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Publication - Consultation Paper

Exercise by constables in Scotland of search powers conferred: draft code of practice

Published: 1 Nov 2017
Part of:
Law and order, Research
ISBN:
9781788513791

Draft Code of Practice on the Exercise by Constables in Scotland of Search Powers Conferred by Sections 289 and 303C of the Proceeds of Crime Act 2002.

39 page PDF

505.0kB

39 page PDF

505.0kB

Contents
Exercise by constables in Scotland of search powers conferred: draft code of practice
Annex A: Conduct of searches – additional considerations where a child or young person is involved

39 page PDF

505.0kB

Annex A: Conduct of searches – additional considerations where a child or young person is involved

Introduction

A.1 This Annex is designed to offer constables assistance in recognising and understanding the needs of children and young people in relation to searches. It acknowledges that children and young people have different needs to adults, and that they may require additional support to help them comprehend and participate in the search process.

A.2 It does not replace any requirements placed on constables elsewhere in the Code. Rather, it provides additional guidance and suggests ways in which constables can tailor their approach towards children and young people.

A.3 For the purposes of this Code, children and young people are defined as those being under the age of 18.

Protection of rights and wellbeing of children and young persons

A.4 In taking a decision to search a child or a young person, a constable must treat the need to safeguard and promote the wellbeing of that child or young person as a primary consideration. Where a constable believes it to be more harmful to a child or young person to carry out a search than not, then the search should not proceed and other measures to safeguard them should be considered.

A.5 Constables should ensure that the principles of fairness, integrity and respect apply equally to children and young people, as they do to adults.

A.6 Constables' actions should be compatible with the child's or young person's human rights. This Code has been designed to comply with the UN Convention on the Rights of the Child [26] . It is also consistent with the Scottish Government's GIRFEC (Getting It Right for Every Child) [27] approach.

General considerations

A.7 Constables should generally be aware of how the minimum age of criminal responsibility might affect their interactions with children and young people. However, the search powers conferred by sections 289 and 303C of POCA do not depend on the person concerned being suspected of committing an offence in relation to the object of the search. They simply require a reasonable suspicion that the person is carrying seizable cash or a seizable listed asset. For instance, there may be cases where an adult uses a child's pram, a child or a young person to conceal seizable cash or a seizable listed asset. A constable who has reasonable grounds to suspect that a child or young person is in innocent possession of such cash or listed asset may search the child or young person (see Guidance Note 8). The constable must carry out the search in such a way as to minimise distress to the child or young person.

A.8 Where a constable believes a search is necessary, they should be aware of the inherent power imbalance that exists between the constable and the child or young person, and how this may affect their interactions with the child or young person. It should not be assumed that, because a child or young person is compliant and/or silent, they are fully comfortable with a search being carried out. Equally, if a child or young person appears to be acting unreasonably, the root of such behaviour may be in fear or confusion.

A.9 Constables should be aware that, on occasion, children and young people may display behaviour which arouses suspicion, but which is in fact related to a communication impairment, disability or additional learning support need. This may include gesturing, shouting or avoiding eye contact. When a search of a child or a young person is being considered, a constable should check whether the child or young person considers themselves to have such a disability and, if so, what additional support they might require to participate in a search (bearing in mind that a person with such a disability may have difficulty articulating the nature of that disability or what support they need).

A.10 Constables should use age-appropriate terms when engaging with children and young people, and avoid the use of technical or legal language unless this is required by law. Where, for example, a constable is required to state the statutory basis for a search, then they should also be prepared to explain this in terms the child or young person can easily understand. Constables should be aware that not all children of the same age will have the same level of understanding and, where practicable, should allow time for the child or young person to ask questions before a search begins.

A.11 Where it appears to a constable that a child or young person lacks the capacity to understand why a search may be necessary, or what it may entail, the presumption is that the search should not proceed unless appropriate support can be arranged for the child or young person (see Annex B). Consideration should then be given to how best to safeguard that child or young person, where it is believed that they are being used to carry seizable cash or a seizable listed asset.

A.12 Constables should ensure that the wellbeing of the child or young person is the primary consideration in deciding whether to proceed with a search of a child or young person. That applies equally to children and young people with a learning disability or other type of disability (see also Annex B). For example, someone who is autistic may be particularly sensitive to touch and might find a physical search overwhelming. Where a search is considered likely to have a detrimental effect on a child or young person, then alternative safeguarding measures should be considered.

A.13 Constables should be aware that the status of a child or young person as looked-after or care experienced can be relevant to how such people engage with constables – e.g. they may find it more difficult to engage with the police as a result of previous trauma. Constables should be alert to the possibility that a child or young person may be looked-after or care experienced and, if so, consider what additional support they might require. In doing so, constables should be sensitive about whether and how they ask questions about a person's status, bearing in mind that some looked-after and care experienced children and young people can regard questions about their status as stigmatising and, also, that their peers may be unaware of their status.

A.14 Children or young people who have experienced abuse may also react strongly to the prospect of being searched, particularly if they (mistakenly) believe that the search is likely to involve a strip search or an intimate search.

A.15 Even where there is no history of abuse, children and young people have reported that being searched by someone who is a stranger to them is both uncomfortable and intrusive.

A.16 Where a child or young person is becoming distressed during a search, consideration should be given to stopping or pausing the search until a responsible adult can be present (if this is practicable and the child or young person wishes this to happen).

A.17 For the purposes of this Code, a 'responsible adult' is defined as someone over the age of 18, with responsibility for the child or young person. This might include a parent, a carer, an older sibling or a key worker. The responsible adult's role is to support the child or young person, and help them understand what is happening. Constables should note that a 'responsible adult' is distinct from an 'appropriate adult', a term which has its own meaning.

A.18 When considering a search of a child or young person, a constable should attempt to minimise any embarrassment they might feel – e.g. by carrying out a search discreetly and away from a peer group. Where practicable, a constable should involve the child or young person in considering where the search should take place. A constable should not assume that places considered suitable for adults will be where a child or a young person would feel most at ease.

A.19 Any search of a child or a young person should be carried out by a person of the same sex. All searches should respect the dignity and privacy of the child or young person.

A.20 A constable should explain at each stage of a search of a child or young person what the constable is doing and why. Where a child requests a brief pause in the search ( e.g. to compose themselves), this should be accommodated where practicable. Otherwise, the search should be completed as swiftly as possible.

A.21 Where a search takes place and no item is found, and the child or young person has provided their name, address and date of birth, a constable should clearly explain how the information will be stored, the length of time for which it will be kept and the purposes for which it may be used.

Receipts and complaints

A.22 Following completion of a search, a child or a young person should be supplied with a receipt, which should include age-appropriate information about the search, and details of how to make a complaint if the child or young person feels that they have been treated unfairly.

A.23 Constables should be aware that children and young people can find it difficult to access complaints processes, which are often designed by adults for adults. Where a complaint is received by the police from (or on behalf of) a child or young person, consideration should be given to how best to respond in an age-appropriate, timely and child-centred manner.

Notifying parent(s) or caregiver(s) of search

A.24 Where no seizable cash or seizable listed asset is found, a constable should consider the child's or young person's individual needs and circumstances when deciding whether or not to make their parents (or other caregivers) aware of the fact that the child or young person has been searched. Factors to be considered by constables may include: the age of the child or young person; the circumstances in which the search took place; any views expressed by the child or young person, and any perceived on-going risk to the child or young person and/or others.

A.25 Where a child or young person has expressed a view about whether their parents (or other caregivers) should be informed of a search, and a decision is taken which appears to contradict that view, the constable concerned should clearly explain to the child or young person the reasons for the constable's decision.

A.26 Constables should be aware that some children and young people may be placed at increased risk by their parents (or caregivers) being notified of a search. This would include, for example, a child or young person living in a household where there is a history of domestic abuse.

A.27 More generally, constables should consider whether informing a child's or young person's parents (or caregivers) might inadvertently suggest that the child or young person has been involved in wrongdoing, when they have not.

Children and young people as witnesses to searches

A.28 As well as being the subject of a search, children and young people may also be witnesses to searches. Where an adult in the company of a child or young person is being searched, constables should be aware of the effect that such a search may have on the child or young person. For younger children, witnessing something that they do not understand, or being parted from their parent/caregiver for the duration of the search, can be particularly upsetting. Care should be taken to ensure that the child is reassured and that any separation from the parent/caregiver is either avoided or kept to an absolute minimum.

Promoting positive relations between the police and children and young people

A.29 Carrying out a search in a respectful and age-appropriate manner is likely to minimise the damage it can cause to children's and young people's perceptions of the police. Constables should therefore be aware of the potential to build positive relationships with children and young people in the local community by following the steps outlined in this Code.

Additional support needs

A.30 Children and young people may have additional support needs beyond those outlined in this Annex. It is therefore important that constables also familiarise themselves with the content of Annex B, and consider how this may apply to children and young people.


Contact

Email: Alastair Crerar

Phone: 0300 244 4000 – Central Enquiry Unit

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG