1. Where a person is lawfully detained for the purpose of a search, but no search takes place, the detention will not thereby be rendered unlawful.
2. A person may be detained and searched under section 289 or 303C of POCA at a place other than where the person was first detained, but only if that place ( e.g. a police station) 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.
3. A search in the street itself should be regarded as being in public for the purposes of this Code, even though it may be empty at the time a search begins.
4. Many people customarily cover their heads or faces for religious reasons - e.g. Muslim women, Sikh men, Sikh or Hindu women, or Rastafarian men or women. Where there may be religious sensitivities about requiring 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 concerned 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 the individual's gender expression ( e.g. headscarves or wigs). Likewise, where practicable, the constable should 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 be conducted out of public view so far as practicable.
5. Where a 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 in the written record of the search. Nothing prevents a constable who is present, but not directly involved in the searching, from completing the record.
6. Constables should record the self-defined ethnicity and national origin of every person detained and searched under section 289 or 303C of POCA. 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 explicitly offered to the person. A constable should explain to the person, especially where concerns are raised, that this information is required to obtain a true picture of search activity and to help improve ethnic monitoring, tackle discriminatory practice, and promote effective use of the search powers. If the person gives what appears to a 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 the constable's own perception of the person's ethnic background. If the 'Not stated' category is used, the reason for this must be recorded.
7. While there is no agreed definition of transgender (or trans), it is generally used as an umbrella term to describe any persons whose gender identity (including their gender expression) does not fully correspond with the sex they were assigned at birth. This is inclusive of:
- trans women (people who were assigned male at birth, but who identify as women);
- trans men (people who were assigned female at birth, but who identify as men);
- non-binary people (people who do not identify solely as men or women; instead their gender identity is between or beyond the man/woman binary or they have no gender);
- cross-dressing people (people whose gender expression includes dressing in clothing which does not fully correspond with the sex they were assigned at birth, but who otherwise identify with their assigned sex).
8. Innocent possession means that the person does not know that they are carrying seizable cash or a seizable listed asset. Children may be used by older children and adults to carry seizable cash or a seizable listed asset for the criminal benefit of others, either:
- in the hope that the police may not suspect such children of being used to carry seizable cash or a seizable listed asset; or
- knowing that if they are suspected of being couriers, and are detained and searched, they cannot be prosecuted for any related criminal offence(s).
Email: Alastair Crerar
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House