The loose rules at the heart of Scotland’s stop and search problem need tightened

There’s an awful lot of it going on in Scotland. Alf Melin, CC BY-SA

As police inspector Nick Glynn commented earlier this week, most discussions on the subject of stop and search begin with something like, “stop and search is an essential crime fighting tool”. This prevents people from hearing anything else on the subject, effectively closing the debate.

It’s an important observation and it’s one we need to be mindful of in Scotland, where the debate on stop and search is in its infancy. To be clear, the fact that stop and search can detect and prevent crime is not in question here. But there are larger questions around this tactic, beginning with the sheer scale with which it is deployed north of the border. Between April and December 2013, the search rate in Scotland was 98 searches per 1,000 people in the population, compared to 31 searches per 1,000 in London.

In Scotland, the use of stop and search is largely unregulated. The Police and Criminal Evidence Act 1984 does not extend up here, nor is there an equivalent to PACE Code A, which sets best practice for stop and search in England and Wales. The home secretary may be throwing the rulebook at forces in England and Wales at the moment, but in Scotland there’s no rulebook to throw.

Step forward

Having said that, the publication of the Scottish Police Authority (SPA) scrutiny review on stop and search last Friday marked an important shift in the debate north of the border. It was a sign of long overdue political engagement and a clear acknowledgement that the use of stop and search in Scotland is problematic – something that was not the case when I published findings comparing Scotland with other jurisdictions earlier in the year.

Importantly, the SPA review highlighted the extensive use of non-statutory stop and search in Scotland. Under the statutory search powers conferred by legislation in Scotland, the police can stop and search people where they have reasonable grounds for suspecting certain types of criminal activity, such as possession of drugs. But beyond these statutory powers, police in Scotland can also search people on more uncertain grounds so long as they have verbal consent - a hazy idea if ever there was one.

This controversial and exceptionally flexible policing tool was prohibited further south more than a decade ago. It does not require reasonable suspicion, nor are officers required to inform people that they can refuse a search.

Undemocratic powers

The tactic also goes against the commonly held expectation that police powers in advanced democracies should be conferred by elected governments. Of the 519,213 stop searches undertaken in Scotland between April and December 2013, approximately 70% were non-statutory. That’s more than 366,000 searches carried out without statutory authority or reasonable suspicion within a nine-month period.

While the use of non-statutory stop and search has been justified as a less adversarial policing approach, it raises a number of concerns in relation to the absence of codification, a lack of legal rights, and more generally how young people are policed in some parts of Scotland. As the SPA review notes, non-statutory searches are biased towards younger age groups, whose capacity to provide consent seems tenuous at best, particularly with searches falling on children as young as six.

Non-statutory searches are also significantly less likely to result in crime detection than statutory searches. Between April and December 2013, 16% of non-statutory searches resulted in detection (overwhelmingly as a result of alcohol searches), compared to 28% of statutory searches.

While this disparity raises questions as to the purpose of the tactic, it’s worth noting that stop and search in Scotland, like England and Wales, has been wrapped up in a target culture, with the number of searches set either as a numerical target or key performance indicator over the last decade. Put simply, the non-statutory option provides an easier way of increasing the numbers.

UK similarities – and differences

More broadly, the conversation on stop and search in Scotland differs to that in England and Wales. In addition to regulatory differences, the social demographics of stop and search in Scotland are different, with searches falling overwhelmingly on white teenage boys in deprived neighbourhoods. Unlike England, stop and search in Scotland has not been politicised until recently, which may explain why it has been allowed to continue unchecked.

The fundamental issues are the same, though, namely the risk of unwarranted searches (so-called disproportionality) and the potentially damaging impact on people’s trust and confidence in the police. The use of stop and search matters and it needs to survive the current media scrum. The point is especially salient in Scotland, where political debate is in its early stages and the policy agenda over policing not fully established – particularly when the unified Police Scotland is barely a year old.

As useful as stop and search can be, it is also a controversial power that goes to heart of the fragile balance between police powers and individual freedom. As such, it should be handled carefully. With this sense of gravity in mind, Police Scotland and the Scottish government’s response to the unfolding debate in the weeks and months ahead could be critical.

Specifically, Scottish policing needs to engage with questions in relation to when searches are warranted and the ways in which young people are policed, and these should be enshrined in a code that makes people’s rights clearer and makes lines less blurred. And the Scottish government needs to address the uncomfortable fact that most stop searches in Scotland lack statutory authority.