The Scottish Government must legislate to control Stop and Search

Press Release from Scotland Against Criminalising Communities (SACC)
Saturday 7 February 2015

The Scottish Government has once again ducked its responsibility to deal with the uncontrolled use of stop and search by Police Scotland.

First Minister Nicola Sturgeon told the Scottish Parliament on Thursday that Chief Constable Stephen House is "considering whether the practice of non-statutory or 'consensual' stop and search should be ended." But she announced no government measures to end this controversial practice, which may very well put Scotland in breach of its obligations under the Human Rights Act and the European Convention on Human Rights.

SACC believes that the Scottish Government must take urgent steps to rectify this situation.

People in Scotland are around five times more likely than people in England and Wales to be subjected to a stop and search by police. Searches are especially prevalent in Glasgow, where police last year carried out approximately one search for every five people. This is around 10 times higher than the rate across the Metropolitan Police area (London).

The majority of searches in Scotland occur in situations that are not covered by the wide statutory powers under which police can insist on carrying out a search where they have reasonable grounds for suspicion. Instead, police claim to have received the consent of the person being searched. This is a fairy-tale. People allow themselves to be searched either because they do not understand that they have the right to refuse, or because they believe that attempting to exercise their right will have negative consequences for them.

People said by police to have "consented" to a search include young children.

Police in England and Wales have been barred from carrying out extra-legal searches on the basis of "consent" since April 2003.

The right of Scottish police to carry out extra-legal searches has not yet been tested in court, but if this were to happen it would very likely be found to be in breach of the Human Rights Act and the European Convention on Human Rights.

Professor Alan Miller, chairman of the Scottish Human Rights Commission, told BBC Scotland this week that consensual stop and searches are "almost certainly unlawful."

A report published last year by the Scottish Centre for Crime and Justice says:

"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."

According to figures obtained from the police by the BBC and released this week, Police Scotland carried out 436,288 stop and searches between January 2014 and November 2014. Police data cannot be relied on, in view of last year's admission by Chief Constable Steven House that it includes data fabricated by officers who feel under pressure from management. However, the new figures suggest a continuation of last year's intensive use of stop and search - 640,699 searches in the period March 2013 to April 2014. 70% of these 2013-2014 searches were extra-legal, according to police data.

The figures published by the BBC show that 654 children aged under 12 were searched by police in the period between January 2014 and November 2014.

Assistant Chief Constable Wayne Mawson told the Scottish Parliament's subcommittee on policing in June 2014 that extra-legal searches of children under 12 would be stopped immediately. The BBC says that since then, there have been 356 searches of children under 12, two-thirds of them extra-legal.

It appears that either Wayne Mawson misled Parliament about police intentions, or police have subsequently reneged on their commitment.

Richard Haley, Chair of SACC, said:

"Police Scotland are out of control. It appears from the latest figures that they have failed to deliver on a modest but clear promise made to the Parliament last June by a senior officer. We already know that rank and file officers have lied in response to management pressure to achieve unrealistic stop and search rates.

The First Minister announced on Thursday that the police are thinking of abandoning their scandalous practice of extra-legal stop and search. She hasn't given any indication that she intends to clarify the law in this area. She is acting like a spokesperson for the police, instead of a First Minister.

It's clear from the police track record that they cannot be left to deal with this issue by themselves. They will either drag their feet over change, or seek a new formula to allow them to continue the absurdly intensive stop and search policy to which Chief Constable Stephen House appears to be committed.

The Scottish Government has failed in its duty to the Scottish people and in its duty under the Human Rights Act and the European Convention on Human Rights. This is deeply disappointing in a Government that professes respect for human rights principles.

The resistance of Scottish police to democratic accountability and control is a legacy from the paternalistic age before Scotland had a Parliament. It has no place in 21st century Scotland."

Notes for Editors

  1. "People in Scotland are around five times more likely than people in England and Wales to be subjected to a stop and search by police": Figures provided by the BBC show 436,288 stop and searches between January 2014 and November 2014 (presumably an approx 11 month period, and presumably excluding Section 60 searches). Based on a population of 5,295,000 (2011 census), this gives a stop and search rate of 82 searches per thousand people over the January-November period, and an estimated 90 searches per thousand people in a 12-month period.

    According to the most recent data released by the UK Government for the whole of England and Wales, there were 1,006,187 searches (excluding Section 60 searches ) in the year ending March 2013. Based on a population of 56,075,900 (2011 census), this gives a stop and search rate of 18 searches per thousand people in a 12 month period. This is one fifth of the current Scottish rate. Figures for England and Wales for the 2014 period, if the recent trend continues, will probably be lower than in 2013, giving a Scottish excess a little greater than the one quoted here.

  2. "around 10 times higher than the rate across the Metropolitan Police area" - According to the BBC figures, 236 searches were conducted in Glasgow per 1000 people between January 2014 and November 2014, giving an estimated rate of 257 searches per thousand over a 12 month period. According to Metropolitan Police figures, 208992 searches were conducted in the period January to December 2014. Based on a population of 8,166,566 (2011 census), this gives a search rate of 26 per 1000 people.
  3. In England and Wales there is evidence that Stop and Search is used disproportionately against black and Asian people. Scottish police figures do no not show a comparable imbalance in Scotland.
  4. 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. Searches that the police call "consensual" or "non-statutory", and we call "extra-legal" are searches that are conducted outside these situations.
  5. "Police in England and Wales have been barred from carrying out extra-legal searches on the basis of 'consent' since April 2003" - when the Police and Criminal Evidence Act 1984 (Codes of Practice) (Statutory Powers of Stop and Search) Order 2002 came into force. HM Inspectorate of Constabulary has found that Police in England and Wales continue (in 27% of all searches) to search people without reasonable grounds for suspicion, but this is recognised as being illegal.
  6. Report by the Scottish Centre for crime and justice: Stop and Search in Scotland, by Kath Murray, University of Edinburgh, January 2014
  7. "Police data cannot be relied on" - Police Scotland have not published an audit of their 2013-2014 figures in response to the response to the revelation (see The Herald, 23 March 2014) that some data was fabricated. It is therefore impossible to estimate the extent to which figures have been distorted by the fabrication