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

7. Chapter 7 - Conduct of searches - additional considerations where a child or young person is involved

7.1 This section of the Code is designed to offer constables assistance in recognising and understanding the unique needs of children and young people in relation to stop and search.

Safeguarding and promoting the wellbeing of the child

7.2 This section does not replace any requirements placed on constables elsewhere in the Code. Rather, it provides additional guidance and suggests ways in which constables can tailor their approach towards children and young people.

7.3 For the purposes of this Code, children and young people are defined as those being under the age of 18. Where a constable believes a person to be under the age of 18, but they are unwilling or unable to provide their age, the constable should proceed as if the person is under 18.

7.4 In taking a decision to search a child or a young person, a constable must treat the need to safeguard and promote the wellbeing of that child or young person as a primary consideration. Once a decision has been made to search a child, then the search should be planned in terms of how it will proceed, where it will take place, who will be present and how this will be communicated with the child.

7.5 Where a constable believes it to be more harmful to a child or young person to carry out a search than not, then the search should not proceed or be paused until a responsible adult can be present (where this is practicable and the child or young person wishes this to happen). Constables should carefully consider and balance the child’s wellbeing with the operational circumstances, and any risks to the person, the officer, or others, before determining whether it is necessary and proportionate to proceed.

7.6 Constables’ actions should be compatible with the child or young person’s human rights. This Code has been designed to comply with the UN Convention on the Rights of the Child.^[1] In their considerations of the conduct of searches where a child or young person is involved, constables should be cognisant of Article 3 of the United Nations Convention on the Rights of the Child (UNCRC) which states that:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

7.7 It is also consistent with the Scottish Government’s GIRFEC (Getting It Right for Every Child) approach. While GIRFEC is primarily focused on children and young people under 18, it extends to age 26 in specific circumstances, such as care-experienced young people, young adults with additional support needs and youth justice and transitions. The approach ensures that young adults are not abruptly cut off from support and that their wellbeing continues to be a priority during key life transitions.

7.8 Constables should have an awareness of how the minimum age of criminal responsibility (12 years and over) might affect their interactions with children and young people. For example, when responding to a child or young person’s question about the potential outcome of a search, constables should be prepared to provide the appropriate response, based on whether the child or young person will (or will not) be held criminally responsible for their actions.

7.9 As is explained in Chapter 4, some stop and search powers do not depend on the person concerned being suspected of committing an offence in relation to the object of the search. A child or a child’s pram may also be used to conceal an item on behalf of an adult. A constable who has reasonable grounds to suspect that a child or young person is in innocent possession of an item is empowered to search, and may stop and search the child or young person. Constables should ensure that such searches are carried out in such a way as to minimise distress to the child or young person.

7.10 Where a constable believes a search is necessary, they should be aware of the inherent power imbalance that exists between a constable and a child or young person and how this may affect their interactions with them. It should not be assumed, for example, that because a child or young person is compliant and/or silent, that they are fully comfortable with a search being carried out. Equally, if a child or young person appears to be acting unreasonably, the root of such behaviour may be in fear or confusion.

7.11 Constables should be aware that, on occasion, children and young people may display behaviour which arouses suspicion of wrong-doing, but which is in fact related to a communication impairment, vulnerability or additional learning support need. This may include gesturing, shouting or avoiding eye contact. When a search of a child or a young person is being considered, a constable should make efforts to determine what additional support they might require to participate in a search. Constables should bear in mind that a person with such a disability may have difficulty articulating the nature of that disability or what additional support they might require to participate in a search. Constables should bear in mind that a person with such a disability may have difficulty articulating the nature of that disability or what support they need.

7.12 As outlined in Chapter 5, constables may engage with members of the public as part of their duties. When engaging with children or young people, constables should consider the potential negative impact of such interactions. This should be carefully balanced with the best interests of the child.

7.13 Constables should use age-appropriate terms when engaging with children and young people and avoid the use of technical or legal language unless required to do so by law. For example, where a constable is required to state the statutory basis for a search, then they should also be prepared to explain this in terms the child or young person can understand. Constables should be aware that not all children of the same age will have the same level of understanding and, where practicable, should allow time for the child or young person to ask questions before a search begins.

7.14 Constables should be mindful of adultification - a bias where children and young people, especially from marginalised communities, are perceived and treated as older or more culpable than they are. This can lead to disproportionate suspicion and failure to recognise their vulnerability and rights. Constables should always consider the young person’s age, developmental stage, and potential safeguarding needs before initiating a stop and search.

7.15 Constables should be aware that the status of a child or young person, such as looked after or care experienced, with previous or current experience of the criminal justice system, asylum seekers or from an ethnic minority group, can be relevant to how such people engage with constables. For example, they may find it more difficult to engage with the police as a result of previous trauma. When engaging a child or young person, constables should be sensitive about whether and how they ask questions about a person’s status, bearing in mind that some looked after and care experienced children and young people can regard questions about their status as stigmatising, and also that their peers may be unaware of their status.

7.16 Children or young people who have experienced abuse may also react strongly to the prospect of being searched, particularly if they believe that the search is likely to involve strip-searching or intimate searching. The extent of the search should be made clear by the constable prior to the search commencing, and the use of any protective equipment to be worn or used by the constable explained.

7.17 When considering a search of a child or young person, a constable should attempt to minimise any embarrassment they might feel. This might include, for example, carrying out a search discreetly and away from a peer group. Where practicable, a constable should involve the child or young person in considering where the search should take place. A constable should not assume that places considered suitable for adults will be where a child or a young person would feel most at ease.

7.18 Where a search takes place and no item is found (a negative search) and the child or young person has provided their name, address and date of birth, a constable should clearly explain how the information will be stored, the length of time it will be kept and the purposes for which it may be used.

Informing a parent and/or guardian

7.19 Consideration should be given as to whether or not the child’s parent or guardian should be informed that a search has taken place. However, in doing so, constables should consider whether informing a child or a young person’s parents or care-giver might inadvertently suggest that their child has been involved in wrongdoing, when they have not.

7.20 In deciding whether or not to inform a parent or guardian, constables should consider: the age of the child or young person; the circumstances in which the stop and search took place; any views expressed by the child or young person; and any perceived ongoing risk to the child or young person and/or others.

7.21 Constables should also be aware that some children and young people may be placed at increased risk by their parents being notified of a search. This would include, for example, a child or young person living in a household where there is a history of domestic abuse.

Searches of adults in the presence of children

7.22 As well as being subject to a search, children and young people may also be witnesses to searches. Where an adult in the company of a child is being searched, constables should be aware of the effect such a search may have on them. For younger children, witnessing something they do not understand or being parted from their parent or care-giver for the duration of the search can be particularly upsetting. Care should be taken to ensure that the child is reassured and that any separation from the parent or care-giver is either avoided or kept to an absolute minimum.

Seizure of alcohol for children and young people

7.23 There is currently no specific statutory power that legally authorises a police constable to conduct a physical search of a young person for alcohol under existing stop and search powers. However, police can require young people to surrender alcohol if it is suspected they are consuming it, which must be grounded in observable facts, such as seeing the alcohol or witnessing its consumption. A seizure occurs when alcohol is surrendered by a person to the police using statutory provisions or is removed from a person in pursuance of an alcohol byelaw, where no physical search of the person takes place or prior to any search.