Stop and Search - The Code of Practice PDF

OFFICIAL Unit 8 Lesson 1...

OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Learning Aim: The learner will be able to explain the practice of stop and search practices, and the Code of Practice on the exercise, by Constables, of powers of Stop and Search of the person in Scotland Learning Outcomes: Introduction Stop and Search is an essential and effective On successful completion of the lesson, policing tactic in the prevention, investigation students will be able to:- and detection of crime. In Scotland, Stop and Search is governed by a Code of Practice 1. Define a Stop and Search (pg. 2) which ensures that all searches are carried out in a manner that is proportionate, legal, 2. Explain the Code of Practice on the use of accountable, necessary and ethical, ensuring stop and search (pg. 2-3) that an individual’s rights are upheld in accordance with the Human Rights Act 1998 and the Equalities Act 2010. 3. Outline recordable and non-recordable All searches must be conducted using stop search (pg. 4) statutory powers and recorded on the National Stop and Search database. 4. Detail when a Care and Welfare search would be conducted (pg. 4-6) 5. Explain reasonable grounds for a search (pg. 6-9) 6. Explain the impact of stop and search on members of the public and the community (pg. 9) 7. Explain what you must do when conducting a search and recording stop and search activity (pg.10-15) 8. Explain the requirement for a person to surrender certain items (pg. 18-19) 1 th Amended 29 February 2024 v.4 OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Definition of a Stop and Search “A stop and search is one conducted by a police officer in the course of their duties where a person who is not in police custody is searched using a specific statutory provision or in accordance with a search warrant issued by a court in Scotland.” What is Stop Search? The Police Scotland Stop and Search Standard Operating Procedure (SOP) refers to the stop and search of a person or of a person’s immediate possessions when an officer:- A. Requests a person to open their mouth/hands B. Opens a bag in their possession C. Turns out a person’s pockets D. Conducts a physical (non-intimate) search of body /clothing E. Requests a person to carry out actions described at B and C above. In effect, it involves any situation where an officer searches for an item which is not on open display or readily visible. Positive Stop and Search A positive stop and search is when an item is recovered where possession of same implies criminality on the part of the person being searched or any other or where an item has been recovered which is potentially harmful. The Code of Practice on the use of Stop and Search A Code of Practice on the Exercise by Constables of Powers of Stop and Search of the Person in Scotland came into effect on 11 May 2017. It introduced clear guidance on the operational use of stop and search across the country and ensures that Police Scotland’s Code of Ethics: Integrity, Fairness, Respect and Human Rights, are at the very centre of an officer’s decision to search a person. It is essential that the use of stop and search is always appropriate, in accordance with the law and both necessary and proportionate. 2 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice This is because the use of stop and search intrudes into people’s personal liberty and privacy. Applying the Code The Code of Practice applies to:- A. All stops and searches of the person who is not in police custody carried out pursuant to a statutory power; and B. Searches of the person carried out in accordance with a search warrant issued by a court in Scotland This Code does not apply to:- Searches of persons in custody Searches of persons under arrest Searches of vehicles and vessels that do not also involve a search of a person Searches of premises that do not also involve a search of a person Searches under Schedule 7 of the Terrorism Act 2000 (Which are governed by a separate code) Searches of persons and vehicles in specified locations authorised under section 47A of the Terrorism Act 2000 (which are governed by a separate Code) Professional Standards PS Constables must not search a person, even if they are prepared to submit to a search voluntarily, where no statutory power to search is applicable, and they have no warrant to do so. Note:- Notwithstanding the above, a Constable must take all steps necessary to protect life. 3 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Recordable and Non-Recordable Searches Recordable Stop and Search Must be recorded on the National Stop and Search Database A recordable stop and search is any stop and search, with the exception of condition of entry searches (Section 67 of the Criminal Justice (Scotland) Act 2016) or Schedule 7 of the Terrorism Act 2000 (which is governed by a different Code of Practice). Appendix A highlights the commonly used powers of search. These will be discussed in more detail at the appropriate points during the course. Searching a Person as a Condition of Entry Section 67 of the Criminal Justice (Scotland) Act 2016 allows officers to search a person (not in police custody) where they are seeking to enter / attend or have entered / attended a relevant premises or event which are subject to a condition of entry by the event organiser that the person consents to a search. This would most likely apply to football matches, music events like ‘TRNSMT’ etc. Whilst a person does not have to consent to a search in such circumstances, they are not likely to gain entry unless they consent to a search. The purpose of searches are for public safety at premises or events. Positive engagement will ensure individuals understand why they are being asked to consent to a search. Note:- This category of search is not recordable on the Stop and Search database. Care and Welfare Searches There may be circumstances where an officer may need to search an individual but there is no suspicion of criminality on the part of the person being searched. In these circumstances the reason an officer is carrying out the search is for the Care and Welfare of the individual or for the Protection of Life. Searches of this type, although not ‘traditional’ stop and searches must still be recorded on the National Stop and Search Database and the individual given a receipt in line with the Code of Practice. 4 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Removal of a Person (S.66 Criminal Justice (Scotland) Act 2016) 1. A person who is not in police custody may be searched by a Constable while the person is to be, or is being, taken to or from any place:- a. by virtue of any enactment, warrant or court order requiring or permitting the Constable to do so, or b. in circumstances in which the Constable believes that it is necessary to do so with respect to the care or protection of the person. 2. A search under this section is to be carried out for the purpose of ensuring that the person is not in, or does not remain in, possession of any item or substance that could cause harm to the person or someone else. 3. Anything seized by a Constable in the course of a search carried out under this section may be retained by the Constable. The use of the Section 66 search power is recorded on the National Stop and Search Database and the person searched issued a stop and search receipt. Protection of Life (S.20 & 32 Police & Fire Reform (Scotland) Act 2012) This is NOT a specific power of search however it is the statutory obligation and justification to search in these circumstances when no statutory power of search applies S20 of the Police and Fire Reform (Scotland) Act 2012 It is the duty of a Constable to prevent and detect crime, to maintain order, to protect life and property S32 of the Police and Fire Reform (Scotland) Act 2012 The main purpose of policing is to improve the safety and well-being of persons, localities and communities in Scotland. 5 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Where an officer conducts a search (where no specific statutory power of search exists), under the overarching principles of Section 20 or 32 of the Police and Fire Reform (Scotland) Act 2012, as part of taking all steps necessary to protect life, they must record the full details of the search in their notebook and highlight their actions to a supervisor and make a record on the database Examples of when an officer may choose to search an individual for the purposes of protecting life may be:- The individual is incapacitated through illness or serious injury and the officer carries out the search to establish further information about the individual, for example, medical information, identification documents etc. Where a suicidal or self-harming individual is searched to ensure they have nothing further in their possession that they may harm themselves with. This is not an exhaustive list and it is up to the searching officer to justify searching a person without a specific statutory power. That being said, officers should not hesitate to search any individual if immediate intervention is required for the purposes of protecting life. Where an officer conducts a search in these circumstances (even where no specific statutory search power exists) the person searched will be issued a Stop and Search Receipt and a record of the search will be made on the National Stop and Search Database. Reasonable Grounds for a Search Reasonable grounds for suspicion is the legal test which a constable must satisfy before they can stop and detain a person to carry out a search under a statutory power. Reasonable grounds are the basis for an officers’ suspicion by reference to relevant information about, or some specific behaviour by, the person concerned. 6 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice The Legal Test The 2 part legal test that must be applied to the particular circumstances in each case is:- 1. The constable must have formed a genuine suspicion in their own mind that they are likely to find the object for which the search power being exercised allows them to search; and 2. The suspicion that the object will be found must be reasonable. Note:- The test does not require belief or certainty regarding possession of a prohibited item, merely suspicion based on reasonable grounds. It does not mean that an officer has to be right. What is Reasonable? Reasonable means:- 1. That there must be an objective basis for that suspicion based on facts, information and/or intelligence; and, 2. The facts, information and /or intelligence must be relevant to the likelihood that the object in question will be found; and, 3. A reasonable person would be entitled to reach the same conclusion based on the same facts and information and/or intelligence. What is NOT Reasonable? The following cannot be used alone as the reason for stopping and searching any individual:- a) A person’s physical appearance with regard to the relevant protected characteristics set out in the Equality Act 2010, section 149, i.e. age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation b) A person’s clothing or general appearance c) Generalisations or stereotypical images that certain categories of people are more likely to be involved in criminal activity. d) The fact that a person has any previous convictions. 7 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Note:- Reasonable suspicion can be supported by information or intelligence which provides a description of a person suspected of carrying an article for which there is a power to search. Applying the Legal Test When deciding whether you have reasonable grounds to stop and search a person, consider the following: Does (a) the relevant information and/or (b) observed behaviour indicate that the person at this time is in possession of an article to which a power of search applies? Relevant Information Relevant information should be accurate and current and relate to an article for which there is a power of search. For example this could include: Reports from witnesses or members of the public reporting that a person has been seen carrying such an article or Information from your briefing that a person carries such articles at specific times in specific places. Reports of crimes committed in relation to which such an article would constitute relevant evidence. For example, property stolen in a theft (including by housebreaking) or an offensive weapon or bladed or sharply pointed article used to assault or threaten someone. Observed Behaviour Reasonable suspicion may exist on the basis of the behaviour of a person alone. For example, if you encounter someone on the street at night who is obviously trying to hide something, you may (depending on the other surrounding circumstances) base such suspicion on the fact that this kind of behaviour is often linked to stolen or prohibited articles being carried. 8 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Where you form the opinion that a person is acting suspiciously or that they appear to be nervous without good reason, you must be able to explain, with reference to specific aspects of the person’s behaviour or conduct which you have observed, why you formed that opinion. The mnemonic SHACKS is useful when considering the reasonable grounds Seen - What did you see? Heard - What did you hear, (phone calls, conversations etc.) Actions – What did the person do? Conversations - When engaging with the individual, what did they say, did their comments increase or reduce your suspicions Knowledge - What do you know about the person? Is there recent intelligence? Smell What did you smell? Engagement and Impact of Stop and Search As previously highlighted, stop and search must be conducted in line with the principles of the Code of Practice as these interactions can affect people’s perception of the police, long after the search is concluded. Despite the potential for this to be a challenging encounter, it is important that officers engage positively with the public, particularly with children and young people during a stop and search, fully informing those searched on what is happening and why. Previous research has found:- …negative encounters made young people feel embarrassed, demoralised……young people who had experienced high numbers of stop and searches…failed to believe the force was there to protect them…resulting in young people feeling they could and would not access police services (Prof Ross Deuchar, June 2016) In summary, there is an obvious link between people’s perception and the quality of the officers’ engagement with them. 9 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Conducting and Recording Stop and Search The Code of Practice requires you, before any search of a person takes place to take reasonable steps, if not in uniform, to show your warrant card to the person to be searched and whether or not in uniform, to give that person specific information. To assist you, IDEAS is a useful mnemonic that reminds you of the information that you must provide and record in relation to every person you stop and search. You will learn more about ‘Articulating your grounds’ and the ‘Stop and Search Receipt’ in the classroom. Identify yourself to the person being searched Provide name and number (except where the Constable reasonably believes that giving their name may put them in danger, in which case a shoulder or PSI number shall be given) and the name of the police station to which the Constable is attached Detain the person using the relevant search powers Tell the person they are being detained for the purpose of a search; and inform them of the legal search power which is being exercised. Deliver a caution at common law Explain suspected object Provide a clear explanation in terms of the article you are looking for, for which there is a statutory power of search Articulate grounds In the case of powers requiring reasonable suspicion, the grounds for that suspicion, with reference to information and/or intelligence about, or some specific behaviour by, the person concerned. In the case of power under Section 60 Criminal Justice and public Order Act 1994, the nature of the power, authorisation and the fact authorisation has been given Stop Search Receipt A Stop Search Receipt will be issued. 10 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Extent to which you can Search The Code of Practice also stipulates the extent to which you can search:- The extent of a search must depend on the circumstances, including what you are looking for. For example searching for a stolen television under section 60 Civic Government (Scotland) Act 1995 might not justify searching a person’s jacket pockets and trouser pockets (unless there are grounds for suspicion that further stolen property might be concealed in their pockets). However, in the case of a small article which can readily be concealed, such as a drug, and which might be concealed anywhere on the person, a more extensive search may be necessary. The search should be carried out at or near the place where the person was first detained. And the duration of a search must be reasonable and kept to a minimum. Power to require the removal of clothing When carrying out a search in public you have the power only to require a person to remove the following items of clothing:- an outer coat, jacket, gloves, headgear or footwear The only exception is under section 60(4A) Criminal Justice and Public Order Act 1994 (where you can require a person to remove any item worn to conceal identity). Use of powers conferred by this legislation must be authorised by a senior officer. A search in public of a person’s clothing which has not been removed must be restricted to the examination of outer garments. 11 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice This does not prevent you from feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, (subject to the restrictions on the removal of headgear), a person’s hair may also be searched in public. Where on reasonable grounds it is considered necessary to conduct a more thorough search (e.g. by requiring a person to take off a T-shirt), this must be done out of public view, for example, in a police van, or police station if there is one nearby. Strip and Intimate Searches Definition: “A strip search is a search involving the removal of more than outer coat, jacket, gloves, headgear or footwear.” A strip search must be authorised by a constable of the rank of Inspector or above. If an officer deems a strip search to be necessary, then the officer should ensure that the search takes place in an area where the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex who is not a medical practitioner or nurse. A police custody centre is likely to be the most appropriate location to carry out a strip search. Definition: “An intimate search consists of the physical examination of a detainee’s body orifices other than the mouth. The intrusive nature of such searches means the actual and potential risks associated with intimate searches must never be underestimated.” Body orifices other than the mouth may be searched only under the authority of a warrant issued by a Sheriff. The search is to be carried out by an Authorised Health Care Professional (HCP). Examination by a HCP can take place only with the consent of the detainee. 12 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Human Rights HR Searches involving exposure of intimate body parts must not be conducted as a routine extension of a less thorough search, simply because nothing is found in the course of the initial search. Searches involving exposure of intimate parts of the body may be carried out only at a nearby police station or other nearby location which is out of public view (but not a police vehicle). Recording Searching You must always make a record when you have carried out a stop and search, unless there are exceptional circumstances which make this wholly impracticable (e.g. in situations of public disorder or an officer is urgently required elsewhere). The Stop & Search Database is available as an application on your PDA. You must record searches on the spot unless this is not practicable, in which case you must make the record as soon as is practicable. Be specific about what gave rise to your suspicions when recording your grounds. Receipts A person who has been searched using a specific statutory provision or in accordance with a warrant issued by a court in Scotland must be given, at the time of the search, a receipt (with the exception of condition of entry searches or where the searching officer is diverted to an urgent incident and it was impractical to issue the receipt). Appendix B provides a flowchart which explains this process. 13 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice 14 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Notebook Entries It is vital that every stop and search is recorded accurately in your police notebook to ensure that sufficient information is available as to the justification and appropriateness of the circumstances. The information you are required to record is listed here:- Details of the constable conducting the search Details of the corroborating constable Time, Date, Locus (nearest address, private place or street) Name (if provided) Age (if provided), Gender (if provided), Date of Birth (if provided), Address (if provided), Self - defined ethnicity origin (if provided) The statutory power of search used The grounds/reasonable suspicion that led to search/seizure The outcome of the stop and search Details of any item(s) recovered The stop and search receipt number given to the subject of the search The stop and search database reference number should also be recorded within the officer's notebook/PDA. It is good practice to ask for and record a person’s details as soon as possible during a stop and search encounter. Officers cannot compel an individual to provide their details unless they reasonably suspect them of committing / having committed an offence (using powers under Sec.13 Criminal Procedure (Scotland) Act 1995). A person may decline to provide their personal details prior to being searched. If the result of the search is negative, there is no further obligation for them to provide these details. 15 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Activity 1 A1 Your instructor will show you some videos. Consider the scenarios presented and make note of the following: What behaviours give rise to your suspicion? What type of item would you consider searching for? Referring to the appendix A at the back of your notes what statutory power of search would you consider using? 16 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Notebook Entry NE RESTRICTED T12345 Monday 18th January 2020 ______________ 1945hrs PS H416 in presence of PC Wilkie ________ In Middle Drive Brookbank _______________ Searched Andrew Blair Wilson (48), M, Bn 16/11/1972___________________________ 7 Middle Drive, Brookbank _______________ For stolen property Sec60 CG(S) Act. 1982 Matched description of suspect for ________ Theft by shoplifting at Brookbank Stores Negative search. ___________________________ Receipt 0666759 issued 2200hrs End Shift _________________________________ RESTRICTED 55 17 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Requirement of Persons to Surrender Items There are some instances where police have the power to require the surrender of particular items where there is NO power of search. Such incidents are not recorded on the National Stop and Search Database and no receipt is issued, however when officers consider the individual may be vulnerable and there is a risk to their current or future wellbeing the officer must raise an iVPD concern report. S61 of the Crime and Punishment (Scotland) Act 1997 Where a Constable has reasonable grounds for suspecting that a person in a public place:- a) is under the age of 18; and b) is in possession of alcohol he may require that person to surrender the alcohol to him, and may dispose of it in such manner as he considers appropriate; and he may also require that person to supply him with his name and address. Where a Constable has reasonable grounds for suspecting that a person of or over the age of 18 has alcohol in his possession in a public place and that person:- a) has supplied such alcohol to a person under the age of 18 for consumption in a public place; or b) intends that that alcohol should be consumed in a public place by a person under the age of 18, the Constable may require the person in possession of the alcohol to surrender it to him, and may dispose of it in such manner as he considers appropriate; and he may also require that person to supply him with his name and address. Where a Constable makes a requirement such as is mentioned in subsection (1) or (2) above he shall inform the person concerned:- a) of his suspicion; and b) of the fact that failure to comply with a requirement made under either of those provisions is an offence. 18 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice S7 Tobacco and Primary Medical Services (Scotland) Act 2010 Where a Constable has reasonable grounds for suspecting that a person in a public place:- a) is under the age of 18, and b) is in possession of a tobacco product or cigarette papers, the Constable may require the person to surrender the tobacco product or, as the case may be, the cigarette papers to the Constable. A Constable making a requirement under subsection (1) may also require the person to supply the Constable with the person's name and address. Where a Constable makes a requirement under subsection (1) the Constable must inform the person concerned:- a) of the Constable's suspicion, and b) of the fact that failure to comply with a requirement made under subsection (1) or (2) is an offence. 19 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Appendix A - Statutory Search Powers Section 23(2) of the Misuse of Drugs Controlled drugs Act 1971 Section 23A of the Misuse of Drugs Temporary Class Drugs Act 1971 Section 60 of the Civic Government Stolen Property (Scotland) Act 1982 Sec 48(1) of the Criminal Law Offensive Weapons (Consolidation) (Scotland) Act 1995 Sec 50(1) of the Criminal Law Bladed or pointed articles (Consolidation) (Scotland) Act 1995 Section 49B of the Criminal Law Offensive weapons/ bladed or pointed (Consolidation) (Scotland) Act 1995 articles in Schools Section 47 of the Firearms Act 1968 Firearms Section 21 of the Criminal Law Alcohol, controlled (Consolidation) (Scotland) Act 1995 articles/substances/ containers at designated sporting events Section 60 of the Criminal Justice and Offensive weapons, dangerous Public Order Act 1994 instruments and items for concealing identity (must be authorised by a senior officer) Section 11A of the Fire-works Act Fireworks 2003 Section 4 of the Crossbows Act 1987 Crossbows or part of a crossbow Section 43 of the Evidence of terrorism Terrorism Act 2000 Section 66 Criminal Officer/public safety when person is Justice (Scotland) Act 2016 being or about to taken to or from any place Section 67 Criminal Condition of entry search Justice (Scotland) Act 2016 (Not a recordable Stop and Search) Section 36 Psychoactive Substances Psychoactive Substance (produce, Act 2016 supply, possess with intent to supply, import or export, possess on custodial institution, fail to comply with prohibition order Section 289 Proceeds of Crime Act Cash gained by illegal or immoral 2002 means? (Prior approval routinely required) 20 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Appendix B - Stop and Search Flowchart 21 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice For further information, use the resources shown below:- Intranet:- Stop and Search Intranet Section Guidance and the latest updates on stop and search can be found on the Stop and Search Intranet area Review: You can define a Stop and Search You can explain the Code of Practice on the use of stop and search You can outline recordable and non-recordable Stop Search You can detail when a Care and Welfare Search would be conducted You can explain reasonable grounds for a search You can explain the impact of stop and search on members of the public and the community You can explain what you must do when conducting a search and recording stop and search activity You can explain the requirement for a person to surrender certain items 22 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 23 Conduct Systematic Searches OFFICIAL  OFFICIAL Unit 8 Lesson 1 Stop and Search - The Code of Practice 24 Conduct Systematic Searches OFFICIAL