Abolishing consensual stop and search: would this leave gaps in the law?
One issue which the Independent Advisory Group on Stop and Search will have to consider is whether it should continue to be possible for the police to search individuals on a “consensual” basis. At present, the consent of a person to being searched is sufficient for a search to be carried out, even if there is no lawful authority which would permit that person to be searched if they refused. Any proposal to prohibit consensual search is likely to lead to a fear that existing powers of search will be inadequate and a gap will somehow be created. Is it possible to establish whether that fear is well-founded?
In a note I have prepared for the Group, I have attempted to do that. It is an easier task than it might seem at first, because England and Wales offers a useful comparison. In that jurisdiction, the code governing the exercise of stop and search powers (PACE Code A) expressly prohibits consensual searches: even where a person is willing to be searched, a search cannot take place unless the necessary legal power exists, and it must take place in accordance with the relevant law and the Code itself.
In addition, PACE Code A lists (in Annex A) the main stop and search powers available to police in England and Wales. This is not a comprehensive list (it is interesting that there is no readily available list of police powers in this respect, which is another matter) but can reasonably be taken to represent those which the police regard as being of operational importance. Do Scottish police have corresponding powers, or are there gaps which might prove problematic if consensual search was prohibited?
Annex A of Code A lists 20 different statutory powers of search (if s 1 of the Police and Criminal Evidence Act 1984 is read as conferring four different powers, as I have done for the purposes of this analysis). 10 of these powers apply to Scotland as well as England and Wales. A further seven have direct equivalents in Scotland. Three, however, do not (including one which applies to Scotland but only in part). These are as follows:
- The power to search, on reasonable suspicion, for items made, adapted or intended for use in the course of or in connection with the offences of burglary, theft, taking a motor vehicle or other conveyance without authority, fraud, or offences of destroying or damaging property. (Police and Criminal Evidence Act s 1)
- The power to search, on good cause, for “game unlawfully obtained, or any gun [or] part of gun” where a person is suspected of “coming from any land where he shall have been unlawfully in search or pursuit of game”. (Poaching Prevention Act 1862 s 2. This did apply in Scotland until the Wildlife and Natural Environment (Scotland) Act 2011, which does not create any replacement power of search.)
- The power to authorise searches without reasonable suspicion where it is reasonably believed that an incident involving serious violence has taken place and a dangerous weapon used in that incident is being carried by a person. (Criminal Justice and Public Order Act 1994 s 60. While s 60 applies to Scotland, the power mentioned here is a narrow extension created for England and Wales only by the Serious Crime Act 2007.)
There may in each instance be a case to be made for similar powers in Scotland - I explore this in a little more detail in the note - but it is not obvious that any of these, except perhaps (1), add much to the powers of the police given the existing ability to search any person who has been arrested. Their relationship with the ability to carry out consensual searches seems, at first sight, limited.
It will be noted that there is no mention here of a police power to search children for alcohol, despite this having been a significant feature of the Scottish debate. Police in England and Wales have no such power either, although a limited power to search for alcohol can be conferred on Police Community Support Officers. I have discussed this in an earlier blogpost.