1.1 Background to the Code of Practice
Despite controversy over the use of police stop and search in many jurisdictions, including England, there was very little consideration given to the use of the tactic in Scotland until relatively recently. Concerns about the use of stop and search in Scotland were first raised by a doctoral study carried out by Dr Kath Murray from the University of Edinburgh. She identified a number of worrying aspects including: few guidelines and very little transparency or accountability over the use of search as a tactic; exceptionally high search rates compared to other jurisdictions; and highly disproportionate rates of search amongst children and young people (Murray 2014). Murray's research also raised legal and ethical issues about the extensive use of 'non-statutory' searches being conducted in Scotland which were based on 'consent' rather than any legislative powers.
Following a period of significant media and political debate on the topic of stop and search, Her Majesty's Inspectorate of Constabulary in Scotland conducted an audit which concluded that a widespread review of stop and search was necessary and recommended that a police Code of Practice be introduced (HMICS 2015). In response, the then Cabinet Secretary for Justice, Michael Matheson MSP, established an Independent Advisory Group on Stop and Search (IAGSS) to determine what legislative and governance changes were necessary to ensure that stop and search was conducted in a fair, effective and proportionate manner. He also asked the IAGSS to consider the need for a Code of Practice.
Taking into account a public consultation exercise and an extensive review of the evidence, the IAGSS reported its findings to the Cabinet Secretary in August 2015. It recommended that the abolition of non-statutory search and the introduction of a statutory Code of Practice to provide guidance on the use of stop and search. The IAGSS also recommended that data on stop and search should be published on a regular basis by Police Scotland and that all of the changes to stop and search should be subject to a detailed implementation and training plan. The IAGSS were unable to make recommendations on the introduction of new legislation to cover searching of young people for alcohol (for which there is currently no statutory power) and recommended that further consultation be conducted on this subject.
All of the IAGSS recommendations were accepted by the Cabinet Secretary and new legislative provisions governing the use of stop and search were introduced in Section 65 of the Criminal Justice (Scotland) Act 2016. The Act included provision for a Code of Practice for Stop and Search in Scotland, which came into force on 11th May 2017.
1.2 Reviewing the Code of Practice
The Cabinet Secretary for Justice requested that the implementation of the Code of Practice be reviewed after twelve months, as it was felt that this length of time would allow the Code to become embedded in policing practice and achieve the level of change within Police Scotland that was expected. However, an interim review was also requested for the six month stage to provide an early indication of whether the Code of Practice was achieving its aims and if there were any issues with the practical implementation of the Code, such as gaps in legislative provision around searches and seizures that needed further consideration. The six month review was also viewed as an opportunity to identify specific issues that could be examined within the wider scope of the twelve month review. A six month interim report was published in February 2018. Covering the period from 1st June to 30th November 2017, it set out preliminary findings based primarily on analysis of statistical data from the Police Scotland stop and search database as well as some more narrative evidence from a police 'call for evidence' (see McVie 2018).
The six month review found that the introduction of the Code had not made a tremendous impact on policing practice, as organisational change had already started long before May 2017. Nevertheless, there had been a substantial reduction in encounters during the first six months of implementation, most especially in the West of Scotland where searches and seizures were highest. As a result, the rate of positive search outcomes had increased, which indicated that searches were being applied more effectively and with a greater degree of reasonable suspicion. Police had not resorted to using other legislative powers as a means to continue searching suspect populations and, while there was still some disproportionality in the use of search amongst some groups (e.g. young people), this had greatly reduced. Alcohol seizures had reduced much more than expected, especially in the West of Scotland, which was surprising given calls by the police and other groups that a power of search for alcohol should be introduced. The six month review set out 11 recommendations for further investigation in the twelve month review.
The twelve month review was separated into two research studies. The first was an update of the six month review, focusing on the available statistical data; while the second was a qualitative study involving interviews and focus groups with police officers, young people and a range of other practitioners. The IAGSS determined that this mixed methods research exercise would provide all the evidence necessary to make any further recommendations to the Cabinet Secretary for Justice about the legislative powers of search and the CoP in Scotland.
This report sets out the findings from the quantitative research. The findings from the qualitative study is published in a separate report (Ipsos Mori Scotland 2019). In addition, Police Scotland has published its own review into the operationalisation of the CoP which sets out findings from the NSSU database and feedback from officers (Police Scotland 2019). To fully understand the impact of the implementation of the new Code of Practice, the findings of this report should be read in conjunction with the qualitative study and the Police Scotland report.
1.3 Evidence used in the review
Like the six month review, the quantitative research conducted for the twelve month review was mainly based on analysis of statistical data provided by Police Scotland from the NSSU Stop and Search Database which holds a record of all searches and seizures conducted in Scotland. In order to provide some wider context around alcohol-related problems that may have had an impact on the number of seizures in Scotland, data was also provided by Police Scotland from the Storm Unity Database on the recording of alcohol-related incidents and detections; and from the Information Services Division (ISD) of NHS National Services Scotland on the number of hospital admissions involving young people. All analyses were subject to statistical testing and, unless otherwise stated, any differences reported in this review are significant at the 95% confidence level.
The twelve month review covered the period from 1st June 2016 to 31st May 2018 i.e. a full twelve months before and after the implementation of the Code of Practice so that comparisons can be made between the two periods. In addition, for the sake of understanding patterns of continuous change, monthly analysis for the year prior to the introduction of the Code and the year after is provided, where appropriate.
1.4 Scope of the twelve month review and report structure
This report begins by setting out some of the key changes that occurred as a result of the introduction of the Code of Practice. This includes changes in the number and rate of stop and searches and the use of seizures to recover alcohol and other illicit substances, changes in the positive detection rate for searches, and variation over time in the use of searches across different geographical areas (including police Command Areas and Divisions). It also provides a descriptive analysis of some new data that have been collected since the introduction of the code on strip searches and the issue of receipts following searches.
The remainder of the report focuses on four key areas of concern about the Code of Practice and associated legislation that were raised during the IAGSS consultation phase by police representatives and other stakeholder groups. Some stakeholders questioned whether the new legislative provisions and the Code of Practice adequately ensured that policing practice would not be unduly restricted in its efforts to keep people safe in Scotland. There were concerns that, in the absence of non-statutory search, police officers might start to increase their reliance on other forms of legislation. In particular, concerns were also raised about the lack of a specific power of search for alcohol and the impact this may have on criminalising young people for alcohol possession. And, having observed significant disproportionality in the use of stop and search, especially against young white males (Murray 2014), stakeholders also expressed a need to ensure that the tactic was not used unfairly against those with protected characteristics. Taking account of these concerns, the scope of the twelve month review covers four main areas, as detailed below.
i. Identify potential gaps in the legislation around young people and alcohol
The lack of a police power to search young people for alcohol was one of the most contentious issues in the public consultation on Stop and Search conducted in 2015. In particular, policing representatives were concerned that 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 were insufficient to deal with the extent of the problem in Scotland. 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). It was also noted that the power to search for alcohol is not available for officers in England and Wales (although it is available to PCSOs).
The IAGSS report stated that there was insufficient evidence to support the creation of a new legislative power to search children for alcohol at that time, but recommended that the situation be reviewed after the Code of Practice had been in place for a period of time. The six month interim review found that the number of seizures of alcohol had declined substantially, across all age groups, especially in the West of Scotland where alcohol related problems were perceived to be most acute. It was not possible to determine the reason for this, so a recommendation was made that this be investigated in more detail during the twelve month review. Section 3 of this report provides information on the number and nature of incidents dealt with by police that involve young people and alcohol and further considers whether there is any evidence to suggest that the lack of a power to search for alcohol is problematic. The review also looks at the wider context of alcohol related concerns, including trends in alcohol use and hospital admissions for young people under the influence of alcohol.
ii. Identify other potential gaps in the legislation or lack of clarity in the Code of Practice
The wording of Section 65 of the Criminal Justice (Scotland) Act 2016 states that officers may only search a person who is not in custody "in accordance with a power of search conferred in express terms by an enactment, or under the authority of a warrant expressly conferring a power of search". In response to the IAGSS consultation, some police officers expressed concern that there was no explicit power of search in situations where police officers believed intervention was necessary to preserve life. As a result, paragraph 3.4 of the Code was added to make it clear that officers must take all steps necessary to protect life. The six month review found that only a small number of searches were conducted on the basis of protecting life, and recommended that this be examined in more detail by the qualitative study in the twelve month review.
Section 4 of this report examines whether the legislation has left any significant gaps or ambiguities in the powers of police officers to stop and search. In particular, it looks again at the number of searches that were considered justifiable by police officers but which were not explicitly covered by Section 65 of the Criminal Justice (Scotland) Act 2016. This includes interventions carried out on the basis of Sections 20 and 32 of the Police and Fire Reform (Scotland) Act 2012 to protect life. Lack of clarity in the Code of Practice is considered within the qualitative research.
iii. Identify any increase in the use of Section 60 Criminal Justice and Public Order Act 1994
Some stakeholders expressed concern that the phasing out of non-statutory searches may lead to increased use of so-called 'no suspicion' searches by Police Scotland under Section 60 of the Criminal Justice and Public Order Act 1994. The six month review found that there had been no increase in the use of Section 60; however, the twelve month review examined again whether there was any increase in the number of authorisations for, or change in the profile of, searches conducted under Section 60. This is reported in Section 5 of the report.
iv. Examine use of search involving individuals with protected characteristics
Concern was expressed during the public consultation on stop and search about the disproportionate searching of children and young people, and on the mechanisms of policing engagement which can have a negative effect on young people and their attitudes towards the police. Section 7 of the new CoP specifically addressed the issue of searches involving children and young people, and Police Scotland provided training for all officers aimed at improving methods of engagement with young people. The training also examined the issue of unconscious bias when dealing with any individuals with protected characteristics. The six month review found that there was still some disproportionate searching of young people, and that positive outcomes were lower amongst this group; however, it found no particular disproportionality in terms of search or seizure by sex or ethnic group.
Section 6 of the twelve month review provides an update on the impact of the CoP by examining any changes in the profile of searches and whether rates of search appeared to be disproportionately high and detection rates disproportionately low in respect of any group with protected characteristics, especially children and young people. In addition, Section 7 offers a more detailed analysis of whether certain protected characteristics – and other factors relating to the nature of the search itself - were significantly associated with a positive search, and whether the introduction of the CoP made any additional difference to improving search outcomes in Scotland.
Section 8 of this report draws the key conclusions from the review findings and offers some points for consideration by the IAGSS in drawing up its final report to the Cabinet Secretary for Justice.
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