Aims of the 12-month review
The statutory Code of Practice (CoP) governing police use of stop and search was enacted in Part 2 of the Criminal Justice (Scotland) Act 2016, and came into operation in May 2017. Following a six-month interim review of the CoP, conducted by Professor Susan McVie, it was recommended that the 12-month review should examine evidence on how effectively the CoP was operating, with a particular focus on the following areas:
- identifying any potential gaps in the legislation around young people and alcohol
- identifying any other potential gaps in the legislation or lack of clarity in the CoP
- searches of individuals with protected characteristics.
The review was carried out using a qualitative approach, with five groups of participants: police officers, police supervisors, representatives from the Police Scotland National Stop and Search Unit (NSSU), young people aged 16-19 who had witnessed or experienced a stop and search since the CoP was introduced, and practitioners working with young people or other vulnerable groups that were more likely than average to have experienced a stop search.
To allow for a focussed, in-depth exploration of experiences and perceptions of stop and search, a targeted case study approach was taken. Participants were selected from three areas across Scotland, specifically chosen due to the high rates of stop and search in the area. The chosen case study areas were: Peterhead and Fraserburgh; Falkirk; and Southside Central (the Govanhill area) in Glasgow.
This review was carried out using a qualitative approach. Qualitative samples are generally small, and are designed to ensure a range of different views and experiences are captured. It is not appropriate given the number of interviews conducted to draw conclusions from qualitative data about the prevalence of particular views or experiences nor is it appropriate to extrapolate these views to all police officers, across all divisions within Scotland.
The stop and search procedure
- Feedback from police participants indicated that the key stages of the stop and search procedure had remained largely unchanged since the introduction of the CoP. The main exceptions to this were the issuing of receipts and entering details into the stop and search database, with police raising few concerns about these changes.
- Police stressed that one of the key stages of the procedure was the establishment of reasonable grounds for suspicion. While all officers were conscious of the requirement to establish reasonable grounds for suspicion, some felt this restricted their ability to search individuals in certain circumstances, particularly since the cessation of non-statutory consensual searches.
- Generally, officers felt that guidance on reasonable grounds was clear and they felt confident using their judgement on how to apply the test in practice. However, there was a sense that the test for reasonable grounds was primarily based on the individual judgement of each officer, and that the CoP could not be prescriptive about what those grounds were.
- Young people, for their part, were generally negative about their experience of being stopped and searched, particularly three key elements of the procedure: the way police spoke to them; the public nature of the search which caused them to feel embarrassed; and the justification for the search itself which they tended to say was unfair and unwarranted. Such views tended to be framed within negative overall opinions of the police, either as a result of past personal experiences or more deep-rooted attitudes towards police in general.
Volume of use and outcomes from stop and search
- Among the NSSU and other police participants, it was widely perceived that there had been a reduction in the number of overall stop searches in Scotland over time. It was noted that this change in approach had been observed in advance of the implementation of the CoP, and particularly since the cessation of the non-statutory consensual searches. The impact of this cessation, and associated reduction in stop searches, had been more clearly felt in the West than in the North or East.
- In terms of police views on the extent to which stop and search was used, opinions varied between those who felt it was used as much as it should be, to those who felt it was under-used. Among those who felt it was not used enough, there was a perception that the requirement for all searches to be statutory-based could create a degree of caution around using the power. This caution could be compounded by a fear about future ramifications for the officers in question if their justification for the search might later be viewed as unfounded.
- In terms of young people's views, several felt that stop and search was over-used, and perceived it to be targeted towards people of their age group. This view was supported by practitioners working with young people.
- Two of the key aims of stop and search are to help prevent and detect crime; police gave mixed views on the effectiveness of stop and search in achieving these aims. Where searches had resulted in the recovery of an item, this had the direct impact of detecting and solving the relevant crime and increasing public safety by removing the prohibited item from the individual. However, police found it more difficult to say whether or not stop and search had deterred individuals from carrying out criminal behaviour.
Searches of individuals with protected characteristics
- From a police perspective, there was no discernible difference in the rate of searches of children and young people since the introduction of the CoP. However, in the West it was noted that the rate of these searches had decreased since the cessation of non-statutory searches.
- Police largely felt confident in their approach to searching children and young people, though stressed the importance of communicating in an appropriate way and managing the situation in order to minimise any potential conflict or distress for the young person.
- In terms of the guidance available about searches of children and young people, police had mixed views, with some feeling that it did not go far enough in providing specific advice on how to engage with individuals of this age group.
- Young people were generally negative about their experience of being stopped and searched, with some feeling they were "picked on" and targeted by the police, a sentiment that was supported by practitioners.
Young people and alcohol
- Searching of young people for alcohol did not emerge as a particular issue in the current review. This was true both of police and young people who participated in the research.
- Police were largely aware that young people and alcohol did not fall within the remit of a stop and search procedure, and that they did not actually have a power to search young people that they suspected of having alcohol. Rather than feeling conflicted or unclear of their grounds when encountering young people with alcohol, they instead relied on their discretion and their policing skills to manage the situation. Invariably, this resulted in the young person surrendering the alcohol, therefore removing the need for an arrest to be made.
- Young people, for their part, found dealing with the police when they had alcohol in their possession much less problematic than being stopped and searched. They also cited examples of situations where they were seen drinking on the street and were simply asked to hand over the alcohol in their possession, as opposed to being searched.
- The dominant view from police participants was that the guidelines on dealing with young people and alcohol were clear and this was in line with the experiences they described. That said, there was a sense, albeit not a particular emphatic one, that the power to search for alcohol would help to close the potential "loophole" that young people could be arrested if they refuse to hand over alcohol.
Other gaps in the legislation
- The research explored whether or not the current legislation had left significant gaps in the police's powers to stop and search, and whether this had resulted in searches being carried out that were considered justifiable by officer, but not covered by legislative powers. Potential concern over these gaps were not, however, borne out in this research.
- No examples were given of searches having been carried out outside of Section 65 of the Criminal Justice (Scotland) Act 2016, or in breach of the CoP. Where potential gaps in legislation were noted, these were in relation to powers to carry out a search of someone in private property when there was a need to protect life and to search for pyrotechnics; though actual experience of these scenarios was limited.
- While there was concern that, prior to the addition of paragraph 3.4 of the Code of Practice, police may have been restricted from searching an individual in private premises where someone was at risk of hurting themselves or someone else, officers were aware they now had the power to carry out a search for the purpose of protecting life (under the Police and Fire Reform (Scotland) Act 2012) and felt that this would take precedence, allowing them to intervene in these situations as needed. With respect to pyrotechnics, experience of this was again limited, though it was noted that police were without a power to search individuals for these items and that power to do so could prevent potential harm being caused.
- In relation to dealing with vulnerable individuals, police felt satisfied with the guidance available on how to manage these situations, and did not identify any particular gaps in the legislation in this regard. It was suggested, however, that the approach taken to these searches was based more on experience and general policing skills, rather than specifically being attributed to the CoP.
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