Call for police stop and search legislation

There’s been a surge of interest in stop and search on both sides of the border in recent weeks, as the Home Secretary and the Scottish Police Authority presented their respective conclusions on the use of this controversial power. Both acknowledged that the tactic can be a useful policing tool, though neither offered a glowing endorsement of current police practice. As the Home Secretary candidly observed, stop and search can be counter-productive, an enormous waste of police time and damaging to police-public relations.

In Scotland, several related themes emerged from the SPA review published last Friday, including an apparent lack of proportionality in some areas, a focus on younger age-groups, high rates of non-statutory stop and search, concerns around consent and a perceived pressure to undertake stop searches.

The SPA also noted that that they could find no evidence to support a causal relationship between stop and search rates and offending trends. The implication here is that the huge number of searches on young white boys, primarily in the West of Scotland can be viewed as disproportionate.

Disproportionately in Scotland is exacerbated by an exceptionally flexible regulatory framework. The Police and Criminal Evidence Act 1984 doesn’t extend north of the border, nor is there a statutory Code of Practice. In a nutshell, the rulebook remains to be written. Moreover, unlike other UK jurisdictions, officers can search on a non-statutory basis which is premised on a slippery ideal of consent rather than legal authority.

In the first 9 months of the single force, around 70% of recorded stop searches were non-statutory, which equates to over 366,000 searches. With non-statutory searches recorded on children as young as six years old, it’s unsurprising that the tactic has raised eyebrows, particularly in relation to the viability of informed consent.

Taking a broader overview, it seems fair to suggest that the capacity to search without reasonable suspicion has contributed to the direction of stop and search in two ways.

First, search rates have reached extraordinarily high levels. In the first nine months of the single service, the overall rate of stop and search in Scotland was 98 searches per 1000 people, compared to 31 searches per 1000 people in London.

Second, the high proportionate use of non-statutory stop and search has, in effect, lowered the overall probability of detection. Looking at the data that underpin the SPA review (helpfully published by the BBC), 16% of non-statutory searches resulted in detection, compared to 28% of statutory searches. Drilling further down, 4% of non-statutory searches for drugs resulted in detection, compared to 22% of statutory searches. Nineteen per cent of non-statutory searches for stolen property resulted in detection, compared to 49% of statutory searches. Thirty three per cent of non-statutory searches for alcohol resulted in detection, compared to 58% of statutory searches. And three per cent of non-statutory searches for offensive weapons resulted in detection, compared to 10% of statutory searches.

With non-statutory searches consistently yielding lower detection rates, is this tactic, as the Home Secretary might suggest, an enormous waste of time? It certainly seems difficult to rationalise in terms of effectiveness as measured by detection.

On the other hand, non-statutory stop and search fits with the strategy of ‘proactive’ policing. It’s an easier way of meeting the demand for numbers and KPIs (key performance indicators). Moreover, low detection rates can be read as an indicator of deterrence, as suggested by press reports publicising ‘record low’ detection rates.

To date, non-statutory stop and search has been framed as ‘part of routine engagement with the public’. Or more colloquially, as a quick ‘pat down’. But there is more at stake here. This is a quick pat down search backed by the full weight of criminal justice system. And despite guidance to the contrary, research suggests that it could be backed up by a statutory search should you refuse.

Encouragingly, the SPA review signals a new phase of serious policy and political engagement with this issue, which can, no longer be dismissed as a matter of operational policing. Because to be clear, the real issue at stake here is police legitimacy and democracy.

Put simply, police powers should be conferred by a democratically elected parliament. It’s one of the key ways in which the police are held to account in advanced democratic societies and a keystone of policing by consent. Which suggests that it now falls upon the Scottish Government to modernise and regulate stop and search practice in Scotland.

Kath Murray is a PhD candidate at the University of Edinburgh, researching police stop and search practices in Scotland. Her briefing “Non-statutory stop and search in Scotland’, SCCJR Briefing Paper 6/2014” was published on 2.6.14.