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

4. Chapter 4 - Legal basis for carrying out stop and search

Reasonable grounds for suspicion

4.1 Reasonable grounds for suspicion is the legal test that a constable must satisfy before they can stop and detain a person to carry out a search under almost all statutory provisions. The usual requirement is a reasonable suspicion that the person has committed, is committing, or is about to commit a particular crime, or is in possession of a prohibited article.

4.2 The test must be applied to the particular circumstances in each case and is in two parts. First, the constable must have formed a genuine suspicion in their own mind that they are likely to find the object for which the search power being exercised allows them to search. Second, the suspicion must be reasonable. Reasonable grounds for suspicion must be based on facts, intelligence or information which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts, intelligence or information.

4.3 Such intelligence might include a description from a member of the public or other officers describing:

• a person who has been seen carrying such an article or a vehicle in which such an article has been seen
• crimes committed in relation to which such an article would constitute relevant evidence, for example, property stolen by theft or housebreaking; an offensive weapon or a bladed or sharply pointed article used to assault or threaten someone; or an article used to cause criminal damage to property

4.4 Personal factors alone can never support reasonable grounds for suspicion. This includes a person's physical appearance with regard to the relevant protected characteristics set out in the Equality Act 2010, (age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation); a person's clothing or general appearance; generalisations or stereotypical images that certain categories of people are more likely to be involved in criminal activity; the fact that a person has any previous convictions.

4.5 However, reasonable suspicion can be supported by intelligence that might include a description of a person suspected of carrying an article for which there is a power of search. Such a description may refer to a person's physical appearance. Information relating to a person's previous convictions or pending cases may be relevant in certain circumstances, for example where prior behaviour, in combination with other information or intelligence, provides reasonable grounds of suspicion for a search.

4.6 Reasonable suspicion may also exist without specific information or intelligence and on the basis of the behaviour of a person. In such circumstances a constable must be able to explain, with reference to specific aspects of the person's behaviour or conduct which they have observed, why they formed that opinion. A constable should always be alert to the possibility of innocent explanations for apparently suspicious behaviour.

Questioning to decide whether to carry out a search

4.7 Constables have many encounters with members of the public which do not involve detaining people against their will. Constables do not require any statutory power to speak to a member of the public. There is no power for constables to stop or detain a member of the public in order to find grounds for a search. If reasonable grounds for suspicion emerge during such an encounter, a constable may detain the person to search them. Reasonable grounds for suspicion cannot be provided retrospectively by such questioning during a person's detention, or by refusal to answer any questions asked.

4.8 If, as a result of questioning the person before a search, or of other circumstances which come to the attention of the constable, there ceases to be reasonable grounds for suspecting that an article of a kind for which there is a power to stop and search is being carried, no search may take place. In the absence of any other lawful power to detain the person, they are free to leave at will and must be told that.

Searches not requiring reasonable grounds for suspicion

4.9 There are occasions where reasonable grounds for suspicion are not required prior to a search taking place:

• section 60, Criminal Justice and Public Order Act 1994
• section 66, Criminal Justice (Scotland) Act 2016
• section 67, Criminal Justice (Scotland) Act 2016

Searches authorised under section 60 of the Criminal Justice and Public Order Act 1994

4.10 The powers under section 60 are separate from and additional to the normal stop and search powers which require reasonable grounds for suspicion.

4.11 Section 60 of the Criminal Justice and Public Order Act 1994 allows for searches to be carried out in a particular locality, for a specific limited period of time, where an authorising officer believes that incidents involving serious violence may take place or that persons are carrying dangerous instruments or offensive weapons in that locality without good reason. This power applies to all individuals within that locality, including children.

4.12 The 1994 Act also lays down various steps which must be taken in relation to use of section 60 powers. The legislation is to be authorised for a specified period not exceeding 24 hours. The period of authorisation can continue for a further 24 hours where circumstances detailed in the legislation are met.

4.13 Where an authorising officer authorises any operation under section 60, they must, where practicable, inform relevant members of the community about the authorisation, both before and after any relevant action. The public should be informed of the purpose and outcomes of each section 60 operation including the nature of the power, the authorisation, and the fact that it has been given. It is important for monitoring purposes to specify the time period for which authority is given for exercising the power.

4.14 Although the powers in section 60 provide that a constable in uniform may stop any person or vehicle and make any search they see fit whether or not they have grounds for suspecting that the person or vehicle is carrying weapons or articles of the relevant kind, the selection of persons and vehicles under section 60 to be stopped and, if appropriate, searched should reflect an objective assessment of the nature of the incident or weapon in question and the individuals and vehicles thought likely to be associated with that incident or those weapons.

4.15 When selecting persons and vehicles to be stopped in response to a specific threat or incident, constables must not discriminate unlawfully against anyone on the grounds of any of the relevant protected characteristics set out in the Equality Act 2010.

4.16 Section 60(4A) of the Criminal Justice and Public Order Act 1994 also provides a power to officers in uniform to require a person to remove any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing their identity.

4.17 This power can only be used if an authorisation given under section 60 is in force. Officers must ensure an appropriate balance between powers exercised under section 60(4A) and the need to ensure respect for individuals, bearing in mind that some individuals wear items as a legitimate expression of their identity, and not with a view to concealing their identity for a criminal purpose, for example for cultural or religious reasons.

Searches authorised under section 66 of the Criminal Justice (Scotland) Act 2016

4.18 Under the powers in section 66 of the Criminal Justice (Scotland) Act 2016 a constable may search a person who is being taken, or is to be taken, from one place to another. The purpose of a search under this section is to ensure that the person is not in possession of any item or substance that could cause harm to them or someone else. The exercise of these powers does not depend on the person concerned being suspected of a crime.

Searches authorised under section 67 of the Criminal Justice (Scotland) Act 2016

4.19 Section 67 of the Criminal Justice (Scotland) Act 2016 gives constables power to search a person who is seeking to enter or attend, or who has entered or is attending a relevant event or premises where the person has consented to the search as a condition of entry imposed by the occupier or organiser. The purpose of a search under this section is to ensure the health, safety or security of people on the premises or at the event.

Searches of persons not suspected of an offence

4.20 The exercise of some stop and search powers depends on the likelihood that the person searched is in possession of an item for which they may be searched. It does not always depend on the person concerned being suspected of committing an offence in relation to the object of the search.

4.21 Innocent possession means that the person does not have the knowledge that they are carrying an unlawful item. Ordinarily such knowledge is required before arrest can be considered.

Powers to search persons in the exercise of a power to search premises

4.22 The following powers to search premises also authorise the search of a person, not under arrest, who is found on the premises during the course of the search:

a) section 49B of the Criminal Law (Consolidation) (Scotland) Act 1995 under which a constable may enter school premises and search the premises and any person on those premises for any bladed or pointed article or offensive weapon

b) under a warrant issued under section 23(3) of the Misuse of Drugs Act 1971, to search premises for drugs or documents but only if the warrant specifically authorises the search of persons found on the premises

c) under a search warrant or order issued under paragraphs 22, 31 and 28 of Schedule 5 of the Terrorism Act 2000, to search premises and any person found there for material likely to be of substantial value to a terrorist investigation

d) under a warrant issued under section 52 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, to search any premises and any person found there for: evidence of an offence under that Act; illegally taken salmon or trout; or illegal fishing equipment

e) under a warrant issued under Schedule 2: Part 2 (paragraphs 18-30) and schedule 11 of the National Security Act 2023, to search for and to seize evidence as part of UK national security investigations

4.23 Before the power under section 49B of the Criminal Law (Consolidation) (Scotland) Act 1995 may be exercised, the constable must have reasonable grounds to suspect that an offence under section 49A of that Act (having a bladed or pointed article or offensive weapon on school premises) has been or is being committed.

4.24 A warrant to search premises and persons found therein may be issued under section 23(3) of the Misuse of Drugs Act 1971 if there are reasonable grounds to suspect that controlled drugs or certain documents are in the possession of a person on the premises.

4.25 Searches of a person authorised under a warrant do not require separate grounds in addition to those used to obtain the warrant. However, it is still necessary to ensure that the selection and treatment of those searched under these powers is based upon objective factors connected with the search of the premises, and not upon personal prejudice or relevant protected characteristics.