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9th February, 2015
Gen Sec writes to MSPs re Search
Ref: CS/LS 9 February 2015
Dear Elected Member
Stop and Search
The events of the past week have resulted in a frightening narrative that politicians believe that they are in a position and indeed have a role to play in determining how and when police officers exercise their right to stop and search someone.It is also alarming to read and hear reports that politicians consider that they are in a position to reach an agreement with or direct the Chief Constable of the day as to how and when such powers will be used.
The authority of police officers to stop and search any citizen does not arise from the dictate of politicians nor from some non-existent power of the Chief Constable but comes from the law of the land both at common law and statute. If that power is exercised inappropriately or in circumstances which breach the law, and the substantial safeguards that exist, the courts will strike down any evidence recovered unlawfully. Scotland has a well developed body of law governing the rights of the police to search and the rights of individuals who may be the subject of search.
As the law stands at present a Police Constable can stop and search any individual without having a search warrant if they suspect they are in possession of drugs, an offensive weapon, stolen property, alcohol if attending a major football or rugby match, on public transport travelling to such an event where alcohol is not permitted, evidence in relation to an offence under the protection of Wild Mammals (Scotland) Act 2002, cash or cash equivalent of £1000 or more where this is the result of criminal activity and fireworks that are intended to be used anti socially. Before exercising the right to stop and search the Constable has to have reasonable grounds for suspecting that they will find one or more of these items.
There are some exceptions which allow police officers, for example attending an incident which has involved serious violence, to stop and search without having reasonable grounds for suspecting that they might find these items.
In matters involving terrorism the police can stop and search a vehicle if they reasonably suspect terrorist activities are involved. If such a reasonable suspicion exists for any of these matters and the common law or Parliament has given power to search, on what basis is it now to be suggested that a conversation will take place with the Chief Constable to prevent a police officer exercising these powers lawfully and in the public interest?
The framework of law which governs search and stop and search is well understood and has developed through many decisions of the courts supplemented by extra powers granted to police officers by Parliament both at Westminster and Holyrood. None of these powers are granted to the Chief Constable (other than as an individual holding the office of Constable) and there is no place in the common law or statute for politicians deciding on the whim of the moment how, when or why police officers should exercise the powers which the law extends to them.
All of these powers can be challenged in court as and when appropriate. The Chief Constable’s responsibility is to provide training for officers so that they understand what their powers are under the law. The role of politicians is to enact law. When the power is granted then police officers have the obligation to exercise those powers reasonably within the limits set by law, in ways consistent with the training they receive and be ready to answer for any decisions they make before a court of law rather than a court of political opinion or according to some private discussions between politicians and the Chief Constable of the day.
The debate on ‘non-statutory’ or ‘consensual’ searches has unearthed frightening levels of political ignorance. It is well understood that for the most part we police our nation by consent not by force and for this reason our courts have consistently found that when citizens voluntarily consent to be searched that not only is such practice within the law but that occasions where a person gives consent, the interaction does not amount to a search in the more formal sense of the word. It seems to me that this is a determination based entirely on common sense. Are we really suggesting citizens should no longer be able to co-operate with police officers on a voluntary basis?
If law developed by the courts and as laid down by Parliament is to be altered, the legislators would require to explain how a power vested in an individual Constable could be restricted through what appears to be entirely ambiguous means. It would be an absurdity for a Constable to be vested with powers only for those powers to be curtailed as a result of some private conversation between a politician and the Chief Constable.
Regrettably the Police Service of Scotland has to carry much of the responsibility for the hostility toward the subject of stop and search. The numbers driven target approach to this area of policing was ill conceived and resulted in attention being directed towards meaningless numbers rather than the sensible objective of crime prevention and detection.
It is of course understandable and entirely correct that politicians question the use of any non-statutory search of children and all police officers should be able to account for such occurrences. The events of the past week however tend to suggest that there is no interest in hearing such accounts, as a determination has already been made that any rationale provided will be insufficient.
It is however an absolute reality that many children in our society are out and about in our communities without the slightest knowledge of their parents or guardians. Many smoke from their pre-teen years, many more drink and yes occasionally some also carry weapons and drugs. No amount of wishing it wasn’t so changes the fact that it is so and no amount of hand wringing changes the fact that police officers have to deal with thousands of calls every year involving pre teenage youngsters. There may be no general statutory power to search at such calls but there is also no general statutory power to require a name, address or age. Perhaps the police should just do nothing and advise callers that “we have no statutory powers” and simply hope these youngsters come to, or cause no harm.
When police officers exercise their powers to search they do so often under statute and in such circumstances they do not require consent, they can also search people they have lawfully arrested with or without a warrant. They can also ask individuals to consent to search and it’s up to the individual whether they consent or not.
What the public require to know is that police officers are only engaging in this activity in the public interest in an effort to combat crime and to keep the public safe. This is best done by training police officers how to exercise their powers and engage with the public in the interests of everyone rather than by political dictate or suggestion to Chief Constables that they have the power to overrule a well-developed system of law.
There are undoubtedly lessons to be learnt from the recent history of stop and search within the Police Service of Scotland. These lessons however need to extend beyond the service itself and many parents and guardians need to take a greater responsibility for the actions of their children. The greatest lesson of all however must stem from the historic warnings that a single police service in Scotland could become subject to political interference. How quickly these concerns appear to have faded from the memories of those who now seek to exert what they so prophetically warned against.