practice a statutory requirement; it also made provision for bringing an end to the use of non-statutory stop and search in Scotland, once a Code of Practice is in place.

1.8 The consultation issued by the Scottish Government in March 2016 follows on from the work carried out by the Independent Advisory Group which recommended that its draft Code of Practice be put out to consultation prior to adoption. It is one of two consultations arising from the work of the Advisory Group. The Advisory Group was unable to reach a consensus on whether the police should have a new statutory power to stop and search children and young people for alcohol, and they called for further consultation on this issue. This matter was the focus of a separate consultation which ran concurrently with the consultation on the draft Code of Practice. [6]

About the consultation

1.9 The consultation paper presented a brief background to stop and search powers in Scotland, steps already taken to improve the use of the tactic, and details of the work of the Independent Advisory Group on Stop and Search, along with a copy of a draft Code of Practice as produced by the Advisory Group.

1.10 The paper contained eight questions - seven two-part questions comprising a closed question with a follow-up open question seeking further comment, and one open question. [7] The questions covered: the possibility of including a statement on the purpose of the Code of Practice, the option of including sections on children and young people and adults at risk and vulnerable adults, local scrutiny, information recording with regard to section 67 searches ( i.e. those undertaken as part of the entry requirement for public events) [8] - and also invited more general views on the Code of Practice as a whole.

1.11 The consultation was available on the Scottish Government website and consultation hub, from 21 March to 15 July 2016. Respondents had the option to provide an email or online response.

1.12 In addition, the consultation paper on search powers for alcohol (see paragraph 1.8 above) encouraged people to contact the Scottish Government if they wanted someone from the Government to visit their organisation to talk about the consultation and to hear their views and / or the views of young people who they work with. Several organisations took up this offer. The Scottish Government also encouraged stakeholder organisations to carry out their own consultations with children and young people, and a number of meetings and activities took place. [9] Although the main focus of the discussion at these activities was the option of new powers on searching for alcohol, some of the meetings explicitly explored views on the Code of Practice and discussion at others also touched on issues of relevance.

About the analysis

1.13 Frequency analysis was undertaken in relation to all the closed tick-box questions in the consultation and the findings are shown in tables throughout this report. Comments made in response to open questions were analysed qualitatively to identify the main themes - i.e. reasons that respondents gave for their views; differences in views between different groups of respondents; areas requiring clarification; and any concerns raised by respondents.

1.14 The total number of respondents to this consultation is low (38), and not all respondents answered all questions. The base numbers in the individual tables range from 27 to 31. In that context, the findings presented in the tables provide an indication of the balance of opinion among those who responded to the consultation, and provide a framework for considering the qualitative comments received. They should not, however, be seen as representative of the views of any wider population. Further, it should be borne in mind that even 'common' themes identified in the qualitative analysis may only have been mentioned by a small number of respondents.

1.15 The quantitative analysis presented in the tables in the report includes a small number of imputed responses ( i.e. responses derived from comments made by respondents who did not provide an answer to the closed tick-box question itself).

1.16 The remainder of the report is structured as follows:

  • Chapter 2 presents information on the respondents and responses to the consultation.
  • Chapters 3 to 9 present the results of the analysis to the consultation questions.
  • Annexes to the report present a full list of organisational respondents ( Annex 1), and the response rates for individual questions ( Annex 2).


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