Kath Murray is an SCCJR research associate at the University of Edinburgh.
After a barrage of negative headlines, political spats and recording cock-ups, the ability of police officers in Scotland to stop and search people without legal authority or reasonable suspicion looks likely to be axed. On balance, I’d suggest that this is a good thing. This is a vague, intrusive power which lacks legal safeguards, is used disproportionately against young people, is significantly less likely to result in detection than its statutory counterparts and has been denounced by the Scottish Human Rights Commissioner.
Faced with the loss of this exceptionally flexible tactic, the Police Scotland Executive are looking to introduce stop and search powers for alcohol, on the grounds that there is a gap in the legislation.
So is the argument founded? Here are some considerations.
First, the police in Scotland have statutory confiscation powers in relation to underage drinking in public. Under section 61 of the Crime and Punishment (Scotland) Act 1997, if the police have reasonable grounds to suspect that a person under 18 is in possession of alcohol in a public place, they can require the person to surrender the alcohol, and dispose of it, for example, down the nearest drain. Failure to comply is an offence and may lead to arrest. Section 61 does not extend to the power of search. However, as Professor James Chalmers has observed, this limitation was purposefully put in place to avoid conflict between young people and the police.
Second, there is no robust evidence to support the notion of a gap in the legislation. Both non-statutory stop searches for alcohol and section 61 confiscations are recorded as alcohol stop searches, in effect, lumped together. This means there’s no way of knowing how many of these stop searches for alcohol were in fact section 61 confiscations, carried out under existing legislation. Is there a gap? The short answer is we don’t know.
Third, alcohol is not illegal. If the aim of stop and search is to detect wrongdoing and prevent crime, then there is no justification for these powers. As John Carnochan, retired director of the Violence Reduction Unit argues, it makes better sense to direct policing and other resources towards off-sales; to those who sell or give alcohol to underage children.
“Licensing boards could do a better job. They appear to issue licences to sell alcohol with very little regard to the impact on communities. Some streets have three off-sales. Why?
Of course, these streets are not in Bearsden or Morningside. And, strangely, the kids in these areas don’t get stopped and searched very often either.”
Fourth, there is the thorny question of what ‘reasonable suspicion’ for under-age possession of alcohol looks like: teenager in possession of a bag?
Fifth, and most importantly, the introduction of search powers for alcohol risks cancelling out the main advantage of abolishing non-statutory stop and search: an end to high-volume stop and search.
The furore over non-statutory stop and search has focused on the misuse of a ‘consent’ based power against young children who don’t have the capacity to give consent. Yet these searches are relatively few compared to the volume of stop searches directed towards teenagers. Between January and November 2014, the police recorded approximately 450 non-statutory searches on children aged 11 and under. Whilst the figure is worrying, it seems more problematic that over 91,000 non-statutory stop searches were recorded in relation to young people aged between 14 and 18 in the same period.
The ability to search people without legal authority or reasonable suspicion – together with a performance-driven style of policing, and a lack of clarity as to the purpose of the tactic – has underpinned the extraordinary rise of stop and search in Scotland. It has resulted in some of the most vulnerable sectors of society being disproportionately targeted: the same kids being searched, week in, week out – in some instances more than once a day – and young people being drawn into the criminal justice system for very minor offences. It’s a sledgehammer to crack a nut which is at odds with Scotland’s welfarist approach to youth justice.
The introduction of statutory stop and search powers for alcohol risks prolonging the unnecessary use of these intrusive powers. As Carnochan observes, there are more constructive and engaging ways to police our communities.
The abolition of non-statutory stop and search signals a positive move in this direction. Replacing one informal stop and search power with a more formal power arguably misses the point.