New code to ban consensual searches as children and vulnerable given special billing

Police stop-and-search powers must be ‘necessary, proportionate and lawful’, according to a new code of practice published by the Scottish government.

The code, due to come into force in May, is being introduced following concerns over the number of people being searched without a legal basis.

If approved by MSPs, it will put an end to the practice of “consensual searches” which has courted controversy over recent years.

The number of stop-and-searches by Police Scotland officers has fallen by more than 90 per cent since 2013/14 when the scale of their use was first highlighted.

Ministers asked an advisory group of experts – led by John Scott QC – to draft the code after it emerged hundreds of children under the age of 12 were being subjected to consensual stop searches.

Specific guidance on stop-and-search of children and vulnerable adults was added to the code following feedback from the public.

Scottish Justice Secretary Michael Matheson said that while stop and search is a valuable tool in combating crime, there must be a “balance between protecting the public and recognising the rights of individuals”.

He said the new code is “finding that balance and maintaining the trust between the police and the public”, adding: “People’s views about when and how stop and search should be used have been integral to the shaping of the new code.
“With this new code we will ensure stop and search is carried out with the fairness, integrity, respect and accountability that we expect from our police officers in all of their duties.”

Assistant Chief Constable Mark Williams said Police Scotland had made “real progress” on the issue, and “very much welcomed” the new guidelines, adding that officers are being trained in advance of its introduction.

The new code states that stopping and searching members of the public is a “significant intrusion into their personal liberty and privacy” and must therefore be done for a reason.

This means that the officer must have a “reasonable suspicion” based on “facts, information and/or intelligence”. It states the search must be required to “locate a harmful item or confirm the possession of an illegal item”, and in every case an officer must “balance the rights of the individual against the perceived benefit of the search”.

The code makes clear the person’s physical appearance, clothing, “generalisations or stereotypical images” or record of previous convictions cannot be used alone as a reason for a search. Officers will not be allowed to search someone based purely on their age, race or gender.

It also contains specific guidance on stop and search of children, including the presumption a search will not take place if it appears the child lacks the capacity to understand what it may involve or why it is necessary.
The code also sets out the recording requirements for searches.

The dramatic decline of stop and searches can be seen in figures release earlier this month that show 888 consensual searches and 20,665 statutory searches were conducted by Police Scotland between the beginning of April and end of September last year.

This compares with 450,173 consensual searches and 192,470 statutory searches in 2013/14.

The force was criticised by opposition politicians for an “industrial scale” use of stop and search in the past.
Former Justice Secretary Kenny MacAskill defended the use of consensual and statutory searches by officers in 2014.

He described them as “one tactic among many police use to cut crime, and Police Scotland’s positive results so far suggest this is working”.

His replacement, Michael Matheson, announced in September 2015 that the force would phase out consensual stop and searches but argued officers would “still be able to carry out their duties effectively”.

The Scottish Government announced last November that there is not enough evidence to support creating a police power to search children for alcohol at this time. The situation will be re-assessed after the code has been in force for 12 months.

Two plain English guides to the new code, including one aimed specifically at children, will be published online ahead of it taking effect.

The code’s architect, Mr Scott, said that the force has come “a very long way” on stop and search since September 2015.

“The code has been substantially revised thanks to responses in the formal consultation process and the contribution of others in the last few months: leading academics; relevant organisations dealing with children, young people and those with specific vulnerabilities; several government departments; and officers of the National Stop and Search Unit,” he said.

A Scottish Government spokesperson said: “The Criminal Justice (Scotland) Act, passed unanimously by the Scottish Parliament, has already legislated for the end of non-statutory or ‘consensual’, stop and search when the code of practice comes into force later this year.

“Stop and search can be a valuable tool for combating crime, but the right balance must be reached between protecting the public and rights of individuals.

“We have consulted widely, and listened to the views of the expert Advisory Group, in preparing this code of practice.”