Stop and Search in Scotland is a human rights violation

Press Release from Scotland Against Criminalising Communities (SACC)

SACC is alarmed by figures released by Scottish Police last week, which show that they carried out more than half a million stop and searches between April and December 2013. Worse still, police say that 70% of these stop and searches were not carried out under the statutory powers available to them. They claim that in these cases they had the "consent" of the people involved and therefore did not need statutory authority.

We would welcome any legal challenge brought by victims of non-statutory stop and searches, and we would like to see the public putting more pressure on the Scottish Government to bring stop and search in Scotland under proper legal control, as it is in England and Wales.

People invited by police to agree to a search are unlikely to feel that they have any real choice. We do not believe that there is any reliable way to ensure that consent in these circumstances is meaningful.

Extra-legal stop and search is a longstanding practice of Scottish police and in our view it is a serious abuse of power. The new figures released by the police show that it is even more widespread than we had supposed. A report published this month by the Scottish Centre for Crime and Justice confirms the picture, saying that between 2005 and 2010, 72% to 74% of recorded searches were classed as non-statutory.

Police in Scotland have powers under a variety of legislation to stop and search people whom they reasonably suspect of being in possession of certain items, including drugs, offensive weapons, bladed or pointed items, firearms, stolen property or, at sporting events, additional items such as alcohol or fireworks.

They can also stop and search people without any requirement for reasonable suspicion in areas where prior authorisation has been given under Section 60 of the Criminal Justice and Public Order Act, or under Section 47a of the Terrorism Act 2000. SACC believes that stop and searches should be exclusively carried out within this legislative framework, and we find it very surprising that the police or anyone else should think otherwise.

Non-statutory stop and search has been prohibited in England and Wales since 2003 and it is a disgrace that it continues to be a routine part of policing in Scotland.

The powers available to police appear to be quite generous. But if the Scottish Government believes these powers to be inadequate, it should draft fresh legislation and put it before the Parliament for debate.

The power of police forces throughout the UK to stop and search people without reasonable suspicion under Section 44 of the Terrorism Act 2000 was removed in 2010 as a result of a ruling against the British Government by the European Court of Human Rights. In SACC's view, the current search practices of Scottish police violate people's rights in comparable ways to searches under the Terrorism Act. The recent report by the Scottish Centre for Crime and Justice says that:

"Non-statutory stop and search also raises concerns in relation to Articles 5, 8 and 14 of the Human Rights Act, 1998, and the right to liberty, privacy and non-discrimination respectively."

SACC calls on the Scottish Government to act now to uphold its commitment to human rights by prohibiting extra-legal stop and searches. People in Scotland should not have to wait years for a European Court judgment to make them safe from police abuse. Richard Haley, Chair of SACC said:

"What the police call "consensual" stop and searches I would call illegal.

"Police have no power to require people to allow themselves to be searched except under specific circumstances set out in the law. But people approached by the police will usually believe that they have no real choice but to comply. From their perspective, there is nothing 'consensual' about a search.

"Scottish police are disregarding the law and are trying to justify their action by pointing to reductions in some other forms of crime. But they cannot show that the improvements are related to their tactics. And they have themselves, on their own admission, carried out around 360,000 acts that potentially breach human rights law in the name of crime reduction.

"I would like to see people who are searched outside the law getting in touch with their lawyers and taking legal action against the police. They would have strong grounds to challenge police action under the European Convention on Human Rights.

"Until the police are beaten in court, I fear they will continue to bully people into 'consensual' searches.

"But it doesn't need to come to that. I would much prefer to see the Scottish Government proactively uphold the rights of people in Scotland by taking steps to stop the police acting outside the law."

Notes

• In a press release dated 15 January 2014, Scottish Police say "across the country there was a total of 519,213 stop and searches between April and December 2013." A note included in the press release circulated by the police, but absent from the version published on the police website, says: "more than 70% of the stop and searches carried out were consensual, with around 28.5% conducted under the use of legislation."
• The report "Stop and Search in Scotland: an evaluation of police practice" by Kath Murray (University of Edinburgh) was published by the Scottish Centre for Crime and Justice earlier this month. One of its recommendations is that "the use of non-statutory stop and search raises concerns in relation to procedural protection, consent, proportionality and human rights. It is recommended that this practice is phased out. The use of stop and search should be underpinned by legislation"
• Non-statutory stop and search is prohibited in England and Wales under the Police and Criminal Evidence Act 1984 (Codes of Practice) (Statutory Powers of Stop and Search) Order 2002