While Police Scotland has been adamant that the tactic protects children and young people, and prevents more serious crime, the statistics simply do not bear this out. What they say is that children and young people have been targeted disproportionately by "consensual" stop and search, which has had a negative impact on their perceptions of the police. The announcement the practice would come to an end came after an independent advisory group reported their findings to the Cabinet Secretary for Justice.
The group, of which my own office was part, was chaired by QC John Scott and was tasked with considering whether Police Scotland should operate a presumption against consensual stop and search or whether the practice should end altogether. It was also tasked with developing a draft code of practice to underpin the use of this practice in Scotland.
In their findings, the advisory group pointed to the discriminatory nature of "consensual" stop and search, saying: "On the whole, stop and search, and particularly non-statutory stop and search, is used disproportionately on children and young people, in particular young men, in Scotland. To a significant extent, the tactic has been used on children and young people in areas afflicted with poverty and social deprivation."
Lawfulness and legitimacy questioned
The group noted: "Non-statutory stop and search lacks any legal framework and is of questionable lawfulness and legitimacy, with poor accountability."
The group highlighted that Police Scotland was often using "consensual" stop and search to search young people for alcohol. Police Scotland has stated that these searches were necessary to safeguard children and young people. The group questioned the legitimacy of this approach, noting that while there is a power of seizure of alcohol, there is actually no statutory power to search for alcohol. The group recommended that there be an early consultation on whether to legislate. This would create a specific power for police officers to search under-18s for alcohol, where they have reasonable grounds to suspect it is in their possession.
We need to think carefully about any unintended consequences of such power to ensure it does not lead to the criminalisation of more children and young people. I look forward to children and young people playing an active role in this consultation.
The group also recommended that a duty be placed on police constables to consider a child's best interests when deciding whether to search a child under 18 who is not in custody. This is welcome, as is the recognition that some groups of young people have historically been more likely to - unfairly - attract police attention. This includes young people with "hidden" disabilities, such as autism. It is vital that Police Scotland ensures officers are properly trained to recognise and take into account the particular needs of all children and young people.
The final task of the group was to develop a draft code of practice to underpin the future use of stop and search in Scotland. This draft code will now be consulted on widely, before being placed on a statutory footing. When it comes into force, "consensual" stop and search will end. On behalf of children and young people across Scotland, I very much look forward to that day.
Tam Baillie is children's commissioner for Scotland
