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.

2 thoughts on “A Response to Calum Steele…”

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