Notes for guidance
1 Nothing in this Code affects the ability of a constable to speak to or question a person in the ordinary course of the constable's duties without detaining the person or exercising any element of compulsion. This Code does not seek to prohibit or restrict everyday interaction between constables and members of the community.
2 The "relevant protected characteristics" referred to in paragraphs 4.3, 4.21 and 4.26 are: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
3 Innocent possession means that the person does not have the knowledge that they are carrying an unlawful item. Ordinarily such knowledge is required before arrest can be considered. Children under the age of criminal responsibility are sometimes used by older children and adults to carry stolen property, drugs and weapons and, in some cases, firearms, for the criminal benefit of others, either:
- in the hope that police may not suspect they are being used for carrying the items;
- knowing that if they are suspected of being couriers and are stopped and searched, they cannot be prosecuted for any criminal offence.
Stop and search powers therefore allow the police to intervene to break up criminal gangs and groups that use young children to further their criminal activities.
4 Whenever a child or young person under the age of 18 is suspected of carrying unlawful items for someone else, or is otherwise found in circumstances which suggest that their welfare and safety may be at risk, the facts should be reported and actioned in accordance with the relevant police service's Child Protection Policy, or equivalent policy (if it has one). This will be in addition to treating them as a potentially vulnerable or intimidated witness in respect of their status as a witness to the serious criminal offence(s) committed by those using them as couriers. Safeguarding considerations will also apply to other persons aged under 16 who are stopped and searched under any of the powers to which this Code applies and constables should, where appropriate, report any such interaction to the relevant authorities. Similarly, any contact with children or young people aged between 16 and 18 who are subject to compulsory supervision under the terms of the Children's Hearings (Scotland) Act 2011 should be reported to the appropriate authorities, where appropriate.
5. Where a person is lawfully detained for the purpose of a search, but no search takes place, the detention will not thereby have been rendered unlawful.
6. Many people customarily cover their heads or faces for religious reasons - for example, Muslim women, Sikh men, Sikh or Hindu women, or Rastafarian men or women. A constable cannot order the removal of a head or face covering except where there is reason to believe that the item is being worn by the individual wholly or mainly for the purpose of disguising identity, not simply because it disguises identity. Where there may be religious sensitivities about ordering the removal of such an item, the constable should permit the item to be removed out of public view. Where practicable, the item should be removed in the presence of a constable of the same sex as the person and out of sight of anyone of the opposite sex. Similar considerations may arise where headgear or other form of head covering is worn as part of their gender expression ( e.g. headscarves or wigs), and again the constable should, where practicable, permit the item to be removed out of public view. Similarly, the touching of hair may be regarded as being disrespectful by individuals with particular beliefs, and accordingly should, where necessary, be conducted out of public view where possible.
7. A person may be detained under a stop and search power at a place other than where the person was first detained, only if that place, be it a police station or elsewhere, is nearby. Such a place should be located within a reasonable travelling distance using whatever mode of travel (on foot or by car) is appropriate. This applies to all searches under stop and search powers, whether or not they involve the removal of clothing or exposure of intimate parts of the body (see paragraphs 6.7 and 6.8) or take place in or out of public view. It means, for example, that a search under the stop and search power in section 23 of the Misuse of Drugs Act 1971 which involves the compulsory removal of more than a person's outer coat, jacket or gloves cannot be carried out unless a place which is both near the place they were first detained and out of public view, is available. If a search involves exposure of intimate parts of the body and a police station is not nearby, particular care must be taken to ensure that the location is suitable.
8. A search in the street itself should be regarded as being in public for the purposes of paragraphs 6.5 to 6.8, even though it may be empty at the time a search begins. Although there is no power to require a person to do so, and this should be explained to the person, there is nothing to prevent a constable from asking a person voluntarily to remove more than an outer coat, jacket or gloves in public. This would constitute a strip search (see Annex C).
9. Where a stop and search is conducted by more than one constable the identity of all the constables involved in carrying out the search (including any constable supporting another constable who is physically carrying out the search) must be recorded on the record. Nothing prevents a constable who is present but not directly involved in searching from completing the record.
10. It is important for monitoring purposes to specify the time at which authority is given for exercising the stop and search power under section 60 of the Criminal Justice and Public Order Act 1994.
11. Constables should record the self-defined ethnicity and national origin of every person stopped. The person should be asked to select one of the five main categories representing broad ethnic groups and then a more specific cultural background from within this group, using the groups listed in the census questionnaire. An additional "Not stated" box is available but should not be offered to respondents explicitly. Constables should be aware and explain to members of the public, especially where concerns are raised, that this information is required to obtain a true picture of stop and search activity and to help improve ethnic monitoring, tackle discriminatory practice, and promote effective use of the powers. If the person gives what appears to the constable to be an "incorrect" answer ( e.g. a person who appears to be white states that they are black), the constable should record the response that has been given and then record their own perception of the person's ethnic background. If the "Not stated" category is used the reason for this must be recorded.
12. It is unlikely to be practicable in most cases to make a record of a search under section 67 of the Criminal Justice (Scotland) Act 2016 (searches on entry to relevant premises and events, where consent has been given as a condition of entry imposed by the organiser). If it is not practicable to make a record of a search under section 67, there is no requirement to issue a receipt in respect of that search.
13. In this context, "seized" means items found or recovered as a result of the search.
Email: Catherine Lobban