The Scottish Government is ducking its responsibilities over Stop and Search

SACC Press Release, Wednesday 1 April 2015

SACC is dismayed by the continued failure of the Scottish Government to create a clear statutory framework for Stop and Search in Scotland.

According to police figures, an astonishing 640,699 searches were carried out in Scotland in 2013/14. Scotland's population is just 5.295 million, meaning that police carried out more than one search for every 10 people.

Even more astonishingly, 70% of these searches - 449,095 searches - were outside any statutory framework, and were carried out with the supposed consent of the individuals concerned. This is, of course, a fairy-tale.

The Scottish Government's announcement yesterday that an independent advisory group will look at the issue could provide a valuable opportunity to scrutinise the dysfunctional and abusive morass into which Police Scotland has sunk. Regrettably, the Scottish Government appears instead to intend, at best, that the group will take on the responsibility for challenging the police that it dare not shoulder itself. At worst, the new group will just become a vehicle for fudge and delay.

The Scottish Government needs to introduce a simple amendment to the Criminal Justice Bill to outlaw stop and search by police except under the wide statutory powers that police already have to search people they reasonably suspect of carrying illegal items. An amendment to this effect has already been brought forward by the Liberal Democrats and could easily be adopted by the Scottish Government. The Scottish Government also needs to secure from police a moratorium on non-statutory searches until the new legislation comes into effect. Once these steps have been taken, there will be a solid basis for looking at the detail of police stop and search practice in Scotland.

Justice Secretary Michael Matheson said yesterday that he welcomed what he called "the announcement by Police Scotland today that have introduced a presumption against consensual stop and searches for all age groups."

Michael Matheson's statement has led many people to conclude that consensual (ie extra-legal) searches are dead in the water. This is far from being the case.

Michael Matheson was referring to a report by Chief Constable Stephen House, dated 30 March, which says:

"Police Scotland will continue to emphasise to officers the presumption that where a legislative power of search exists this will be used in preference to consensual stop and search."

The tacit acceptance that police currently ignore the statutory powers available to them, even where these powers are applicable, is jaw-dropping. But Stephen House's statement indicates a wish to rationalise current practice, not to change it. It does not mean that police will stop searching people in situations where they have no legal power to do so, or that they will stop relying on the fairy-tale of "consent."

On the contrary, Stephen House attempts elsewhere in the report to give a vigorous defence of the indefensible practice of extra-legal stop and search.

This practice has been a running sore in Scottish policing for a very long time. But it has been greatly exacerbated in recent years by Stephen House's insistence on having the police carry out an absurdly large number of searches.

A police search is always a breach of privacy. It is permissible in some circumstances because the right to privacy is not an absolute right under Scots, UK and international law, but has to be balanced against other needs. It is extremely difficult to understand how an individual police officer, searching a person outside any of the circumstances prescribed by law, and without any reasonable grounds for suspicion, can possibly exercise this balance.

In allowing police officers to act in this way, the Scottish Parliament and Police Scotland are almost certainly failing to meet their obligations under the Human Rights Act, and quite certainly failing to act in a spirit of respect for human rights.

Richard Haley, Chair of SACC said:

"The Scottish Government is once again trying to delay decisive action on stop and search. It's far too late for that. A report prepared for the Scottish Executive in November 2002 highlighted the belief by many police officers that it was fine to search people outside the circumstances prescribed by law. The Scottish Parliament and successive Scottish governments have been ducking the issue for more than 12 years.

It's time to put an end to the paternalism and deference that characterised Scottish public life before we had a parliament of our own. We don't need another advisory group, or another report. We need swift action to give stop and search a clear legal framework, as a first step and a pre-condition for creating a stop and search policy that meets human rights requirements.

Over 449,000 people had their rights violated by Police Scotland last year, if police figures are to be believed. That's a violation of the rights of the public, not just a violation of the rights of a few individuals. When Michael Matheson talks about a balance between protecting the public and the rights of the individual, it's plain that he doesn't understand the problem.

Nicola Sturgeon boasted at the weekend that, in the event of a minority Labour government at Westminster, SNP MPs would lend Labour their backbones. The boast would be more credible if she showed some spine in her dealings with Police Scotland."

Notes

1. Scottish Government Statement on the creation of a new advisory group on Stop and Search (31 March 2015).
2. Report by Chief Constable Stephen House on Stop and Search, for the Cabinet Secretary for Justice (30 March 2015)
3. "report prepared for the Scottish Executive in November 2002" - this refers to the report on "Police Stop and Search Among White and Minority Ethnic Young People in Scotland" by Reid Howie Associates.
4. "if police figures are to be believed" - the report by Her Majesty’s Inspectorate of Constabulary in Scotland, dated 30 March 2015, says: "we do not have confidence in the stop and search data currently held by Police Scotland. This dataset should not be relied upon to make informed decisions about future policy and practice in Scotland until an accurate baseline is established."