Highland (lack of) Titles…

…or an examination of the ALMIGHTY KEEPER.

So imagine A wants to sell B their magazine. They’d form a contract. A would agree to give B the magazine and, in return, B would agree to pay A money for them. There are two rights created here, along with two obligations:

  • A has a right to payment and an obligation to deliver the magazine.
  • B has a “right to ownership” the magazine and an obligation to pay.

It’s important to note that B only has the ‘right to ownership’ and not a ‘right of ownership’. Even more importantly, A and B only have these rights in relation to each other.  A can’t use the contract to get C to pay and B can’t use the contract to get D’s magazine. This kind of right is called a “personal right”. It is only enforceable against a particular person or group of people.

Illustrating the above
A diagram of the above situation with A, B, C & D

But how can this ‘right to ownership’ become the ‘right of ownership’? B paying the money isn’t enough – A has to physically deliver the magazine B. This is called ‘the publicity principle’. If A refuses to deliver, B can rely on his personal right to sue him and enforce delivery. But A could decide to break the contract, sell the magazine to E instead and B cannot stop this. This is because until there is delivery, A remains the owner and he can do what he wants with what he owns. Assuming E was didn’t know about A’s contract with B, all B can do is sue A for the price. It seems unfair, but it’s the law.
But imagine A isn’t a conman and delivers the magazine to B. Upon delivery A loses all his rights to it and B become the new owner. She now has the ‘right of ownership’. This is a special right because it is enforceable against everyone else in the entire world. This is a called a “real right”. If anyone tries to steal B’s magazine, she can get (theoretically) get it back. If A now tries to sell it to E, B can now stop it, because she is the owner. Ownership is the supreme right.

So there are two steps involved in transferring ownership:

  • Contract (creates a right to ownership).
  • Delivery (creates a right of ownership).

Now pretend that, instead of a magazine, A wants to sell B his house. The process is practically different, but the steps are the same. Firstly they would make a contract to sell the house – known in Scotland as ‘missives’ – and this gives B their right to ownership. but delivery has still got to take place for ownership to be transferred. But how do we make delivery? The ground is odd in that respect – it tends to want to stay where it is. In the past, people would physically hand over a small piece of the ground in a symbolic way. But this can be very impractical, so since the 1600’s we’ve had a different way to solve this problem.
Firstly, we created the Register of Sasines where all the deeds related to land were registered. This register can be checked and we can see who owns the land – so the ‘publicity principle’ is met. It also saved people lugging bits of land around to “deliver” them, so it was definitely an improvement. But there was one problem: it wasn’t always reliable. What was needed was something much more definitive so we created the Land Register.
The Land register is a much more powerful beast. The golden rule is that whoever the Land Register says owns the land, owns the land. Even if the register is ‘incorrect’ it is right. Going back to the example, if A sells the house to B and send off the deed (or ‘disposition’) to be registered but there’s a terrible mistake and the Land register says that it was sold to D instead…D would own the land. That’s it. Of course, B can ask for the register to be changed (and under the Land Registration (Scotland) Act 2012, or ‘2012 Act’, this process has become a lot easier), but as long as the Land Register says D is the owner D is the owner. The Land Register is never wrong!
One final thing – the only way to get ownership of land in Scotland, whether house, field or forest, is to be registered in the Land Register (or, if the land was last sold before 1979, the Register of Sasines). There are no other ways to own land in Scotland. [2012 Act s.50]

So this brings us to Highland Titles. Highland Titles is a business which purports to sell a square foot of land to customers for £29.99. This would suggest that they will enter into a contract with the customer and then give them a deed they can register in the Land Register so they can become owners. But they don’t.
The 2012 Act specifically says that some kinds of deeds cannot be registered. One kind is a deed relating to a “souvenir plot” which is defined as being “of inconsiderable size and no practical utility” [s.22(2)(a)]. As we’ve established, if a deed cannot be registered, ownership can’t pass, since the only way you can get ownership if to have your name on the Land Register.
So then, how can Highland Titles claim to give their customers “ownership” over the land they ‘sell’ them? What they say is that their customers get a “personal right to the land” or “personal right of ownership” by virtue of the contract. But is this true? Highland Titles seems to think so – this was an FAQ on their website until recently (screenshoted by @loveandgarbage):

 “This inability to register the land does not prevent us transferring personal ownership of the plot to you, which you can in turn sell on to another party, or gift to your heirs in due course.

Unlike in England, Scotland still permits the sale of souvenir plots of land under contract law without the requirement for registration.  Although a right of ownership in land (in the sense of a right that is enforceable against third parties) can traditionally only be obtained by registration in the Land Register or by recording a deed in the Register of Sasines as appropriate, under Scottish law these small plots of land can be sold without the expense of registration which would otherwise make this uneconomical.”

While this claim has been removed from their website, the concept of a transfer of ownership under contract only is one they have since restated.

Applying what we’ve discussed, this is clearly not the case. As we’ve said, the right of ownership is a real right. A contract can only give the right to ownership – a personal right of ownership does not exist under Scots Law. This has been confirmed in court [Burnett’s Trustees v Grainger being the leading authority on the matter]. Even if it did, what good would it do? If a personal right can only be enforced in relation to a certain group of people, how can this really be called ownership?

If I have a personal right of ownership against Highland Titles (which is the most I can possibly have under a contract of sale), what happens if someone else tries to move in on my square foot?  I don’t have any rights in relation to them – I’m not the ‘real’ owner. I’d be screwed.
Also, what if Highland Titles decided to try and resell my square foot to someone else, what could I do? The Land Register still says that they’re the owner, and the Land Register is always right – so I can’t stop them. The very most I could do is enforce my personal right against them and sue them to get my £29.99 back. Conversely, it also means that I wouldn’t be able to sell the land on to someone else, because I’m not the owner. Highland Titles is the owner because I can’t register my title, so the register would still say they’re the owner and The Register is always right!

So what are Highland Titles actually selling? It’s fair to conclude that Highland Titles aren’t selling land. They can’t be selling a “personal right to ownership” in a square foot of Highland ground, because such a right does not exist. There can only be a ‘real right’ of ownership and they’re selling me a title which cannot be registered in the Land Register, and (as I hope is clear by now) what the Land Register says goes – so I can never get the “real right of ownership”. At most, Highland Titles are selling a right to potentially sue them for £30 at some point in the future.

Lots of other (more qualified) have written (more technical) posts on Highland Titles and related gubbins. Please read them too:


#StreetLaw 3: Aliens and Human Rights

…or when I realised even kids hate lawyers!

For our third lesson we thought we’d be a bit more adventurous that we had one before and not use just worksheets and pens, but strips of paper with human rights (mostly according to the UN Convention on the Rights of the Child) which the groups can move about themselves. It was a risk…but we were prepared to take it. It was even more dangerous since Ms. Hemming – the class’s usual teacher who was usually in the class with us – was off sick. We would have a cover teacher, but would she appreciate the Street Law approach? And, more importantly, would we be able to control the class effectively without our security teacher?

The Premise

Instead of any sort of introduction at the start of the class, we asked the class to wait outside the door while we prepared. When they did come in we told people where to go in the class, and this would split them into groups. This seems a tad authoritarian, but last week we suspected people weren’t really sticking to the groups – so we wanted to keep an eye on it. Once the groups were in, David asked for a some examples of human rights from the class and we got a good mix of the big hitters (speech, religion etc.) and a few smaller ones (education, movement etc.) which was a good start. The class, it seemed, were aware of what rights were and a few different examples.

The Execution

Without further ado, I took over. “Folks, I have to tell you…”, I said as I headed out small bundles of 15 paper strips, “…while you were moving between classes, aliens have taken over the planet”. I expected a few titters – but there were none. “The aliens are friendly. They don’t want to hurt us or kill us, but they do think that we humans have too many rights, so we have to get rid of some. In fact, they want us to get rid of 3 of the rights in the bundles I’ve given you.”
And without waiting all 5 of the groups got to work. I didn’t tell them to start, nor did I give them a time limit. They just got started looking out the rights they would ditch. We were surprised, but pleased. But the different ways the groups approached it was interesting:

  • One group decided to sort the rights into 3 columns of “Keep”, “Ditch” and “Maybe” and see where they ended up. By the end of that they had 2 in their ‘ditch’ column so had to think hard about the 3 or 4 in their ‘maybe’ pile and which one they would offer up to their new overlords.
  • Most groups generally put all the rights out in front of them, someone picked one out and made the case for getting rid of it and then the group discussed it. These groups were a bit slower than the one above, but it got the job done.
  • There was one group who, arguing that they wanted one particular member to keep quiet offered up the “Freedom of Speech”. I suggested that his wasn’t wise, so they reconsidered.

In the end, all the groups managed the group, but the only rights all the groups agreed to ditch were “Right to Bear Arms” and “Right to Work”. Most groups found this step quite simple, saying that there were rights you would obviously keep, and others you would like, but don’t “need”. 1 group (not the columns group) said they found this hard because there were 5 rights they were toying with for their 3rd ditch.

This process was repeated twice more. In the second round, each group had to get rid of 4 more rights and the most common casualties were “Right to Assemble Peaceably”, “Freedom of the Press”, “Right to Marriage and Family” and “Right to a Lawyer” – the reasoning being that most of these rights were ‘included’ in other rights (which we would come back to later). One group did get rid of the “Right to Life, Liberty and Due Process” – which the class felt was an interesting choice.
In the final round the groups had to cut their rights down to just 3. After all the class had made their decisions, the “Right to Life etc.”, “Freedom of Speech” and (somewhat surprisingly) “Right to Education” were the winners (i.e – had the fewest groups ditching them). The final interesting point here was that there were members in 2 of the groups who were very determined to get “Freedom of Religion” into the top 3. One of the groups had an equally determined voice that it wouldn’t, but the other required both myself and the cover teacher to step in and impose democracy (3 – 2 to ditch) on the group (despite them already having abandoned the right to vote). This was a slightly unexpected turn.

The Conclusion

Having taken the votes and struck of the rights that our extra-terrestrial overlords had removed, David lead an exploration of what kind of world we now lived in. Some said that many of the rights were kind of repeating themselves. For example, “Freedom of Speech” mostly covered “Freedom of Religion”, “Freedom of the Press” and “Right to Assemble”, but when it was asked whether going to church or the mosque would be “speech” this became less certain. Possibly our egos having been bruised, the class were asked why they got of the “Right to a Lawyer” but kept “Right to Life, Liberty and Due Process”. Most said that a lawyer wasn’t needed for a trial to be fair, and that the “due process” would protect them anyway – but when asked what would happen if the process didn’t include right to a lawyer, there was again, a bit more hesitation.
To wind the class up we introduced the idea that these rights do exists and asked a simple question: Where do these rights come from? Ask any Law Student and they wouldn’t hesitate before saying the ECHR. But the pupils said it was “The Constitution” and “The Bill of Rights”. This highlighted 2 things to us:

  1. The influence of American Legal dramas continues unabated.
  2. We forget that we probably didn’t really know what the ECHR was before we started our degrees. And now we’d forgotten that we’d forgotten that.

Overall, the class again enjoyed this lesson – and I’d like to do it again with a different group (or age range) to see how the answers differ.

Teaching Points

+ This time we were able to control things when strong opinions were being discussed and debated.
+ We managed to cope really well without our usual teacher and her authority behind us.
– Something we weren’t prepared for – he “aliens” scenario actually distracted a few people into focussing on ‘how to beat the aliens’ and not on the Human Rights task at hand.

#StreetLaw 2 – Should It Be a Crime

…or why kids seem to have a basic (strict) morality.

For our second Street Law lesson, David and I decided to do one of the lessons we did at our training: Should It Be a Crime? There was no BBC filming this week – so we were relieved that at least. we wouldn’t have to keep repeating ourselves for the camera. Although it did mean we had a bit more time and could spend less time being mic’ed up and having things re-shot.

The Premise

When we went into the class, we asked the pupils to name any laws they knew. We were pleased that they came out with a list of things like murder, theft and assault (though a little bit of me did one of them to say “the requirement for all contracts in land to be in writing, preferably with a witness to ensure probity”). They were asked what the connection was and they were able to realise that all these laws were about crimes. We never got into what a crime was in a legal way (rules that state can enforce limiting your behaviour) since it would be a little distracting at that time to the task at hand.

The Execution

After last time, we decided to mix up the groups a bit by getting all the pupils to count to themselves up from 1 to 5, then starting again – with all the 1’s being a group; all the 2’s; all the 3’s etc. (this didn’t stop the almost inevitable 1, 2, 3, 4, 5…ehh, is it me…ehh 6). Each group was given a sheet of various scenarios and asked whether they felt what was going on should be a crime, whether or not it actually is or not. There were lots of scenarios, covering petty theft through to environmental damage. But, for most of them, the class were in pretty broad agreement – and if the Bellahouston S3 class were in charge of criminal legislation, life would be tough.
There were a few interesting points from it though. The first was the classes perception of stealing. They all agreed that if someone stole money from someone’s purse, or stole food in order to feed their family then that was definitely stealing and should obviously be criminal. Yet, each group also thought that keeping an extra £5 you were given in your change in a shop should not be criminal. Even when it was pointed out that people in both scenarios are leaving with more money than they’re really entitled to, the answer was that it was the fault of the shop owner hey gave too much change – they had to suffer their mistake.
They also had a particular point to make about one scenario worded this way:

Lilly approaches a man for purposes of prostitution.

The room was very evenly split about whether prostitution should be illegal or not. Most felt that if both people were old enough, and were able to say no, then everything was fine – if you can sell yourself doing any other job, you could sell your services doing this one. But 2 of the 5 groups felt that there was a morality line to be drawn, and that for Lilly’s protection she shouldn’t be allowed to sell her body. Also, Lilly was approaching someone to offer her services, so might have been introducing prostitution into his life (albeit before his refusal) and he didn’t want that.
On a sidenote – during our training in January it was pointed out that the question doesn’t actually tell us who is the prostitute and who is the ‘customer’, but every person in the room assumed it was Lilly. When we suggested to the class that it could be the man that was the prostitute, and Lilly was willingly going up to him because she wanted to pay him, more tended towards decriminalisation, since intrusion was less of a problem. I should note, however, that one boy found the suggestion that the man could be a prostitute very difficult to accept. Equally, many in the class who objected on ‘morality and protection’ grounds couldn’t accept the suggestion of one girl that Lilly might actually want to be a prostitute. A similar position, perhaps, to some of our law makers.

The Conclusion

So in an attempt to draw these things together, we asked the class “What makes something so bad that it should be a crime”? All in all, the class did pretty well. It was agreed that it wasn’t enough that people thought it was ‘bad’ but that it had to “cause harm” to somebody. It was also suggested that you had to be able to catch someone doing it – “it’s pointless to have a crime and you can’t stop people doing it or they’re just going to do it anyway”. Surprisingly, this attitude didn’t stop 4 of the groups opting to keep marijuana use illegal!
If we’d had more time, we’d have maybe discussed how things are at some points illegal and then made legal once attitudes change and what drives that. Does what society perceives as “causing harm” change, and if so how; or is it that we’re now able to catch people more easily? Do computers change this and our perceptions of crime? but alas, lunch was looming and we knew better than that.

Teaching Points

+ Mixing up the groups worked well and encouraged different people to speak.
+ Having the discussions and debate in the groups and across the room got people interested.
– Because of the strong opinions in some matters, the class got a little rowdy. We’ll need to be able to control the class in these situations.

Goodbye Friends…

Today there was a defining moment in Scottish Theatrical history. At 5pm today, the curtain came down on the final ever show the Singing Kettle will ever have. This, for me, is a sad sad day indeed.

The Singing Kettle formed in the 1980s when husband and wife Artie and Cilla started preforming their folk tunes to kids. Joined soon by Gary Coupland who provided the music. With the ‘classic’ line up was established, they entertained a generations of kids. Literally – those who went to the first shows in the 80s then took their own kids to seem them in the early 2000’s. They were, and still are, a much loved Scottish tradition.

Artie and Cilla’s daughter, Jane, was a ‘4th member’ for a time but soon left to pursue other artistic endeavours. In turn, the long-time backstage member, Kevin joined the main troupe. However, the end has since been in sight for a long time. Artie and Cilla retired from preforming in 2012 and, while they stayed on behind the scenes, it was only going to end one way. Anya stepped in to make the group a trio once again – and I saw a the final line-up a few years ago when I took a friends niece and nephew to the show. It was as fun and colourful as it ever had been, with the kids joining in. I am genuinely sad that the Singing Kettle is no more.

The current cast of Kevin, Anya and Gary (who is still there from the start) are starting up a very kettle-esque venture called ‘Funbox‘ that I hope I can one day take my future kids (if they appear) to. It is, with no doubt, the only true spiritual successor to the Singing Kettle and its traditions. but still, I am sad.
I am sad, most of all, that that occasion has passed with little comment or marking. In the grand scheme of things, little will change, but in Scotland’s rich and proud tradition of theatre, especially for children – this is a sad time. It is akin to the Glasgow Kings not having a pantomime. This sounds like an exaggeration – but it’s really not. The Singing Kettle have sold more tickets at the SECC than any other act ever. Stuff your One Directions and your 5 Second of Summers.
And setting that aside they made several series on both the BBC and STV which captured the fun and interaction. You can’t beat an army of kids. Especially when they have a battle cry!

Spout, Handle, Lid of Metal;
What’s inside the Singiiiiiiiiiiiiiiiiiiiiiiiiiiiing Kettle!?

A Response to Calum Steele…

Yesterday, the Chief Executive of the Scottish Police Federation, Calum Steele, published a letter he has sent to every MSP regarding the latest revelations regarding stop and search powers. Many have judged its contents to be organisationally arrogant, legally ignorant and politicly naive. In particular, Lallands Peat Worrier’s response speaks to some of the more ridiculous parts of the letter. However, virtually every paragraph of the statement contains some objectionable claim. Here I have taken a line-by-line approach, hoping to show how smug, misguided, and just downright terrifying the position of the Scottish Police Federation actually is.

The Letter is in blue. My Response is in red.

I apologise for the length of this post, but sometimes these things cannot be helped.

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.
The events of the past week have resulted in a frightening narrative because the story has been frightening. In June 2014, Assistant Chief Constable Wayne Mawson announced in front of a Holyrood Committee that the ‘consensual’ Stopping and Searching [S&S’ing] of  kids under 12 would stop. Last week it emerged that 365 have been searched since that statement was made, two thirds being consensual – that’s about 2 a day. That is frightening.
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.
Why? The Police should, of course, be operationally separate from the Government and Parliament – but that does not and cannot give the Police organisations (in whatever form they take) an unfettered power. There must be oversight, and representatives of the public seem the best people to carry out this oversight.

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.
What is statutory law is not the (formalised) dictate of politicians? And most of the controversy doesn’t stem from statute, but from the common law power allowing officers to exercise ‘consensual’ stop and search. This power is, otherwise, not regulated much. No need for grounds of suspicion. So long as they say yes its alright…right?
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.
They will. The courts have a duty to protect the procedural correctness of a criminal trial – but every piece of evidence disallowed is evidence improperly obtained. And behind that there has been some kind of procedural impropriety. Surely we should be addressing the underlying impropriety and not just saying “no harm; no fowl”? To say that an officer should be able to impinge on someone’s freedom because it won’t do any further harm is, clearly, a misguided view.
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.
It does in some respects – but it seems it may well need updated in order to bolster the rights of citizens and ensure that police officers do not disproportionately interfere with them.

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.
That’s a lot of law but, I admit, all right. There are many statutory powers for officers to S&S people when they have reasonable suspicion. What constitutes a ‘reasonable suspicion’ is loose, but that’s a separate problem. The statutory, clearly defined and tightly controlled S&S powers given to officers under a wide range of statutes (or the ‘dictate of politicians’) are important tools when properly used.

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.
I can’t agree with you here.  Is the law surrounding S&S well understood? I’m a law student – so a biased sample – but if I go up to the ‘reasonable man’, would they know what the law was? Would they know what questions they must answer and which they can refuse to? Would they know they can refuse to a search if asked by an officer…and that they can’t be arrested or detained as a result? I was recently speaking with 14/15 year olds in Govan and many of them were shocked when they were told about their rights in S&S situations. People don’t know – and that could be the fault of the police of politicians, or most likely both.
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.
I appreciate the point here, but it fundamentally misunderstands the situation. The Parliament is not, and indeed cannot, tell the Chief Constable what to do without using legislation – but that is not what has happened. Instead, a senior officer in Police Scotland said that a certain practice would be stopped and now, over 6 months later, it has been found to be still going on. The public and political outcry is not that the Chief Constable (or any other officer for that matter) is not doing what they are told; it is that they are doing what they said they wouldn’t, and not being very successful when they do.

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.
This is a very fair point. Backroom extra-legal discussions aren’t guaranteed to go anywhere or have any real effect.  However it is a common professional courtesy to allow a profession to regulate its own conduct before imposing additional regulation upon it. It could be argued that the discussions of June 2014 was that opportunity, but recent events may be part of the same process. However, should further formal steps be required, the current Criminal Justice Bill going through Parliament would be an ideal opportunity to formally resolve any ongoing ambiguities.

The debate on ‘non-statutory’ or ‘consensual’ searches has unearthed frightening levels of political ignorance.
[No comment]
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.
Very technically, yes. If someone gives their consent to the search (we’ll come back to that)  then it’s a common law, not a statutory search. This is a completely legitimate argument. However, as I’ve asked above, can we be sure what people know what they’re actually agreeing to. Is the consent given freely? Do they know it can be refused? Doesn’t the fact that it’s a police officer, someone most are taught to follow without reservation, who is asking for permission change the balance of the power dramatically. So while consent is technically given, is ‘consent’ properly given?
At an even more basic level, and returning to the news that is the root cause of the whole issue, we have to ask whether consent can be given. In Scotland the age of legal capacity (when consent can be given), under statute, is generally 16. This is indisputable. There are some circumstances where the age consent is lower, such as instructing a lawyer in a civil matter, when this age is reduced to 12 but those sections do not affect legal capacity as regards “any criminal matter”. given the age of criminal responsibility in Scotland is 12, this is arguably the lower limit. So it appears that somebody under 12 cannot consent to a search by police. The only way they could is if getting searched by Police is “…commonly entered into by persons of [their] age and circumstances”. If that is the case, then it is the clearest sign yet that there has been overuse (and possibly abuse) of common law S&S.
Moreover, the description of a consensual S&S as “…not amount[ing] to a search in the more formal sense of the word” is clearly nonsensical. A consensual search is still able to lead to a prosecution. Evidence found during a consensual search is still capable of being led at a trial. In short, a consensual search can lead to formal (and potentially drastic) consequences, so constitutes a formal search. Also, if a consensual S&S is described as not really being a search “in a formal sense”, does this not increase the likelihood that a person does not truely understand the nature of what they are consenting to? The very nature and understanding of what a common law consensual search is unclear, much less when and where they are appropriate.
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?
No. What’s being suggested is that people are only able to “co-operate with police officers on a co-operative basis” (people aren’t voluntarily lining up to get patted down by officers) when they are actually legally able to do so. And even then, only when they understand what they are consenting to – and they know that they are able to withhold that consent without an officer being able to override that consent as a matter of course. And even then, they should only be for consent when the Police officer has reason to ask for it – which would surely be those listed in the statutory general S&S power, rendering the Common Law power essentially superfluous.

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.
I agree – it should be put in clearly labelled legislation, such as the latest Criminal Justice Bill.
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.
This paragraph is troubling in a whole number of ways. As regards Statutory S&S, if individuals are being stopped to fit in with a “target based approach” then it follows that people stopped with the purpose of meeting the target are being stopped illegally, since the officer would not have a reasonable suspicion in order to stop them. If people are “voluntarily” submitting to being searched, the it demonstrates that the police have been using these searches indiscriminately and unreasonably in order to get the numbers. Either way, it has been accepted that Police Scotland has used these S&S powers improperly.

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.
If it is “understandable and entirely correct” politicians are able to question the use of S&S, it surely follows that they can criticise a use they disagree with. And officers’ attempts to account for the use of S&S on 12 year olds has been ineffective at best and downright draconian at worst. Last Thursday’s Scotland 2015 on BBC 1 is a prime example of this.
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.
For the reasons described above, any rationale offered for ‘consensually’ S&S’ing someone who is unable to consent is, most likely, going to be insufficient to justify searching. Surely, if an officer does have good reason to search someone under 12 (as could absolutely be the case) it would be on a statutory ground, and not a consensual one.

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.
This is not a crime.
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.
Suspicion that a person (regardless of age) is carrying drugs or weapons is grounds for a statutory (i.e. non-consensual) S&S. Officers have searched 365 under 12s since June 2014. From records c.2/3s of these were consensual (c. 122 Statutory; 243 Consensual). If under 12’s are being searched on suspicion of carrying weapons and/or drugs, why would they not be statutorily searched – where reasons must be given and an individual’s rights are more clearly defined.
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.
As I’ve said – if people are genuinely being S&S’ed on the suspicion they are carrying drugs or weapons, this would be covered by statute.
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.
If the common law power of S&S were to be curtailed after this uncovering of impropriety (as it may be), and the police has no statutory power to act in a particular situation, it cannot act. To do so would be to have a police force working outside the law – an unacceptable state of affairs.

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.
Often under statute, but not always – and indeed not “often”. According to Police Scotland figures, between March 2013 and April 2014, there were 640,699 stop-and-searches, of which 449,095 were consensual. These figures are in line with the 2/3rds proportion for under 12s – suggesting a much wider issue than is considered here.
They can also ask individuals to consent to search and it’s up to the individual whether they consent or not.
As described above, giving consent is not necessarily the same as giving informed consent.

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 may well be the intention, but according to Police Scotland figures, only 29.9% of statutory searches were positive, and only 15.9% of consensual searches were. There are major deficiencies in judgement in when and why officers deploy this power, regardless of how it is exercised.
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.
What has occurred in the past week or so is not a “political dictate” – it is a genuine public concern that the police have either abused or misused a power they have been entrusted with. It has become apparent that the law in this area is not “well-developed” and indeed the continued existence of statutory and common law rights has led to a murky situation where officers appear to be using one in  place of or as support to the other. It is clear, at the most basic, the regime is in urgent need of review and clarification, for political, police and public benefit.

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.
This may well be the case, and an issue worthy of consideration and address – but it is separate to the matter at hand. How police officers, both as individuals in the service of the public and as an institution with almost unrivalled power and authority in society, discharge their duties and use their powers for that purpose is its own distinct concern. The fact that a commitment was made to a parliamentary committee, then broken nearly daily is a concern.
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.
The repeated attempts, of which this letter was one, to attempt to justify these breaches by saying either ‘The Police have the power to do what they’re doing’, ‘The Police are being used as a political football’ or ‘Would you rather we didn’t have the power at all’ suggest the Police have failed to appreciate the genuine public and professional concern these issues have raised.  The argument over whether there should be regional forces, or one national force has been had and the various Police Scotland bodies have now been established. It is not in everyone’s interests to ensure it works as well as possible.
The final allegation of political interference is an unusual one to make. When someone worries about governmental control of the police, it is usually that the government are using the force too control and diminish the public. In this case, it appears the opposite – that the Parliament wish to examine how the police are using their powers to disrupt and individual’s day-to-day business (sometimes with justification, sometimes not). The Police Force in Scotland, as has been acknowledged above, has had a long and proud history of policing by consent but this, along with unpublicised arming of officers has shaken public confidence in this concept. It is now of the utmost necessity that all parties work to rebuild this confidence and ensure the public, particularly the young, trust, and do not fear, their officers.

My thanks to Elaine Ferguson and Alistair Sloan for their on-line discussion and feedback.

#StreetLaw 1 – Stop and Search

…or a how a group of S3 pupils played a part in this week’s FMQs.

I’ve written before about The Law Society of Scotland’s expanded Street Law programme and how excited I am by it. On Tuesday, I took my first lesson at Bellahouston Academy with an S3 class. The subject was Police Scotland’s use of Stop and Search [S&S] – and the BBC came in to film some of for a report they were doing – more of which later.

The Premise

The first thing we asked the class was whether any of them had been Stopped and Searched by the police. One boy mentioned an incident where a whole group of people were searched leaving a party – although he did mention that someone was stabbed, so maybe that was justified. No-one else at this point said they’de been S&S’ed, which was concerning as we were going on the premise that at least a few would have been. It wasn’t fatal, since we wan’t to discuss a more practical side of the law, but it would still have been good form more people to have been able to relate to the issue at hand. Never the less, my Street Law Partner (David) and I powered through and carried on.

The Execution

The kids were put in groups (or more accurately, worked in the groups they were in since the BBC kept stealing our time wiring us up with microphones and whatnot) and given sheets with different scenarios on them. For each, the class were asked whether they thought the Police should have the power to stop and search the people involved. For example, one asked:

Tim and his mates are playing football in the park when the police come and decide to search them all. The boys are known for being trouble in the neighbourhood so the Police line them all up against a wall and search them all individually. They find nothing.

All the groups agreed that Tim and his team’s pitch invasion wasn’t justified at all. Some even pointed out that just because someone was misbehaving in the past, you can’t assume they’re causing trouble this time too. I wonder if the girl who said that knew she’d given a fundamental rule of Scottish Evidence law? But that’s a pretty uncontroversial scenario. The one that caused the most debate was this one:

It is a busy Saturday afternoon on Buchanan street and a man has been stabbed. The last thing he manages to mutter before he dies from his injury is that it was a tall man in a turban. The police then pull over everyone on Buchanan Street in a turban to be searched for the weapon.

The class was quite evenly split on this. Some argued that, since only a certain group of people wear turbans, it was racial discrimination while others said that they since the police had nothing else to go on, in this case, it could be justified. This led to a great bit of debate about what could justify a search. One boy suggested that the police needed to have a ‘good hint’ that a person was up to something dodgy in order to S&S them – stumbling upon the legal definition that states that the officer must have “reasonable grounds of suspicion” to search someone.

The Conclusion

During the the discussion, one boy shared that, just a few weeks ago he was S&S’ed by the police on the way home from school. He was with his friends and the police asked to S&S him. Two points of his story stood out for me. The first was that the police officer never told him what he was looking for. It was only when the boy asked what he was looking for he said he was looking for drugs. Then the boy said that when the police asked to search him he said yes (i.e it was a “consensual search”). I asked why, and he said that it was because they were the police and he didn’t know if he could say no.

This got us wondering – what did the class think they had to tell police if they were caught. Answers we got included your name and address (which people who are being S&S’ed are legally required to give the officer stopping them) but also included where you’re going, what you’re doing and where you’ve come from. There were looks of genuine shock when we told them that they didn’t have to say a thing to police, other than confirm their name, address and nationality. It was obvious that these kids didn’t know their rights – and now they were a little more aware.

The last thing we did was ask two questions. The first was whether the class felt knew more about S&S than when we started – the answer being a resounding yes (which was comforting). The second was whether, after all the discussion and issues we’d identified like unfair use and police abuse of the power, the class would keep S&S or get rid of it altogether. Surprisingly, the class voted about 3:1 to keep it. Maybe there is some good in it after all.

The Fallout

As I mentioned, BBC Scotland were there filming the class for a story on S&S they would be running that week. We didn’t know what they were looking for or what they would use – but seemed pretty keen to include some of the class’s opinions in their piece.
On Wednesday it emerged that Police Scotland, despite saying last June they wouldn’t search under 12s, have S&S’ed over 350. On Scotland 2015 the Police Scotland representative argued that since most of these were consensual, it was OK. But, thinking back to my Street Law class, was it true consent – or is it that the kids didn’t know they didn’t have to consent? Bearing in mind children under 12 generally can’t agree to much – even if they said yes freely, can that still be taken as proper consent?
The following day, partly in thanks to the BBC’s report, Ruth Davidson (Scottish Conservative Leader) asked a question at FMQs on police use of stop and search generally, given that around 90% of S&S’s are negative. I like to think that David, myself and the S3 class at Bellahouston helped shape the agenda for a week or so.

Teaching Points

+ Working in smaller groups, feeding back to the class is effective.
+ Relating directly back to the class’s experiences is a good way to get them involved.
– Mix up the groups a bit more – encourage new discussions.