Use of stop and search - revised Code of Practice: consultation

2. Chapter 2 - Principles governing stop and search

Principles governing stop and search

2.1 Stop and search is an operational tactic constables use when investigating, detecting and preventing crime with the aim to keep people safe and ensure the wellbeing of individuals and communities.

2.2 Stop and search situations can be dynamic and fast-moving and constables must make quick decisions based on the risks to them, the public and the person being searched. Recognising that stopping and searching members of the public is a significant intrusion into their personal liberty and privacy, all actions carried out by constables must balance a person’s rights with public safety. All stop and search activity must be:

• Legally compliant - that means in accordance with any legal duties imposed on constables, in particular under the Human Rights Act 1998 and the Equality Act 2010, as well as any requirements of the statute(s) under which the search is being conducted
• Necessary - that means that the search is required to locate a harmful item or confirm the possession of an illegal item
• Proportionate - both in the decision to carry out a stop and search and in the way in which a stop and search is conducted

2.3 A constable must not search a person, even with their consent, where no power to search is applicable. Even where a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must be in accordance with the relevant power and the provisions of this Code.

2.4 Any stop and search must be carried out in accordance with the Constable's declaration, and in particular, the following values:

• Fairness - a stop and search must be carried out fairly and impartially, and without unlawful discrimination
• Integrity - a stop and search will not be carried out in a manner which is abusive, discriminatory, or which amounts to harassment or intimidation; the purpose of the search must be genuinely to find a particular item in the person's possession; and it will reflect the principles of good conduct and personal responsibility
• Respect - a constable must ensure that, so far as is reasonably practicable, the person being searched understands why they are being stopped and searched and the procedure must be carried out with respect for individual needs, including religious and cultural values and beliefs
• Human rights - in carrying out a stop and search, constables must uphold and respect the fundamental human rights of all people and groups

2.5 Constables should also adopt trauma-informed principles, which ensure individuals are treated with compassion and safeguarded from further harm.

2.6 The Equality Act 2010 prohibits unlawful discrimination, harassment or victimisation based on protected characteristics. It is unlawful for a constable to base the decision to stop and search a person on protected characteristics. Section 149 of the Equality Act 2010 sets out the Public Sector Equality Duty, which applies to police officers, to have due regard to the need to eliminate discrimination, harassment, and victimisation. This applies to all stop and search powers, including those that do not require reasonable suspicion.

2.7 Constables must act with candour, openness, professionalism and truthfulness in all stop and search encounters. Constables must also adhere to the standards of ethical and professional conduct in the police service they represent. For example, Police Scotland officers must comply with the Police Scotland Code of Ethics which sets out the standards the public should expect of those who contribute to policing in Scotland.

Accountability and governance

2.8 Constables carrying out stop and search are fully accountable for their actions. When a constable carries out a search to which this Code applies, a record must be made unless there are exceptional circumstances which make this wholly impracticable.

2.9 All stop and search activity must be accurately recorded, monitored, and open to scrutiny with a publicly available report published annually.

2.10 Any misuse of stop and search powers is likely to be harmful to policing and lead to mistrust of the police by the local community and by the public in general.

Reasonable grounds for carrying out a stop and search

2.11 Searches are more likely to be effective, legitimate and secure public confidence when a constable's reasonable grounds for suspicion are based on a range of objective factors.

2.12 The decision to carry out a search cannot be based on personal factors alone or protected characteristics. For example a persons physical appearance, age, race, religion or clothing are not reasonable grounds for a stop and search.

Accessibility

2.13 This Code must be accessible to every constable and available to view online.

2.14 If the person to be searched does not appear to understand what is being said or what is happening, the constable must take reasonable steps to bring information regarding the situation, the person’s rights and any relevant provisions of this Code to their attention.

Right to complain

2.15 If the person being searched is dissatisfied with the actions of police officers or the standard of service then they can make a formal complaint. Information on how to make a complaint must be provided on the receipt issued by a constable following a search.