Stop and Search in Scotland - Review is not fit for purpose

Press Release from Scotland Against Criminalising Communities (SACC)
Saturday 31 May 2014

The Scottish Police Authority's review of Stop and Search, published yesterday, reveals a police force out of control and a police authority unwilling to do anything meaningful about it. The review makes no attempt to tackle questions that have been raised about the reliability of police figures. It is not fit for purpose and should not have been approved at yesterday's public board meeting in Glasgow. SACC is recommending 4 urgent steps to deal with the problem.

Stop and search rates in Scotland appear to be astoundingly high - half a million for our population of 5 million over a 9-month period from April to December 2013, according to figures released in January.

Richard Haley, Chair of SACC, said:

"The review published by the SPA is grossly unfit for purpose. It does not deal with the fact that police officers are said to have lied in their records of searches. It does not question the overall strategy that appears to have led to roughly one search for every 10 people in Scotland over a 9-month period. It makes no mention at all of human rights legislation. It is sloppy in its treatment of legal issues. It recommends an increase in the information that police gather about us.

Police Scotland are out of control and the Scottish Police Authority evidently does not intend to do anything about it.:

Much of the abuse occurs because police are allowed to search people outside any legal framework, based on a fairy-tale that an individual has consented to this. The problem could be solved by a simple adjustment to the legislation, that Holyrood could introduce very quickly. MSPs need to act on this urgently."

Chief Constable Stephen House has previously told journalists that some stop and search records had been fabricated by police officers, presumably because they felt under pressure to report more searches. The SPA review avoids any direct mention of this problem, but states that:

"There is anecdotal evidence from officers and staff associations that stop and search numbers may be inaccurate because of misunderstanding of recording standards."

The review reproduces police figures released in January without making any attempt to assess the scale of mis-reporting. It offers no evidence that the mis-reporting is minor. It is therefore not fit for purpose. It is very difficult to take any of the conclusions of the report seriously, or to understand why it was approved for release.

According to the January police figures, 70% of searches in Scotland are carried out on what is described as a "non-statutory" basis. This means that police do not have the legal authority to carry out a search, but proceed anyway on the basis that an individual has consented to the search. SACC believes that anyone searched by police is likely to feel under such pressure that they cannot give meaningful consent.

Police in England and Wales are prohibited by law from carrying out searches on this basis. In is unclear whether these searches - which are in any case unacceptable - are permissible under UK and European human rights law. The SPA review does not address this issue.

However, it does note that: "The majority of police officers interviewed agreed that, in their view, many of those who are searched on a non-statutory basis may not be aware that they have the right to decline."

An SPA representative speaking at Friday's meeting expressed particular concern over the issue of consent in non-statutory searches of children under 10 years old. According to police figures, 223 children aged 9 and under were searched between April and December 2013. 76% of these searches were non-statutory.

The review recommends that: "Police Scotland should ensure that those to be searched on a non-statutory basis are aware of their right to decline."

The review sets out a list of the key legal provisions that relate to statutory searches but, rather oddly, omits Section 60 of the Criminal Justice and Public Order Act. Section 60 searches can be authorised in a specified location for a period of 24 hours (which may be extended) and allows police to carry out searches for a weapon without any requirement for reasonable suspicion. Section 60 searches are sometimes authorised on demonstrations and protests.

The review states that: "Where a search is conducted on a statutory basis, individuals are required to give their details to officers." The legal basis for this statement is unclear. Even where a legal requirement to provide a name and address exists, the requirement does not extend to all the details (age, ethnicity etc) mentioned in the review. SACC's understanding is that the requirement does not apply at all to searches under Section 60 of the Criminal Justice and Public Order Act.

The review states that: "Police Scotland should ensure the recorded details of individuals searched and information about those who do not consent to non-statutory search, are also captured in the stop and search database."

This is perhaps intended to reduce the risk of mis-recording by police officers. But the effect will be that information about innocent members of the public will be recorded in the police database.

Media reports have suggested that police officers are told they must achieve a quota of searches. The review states: "There is evidence that officers perceive a pressure to conduct searches, despite key messages by the Chief Constable and senior officers that there are no numerical targets placed on divisions or individuals."

In this climate, any measures that make it harder for officers to fabricate search records will increase the likelihood that officers put pressure on members of the public to "consent" to searches.

SACC recommends that the following steps should be undertaken as a matter of urgency:

1. A quantitative assessment should be made of the extent of mis-recording by police officers of searches over the period April-December 2013, and a corrected estimate of searches over this period should be released. Until this is done, no conclusions can safely be drawn from police stop and search figures.
2. The Scottish Parliament should introduce legislation to prohibit the police from carrying out searches except where they have explicit statutory powers to do so. This could be along similar lines to the Police and Criminal Evidence Act 1984 (Codes of Practice) (Statutory Powers of Stop and Search) Order 2002, applicable south of the border. It would bring clarity to an area in which police practice in Scotland may be at odds with the obligations of the police under the Human Rights Act and the European Convention on Human Rights. And it would mean that people in Scotland enjoy no less protection from potential police abuse than people in England and Wales.
3. Consideration should be given to introducing a mandatory system for recording searches, designed to provide meaningful information about police practice with minimal impact on the privacy of individuals who are searched. One solution would be for officers to complete a simple record of the search, on paper, and provide the individual searched with a copy. The record would include the name of the officer, the location at which the search was carried and the reason for the search. Inclusion of the name, or other details, of the person searched would not be mandatory.
4. There should be an investigation into intelligence-gathering and data-recording in connection with stop and search. A key aim of the investigation should be to produce recommendations to ensure that the protection given to the privacy of people in Scotland meets or exceeds the requirements of the European Convention on Human Rights, and that no increase in the volume of information gathered compared with past practice occurs without proper parliamentary scrutiny.

Notes For Editors

1. The "Scrutiny Review - Police Scotland's Stop and Search Policy and Practice", published on Friday 30 May, is available at: Scrutiny Task Group Report (pdf document)
2. Chief Constable Stephen House admitted in an interview published in the Sunday Herald that some stop and search records had been "made up": Police Chief admits to fake Stop and Search figures
3. SACC's initial response to the publication in January 2014 of police stop and search figures for the period April-December 2013: Stop and Search in Scotland is a Human Rights Violation
4. A report published in January by the Scottish Centre for Crime and Justice recommends 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" - Stop and Search in Scotland