Following a period of significant consultation and scrutiny by an Independent Advisory Group on Stop and Search (IAGSS), a new Code of Practice (CoP) for Stop and Search in Scotland was introduced on the 11th of May 2017. The then Cabinet Secretary for Justice, Michael Matheson MSP, commissioned a twelve month review of the CoP to examine any practical issues with its implementation and to identify remaining gaps in legislative provision. The review was carried out through two research projects: a qualitative study undertaken by Ipsos Mori Scotland; and a quantitative study which is the focus of this report.
Overall, this report concluded that there was a significant reduction in the number of searches and seizures conducted within Scotland following the introduction of the Stop and Search Code of Practice (CoP). However, this reduction was part of an ongoing decline in encounters that started well before the introduction of CoP. It is almost certain that the criticism targeted at Police Scotland about the over-use of stop and search as a tactic by HMICS and the media in 2015, followed by an intense period of political and public scrutiny and the decision by the Cabinet Secretary for Justice to abolish consensual searching and introduce a CoP for stop and search, influenced the large scale reduction in encounters well before the CoP finally came into force.
This report also found a far greater proportionate reduction in police seizures of alcohol and tobacco products than searches over the two years studied in this review. The reduction in the number of seizures was around three times larger than the reduction in statutory searches, although the absolute number of searches continued to be far greater. The large decline in seizures mainly occurred in Divisions in the West of Scotland, especially Greater Glasgow. This is surprising given the historic problems of alcohol consumption and violence in western regions of Scotland, together with concerns expressed by policing representatives and other organisations in the public consultation period about the lack of a legal power to search for alcohol. This decline in the police use of seizures could not be explained by the analysis conducted for this report.
The decline in searches coincided with a significant increase in the success of search encounters. Analysis showed that this was at least partly a direct effect of the introduction of the CoP, which suggests that they are being used more effectively and with a greater standard of evidence in terms of reasonable suspicion. Positive detections increased across all search types, although searches for offensive weapons continue to be the least successful overall. Despite a large decline in the overall number of searches, the number of encounters in which an item was recovered had fallen by only a small amount, which is a further measure of the success of the CoP.
Analysis revealed considerable geographical variation in the use of search and seizure across Scotland. The number of searches and seizures was highest in the West Command Area during the twelve months prior to the introduction of the CoP, and this continued to be the case in the twelve months after. However, there was a far higher proportionate decline in both searches and, especially, seizures in the West compared to the East and North Command Areas. Patterns over time revealed substantial variation between Divisions in changing use and success of stop and search. This suggests that the new legislation and policy around stop and search may have been interpreted and adopted differently across Divisions.
The CoP introduced a requirement for police officers to issue a receipt following a search, and there was evidence that officers do this in the vast majority of cases. The most common reason for non-issue of a receipt was because the individual being searched refused to accept it or left the locus before the receipt could be issued. There was some Divisional variation in the likelihood of a receipt being issued, although very little overall difference in the reasons for non-issue of receipts. During the twelve months following the introduction of the CoP it was clear that officers had taken increasing steps to issue receipts retrospectively when they were not issued at the time. Although individuals have the right to obtain a copy of the record of their search encounter within 6 months, there were only 11 such requests in the twelve months following the introduction of the CoP.
The primary focus of this review was to consider four main concerns that were identified by the Independent Advisory Group on Stop and Search during their consultation phase. The main conclusions of the quantitative study against each of these concerns is set out below:
i. Identify potential gaps in the legislation around young people and alcohol
The police in Scotland can request that a young person surrenders alcohol to them; however, they do not have a specific legislative power to search young people for alcohol. During public consultation, this was raised as a concern amongst policing representatives who believed the abolition of consensual searching would leave them powerless to search young people in the event that they were suspected of carrying concealed alcohol, thus placing the young person, or others, at risk. They argued that existing powers to seize alcohol from young people under Section 61 of the Crime and Punishment (Scotland) Act 1997, and other alcohol byelaws, were insufficient to deal with the extent of the problem in Scotland. There was also some concern that there may be an increase in the use of arrests to deal with young people who refused to hand over alcohol, thus criminalising many young people. Others, however, argued that there was no strong evidence to suggest that an additional power to search young people for alcohol was necessary and that such a power may result in disproportionately high search rates amongst young people, which could damage relationships between young people and the police (see Murray and McVie 2016).
Section 3 of this report noted a longstanding decline in alcohol use amongst young people in Scotland, according to the Scottish Schools Adolescent Lifestyle and Substance Use Survey (Scottish Government 2016). During the twelve months following the introduction of the CoP, indicative data from the Information Services Division of the NHS showed that alcohol-related hospital admissions for all ages fell by a small, but significant, 2%. The decline for young people aged under 18 was greater, at 7%, although this was not statistically significant due to the small numbers involved. This represents a falling average of 48 to 44 admissions per month nationally. Similarly, Police Scotland management data showed that the number of alcohol-related incidents they recorded fell significantly, by 5%. The decline for young people aged under 18 was also 5%; although, again, this was insignificant due to small numbers. This represents a falling average of 194 to 184 per month nationally.
These indicative contextual data suggest that there was a small reduction in public service demand in relation to alcohol-related problems in Scotland in the twelve months following the introduction of the CoP, and that the trends amongst young people were broadly in line with wider population trends. These trends do not appear to provide any underlying behavioural explanation for a dramatic change in the police use of alcohol seizures amongst young people. Nevertheless, police use of alcohol seizures during the twelve months after the introduction of the CoP declined by 63% overall, and by 49% for incidents involving young people. The very large reduction in the use of seizures appears to be out of proportion to the much smaller reduction in alcohol-related police recorded incidents and hospital admissions, although other police incident data did suggest larger reductions in alcohol-related problems (albeit data were not available by age). In addition, the smaller proportionate reduction in seizures amongst young people does not reflect the wider trends, in which alcohol-related problems had reduced by a similar amount to, if not more than, the population as a whole. This may, however, reflect greater perceived risk of alcohol possession amongst young people on the part of the police.
The striking post-CoP decline in alcohol seizures amongst young people was almost entirely due to a change in policing activity in the West of Scotland. In particular, there was an astonishing 97% reduction in the use of seizures in the Greater Glasgow Division – an area in which youth alcohol consumption has been recognised as an issue of significant concern. Given that the number of alcohol-related incidents involving young people recorded by the police in the Greater Glasgow Division fell by only 7% following the introduction of the CoP, this large reduction in seizures cannot be explained by behavioural change or seasonal trends and suggests either a real change in policing activity that was not directly due to the introduction of the CoP or a reduction in the recording of alcohol seizures which started prior to the introduction of the CoP. It would be difficult to justify the introduction of a power of search for alcohol on the basis of these data.
It is clear that the use of alcohol seizures has a particular degree of seasonality, with sharp spikes of activity during warmer months, especially influenced by large events or social gatherings of young people. Evidence provided by Police Scotland suggests that the use and recording of alcohol seizures is manageable during routine street-based policing activities; however, it becomes more problematic during these large events both in terms of applying seizure legislation and recording activity. It is during these types of situation that a legislative power of search may be most beneficial to police officers. One option would be to create a power similar to that of Section 60 of the Criminal Justice and Public Order Act 1994, in which the power of search for alcohol would be context specific and require prior authorisation.
Arguments made prior to the introduction of the CoP that existing powers to seize alcohol from young people under Section 61 of the Crime and Punishment (Scotland) Act 1997, and other alcohol byelaws, would be insufficient to deal with the extent of the problem in Scotland appear to be largely unfounded. Unfortunately, it was impossible to determine whether there had been an increase in the use of arrests to deal with young people who refused to hand over alcohol as Police Scotland could not provide these data. It was clear, however, that statutory searching was not being used as a mechanism to indirectly search for alcohol.
ii. Identify other potential gaps in the legislation or lack of clarity in the Code of Practice
Section 65 of the Criminal Justice (Scotland) Act 2016 provides that officers may only search a person where there is an express power to do so. During the consultation period, concern was expressed about the lack of an explicit power of search in situations where no express power existed but police officers believed that a search intervention was necessary to preserve life. It is important to understand that the concern relates mainly to incidents which occur in a private place, and in circumstances where officers have no suspicion that an offence has been or will be committed. In an attempt to clarify the position, paragraph 3.4 of the Code stated that officers must take all steps necessary to protect life as stipulated under Sections 20 and 32 of the Police and Fire Reform (Scotland) Act 2012. However, some policing representatives felt that this reflected an ambiguity within the current legislation. In particular, there was concern that officers should have full reassurance to conduct searches in such extreme situations.
Section 4 of this report found that there was very little overall change in the relative distribution of statutes used to search during the twelve months before and after introduction of the CoP. A total of 34 searches were recorded as part of an intervention under Sections 20 and 32 of the Police and Fire Reform (Scotland) Act 2012 to protect life. Albeit a small number, these do represent extremely serious cases, and so this does reflect a potential issue that may need to be addressed through some further legislative change. It was not possible from this quantitative review to identify any other legislative gaps or lack of clarity in the Code of Practice (although some issues were raised in the qualitative study).
iii. Identify any increase in the use of Section 60 Criminal Justice and Public Order Act 1994
There was some concern that the abolition of non-statutory searches in Scotland could lead to an increase in the number of searches conducted under Section 60 of the Criminal Justice and Public Order Act 1994. Often known as 'no suspicion' or 'discriminatory' searches, police forces in England and Wales have come under significant criticism for conducting searches under Section 60 as it is seen as a way of widening the scope for searching while reducing the need for reasonable suspicion. Section 5 of this report found that there had been no increase in the number of Section 60 authorisations following the introduction of the CoP. There is, therefore, no evidence of attempts by Police Scotland to circumvent the CoP by creating wider opportunities for stop and search.
iv. Examine use of search involving individuals with protected characteristics
Finally, research conducted on stop and search in Scotland highlighted the disproportionate use of the tactic for dealing with children and young people (Murray 2014). This caused concern during the consultation period amongst young people themselves and amongst practitioner groups who work with young people because it is well known that negative forms of policing engagement can have a deleterious effect on young people's attitudes to and relationships with the police. In an effort to reduce unnecessary use of stop and search for children and young people, Section 7 of the new CoP provide specific guidance on the issue of searches involving children and young people, and Police Scotland rolled out a programme of face-to-face training for all officers (at Inspector level or below) aimed at improving methods of engagement with young people. The Police Scotland training also examined the issue of unconscious bias when dealing with any individuals with protected characteristics. A key aim of the quantitative review was to examine whether there were any issues relating to age, sex or ethnicity that may require further training or guidance for police officers.
Section 6 of this review provides strong evidence that the introduction of the CoP helped to reduce areas of disproportionality, and improve success rates, in terms of searches and protected characteristics. Levels of search had reduced across all age groups, all ethnic groups and for both men and women. Young people continued to be most likely to be searched, although the degree of disproportionality in terms of targeting this group declined significantly in the twelve months following the introduction of the CoP. Men continued to be more likely to be searched than women, although there was a larger rate of decline amongst men across all age groups. This was largely explained by the introduction of recording for searches conducted under Warrant, which made a greater impact on female searches as it inflated already small numbers.
Searches predominantly involved White people both before and after the introduction of the CoP, with the overall profile of searches more or less matching the population profile for Scotland. The number of searches had reduced across all ethnic groups, but the largest reductions involved people who self-defined as non-White than White. There was an increase in non-recording of ethnic group during searches following the introduction of the CoP, which was identified in the six month review report, but there was evidence that Police Scotland had taken steps to rectify the situation by issuing further guidance to officers.
There was a significant increase in positive detection rates for all age groups after the introduction of the CoP. For those aged 18 or over, the positive detection rate was virtually identical; however, positive detection rates continue to be lowest for those aged under 18. This indicates that the threshold of reasonable suspicion is still being applied less stringently and evenly amongst young people, so there remains room for improvement in conducting searches amongst this group. Searches involving females were significantly less likely to result in a positive outcome than those involving males – this was especially true for drug-related searches (including those conducted under Warrant). Strip searches (where were overwhelmingly conducted for drugs) were also significantly less positive amongst women compared to men. Detection rates had improved across all ethnic groups, especially those from Mixed or Other ethnic groups, although numbers in these groups were small.
Overall, the reduction in the number of searches following the introduction of the CoP coincided with an increase in positive outcomes across all groups with protected characteristics. Nevertheless, there continue to be signs of inequality between some groups in terms of who is searched and how successful those searches are, which could benefit from some further guidance or training.
Overall, this report suggests that the introduction of a CoP for stop and search was successful in terms of achieving a higher level of positive outcomes and a greater degree of proportionality in terms of searches by sex, age group and ethnic identity. The evidence suggests that searching in Scotland is now being conducted more effectively and with a greater standard of evidence in terms of reasonable suspicion. There remain some areas of concern, however, such as the greater use of strip searches for women and the significantly lower positive outcomes for searches involving young people. The apparent decline in alcohol seizures amongst young people in the West of Scotland – especially Greater Glasgow – may also be an issue of concern, unless it reflects a change in recording practice. In terms of recommendations for legislative change, this report found no strong evidence to support the introduction of a power to search young people for alcohol; although, there may be a case for giving Police Scotland powers to deal with large and spontaneous gatherings of young people where alcohol use causes concern for public safety. There may also be a need for some further legislative amendments to reassure officers of their powers to search where there is a concern for protection of life. It seems unlikely, however, that there is a need for a further widespread review of the use of stop and search in Scotland and that any ongoing monitoring should be conducted through normal scrutiny channels.
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