Under-regulated and unaccountable? Explaining variation in stop and search rates in Scotland, England and Wales

ABSTRACT

From a position of near parity in 2005/2006, by 2012/2013 recorded search rates in Scotland exceeded those in England/Wales seven times over. This divergence is intriguing given the demands placed on the police, and the legal capacity to deal with these are broadly similar across the two jurisdictions. The aim of this paper is to unpack this variation. Using a comparative case-study approach, the paper examines the role of structural ‘top-down’ determinants of policing: substantive powers of search, rules and regulations, and scrutiny. Two arguments are presented. First, we argue that the rise of stop and search in Scotland was facilitated by weak regulation and safeguards. Second, we argue that divergence between the two jurisdictions may also be attributed to varying levels of political and public scrutiny, caused, in part, by scrutinising stop and search almost exclusively through the prism of ‘race’. In Scotland, the significance of these factors has been made evident by dint of organisational developments within the last decade; by the introduction of a target driven high-volume approach to stop and search in Strathclyde police force circa 2007 onwards; and the national roll-out of this approach following the single service merger in April 2013. The salient point is that the Strathclyde model was not hindered by legal rules and regulations, nor subject to policy and political challenge; rather a high discretion environment enabled a high-volume approach to stop and search to flourish without challenge.

KEYWORDS:

• Stop and search
• legal rules
• police discretion
• police accountability

Disclosure statement

No potential conflict of interest was reported by the authors.

ORCID

Genevieve Lennon http://orcid.org/0000-0001-8275-5332

Kath Murray http://orcid.org/0000-0003-1941-9525

Notes

1 These were: Strathclyde, Lothian and Borders, Central, Fife, Tayside, Grampian, Northern, Dumfries and Galloway.

2 In addition, Scotland has powers relating to offences involving areas subject to a special scientific interest notification (Nature Conservation (Scotland) Act 2004, s.43) and hunting wild animals with dogs (Protection of Wild Mammals (Scotland) Act 2002, s.7). England and Wales have powers relating to poaching offences (Poaching Prevention Act 1862, s.2). There are two further areas covered by each but in different ways. First, Scotland provides powers of stop and search to constables and water bailiffs in connection with offences relating to salmon and fishing, whereas only the latter have such powers in England and Wales (Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, s.53 c.f. Salmon and Freshwater Fisheries Act 1975, s.31). Second, both grant constables’ power to stop and search persons or vehicles in relation to offences against deer, but in Scotland a warrant is the norm, with a requirement of urgency to search upon reasonable suspicion without a warrant (Deer (Scotland) Act 1996, s27(4)(b). C.f. Deer Act 1991, s.12(1)).

3 PACE 1984 (Codes of Practice) (No. 2) Order 1990, SI 1990/2580.

4 PACE (Codes of Practice) (Statutory Powers of Stop and Search) Order 2002, SI 2002/3075. See now Code A para.1.5.

5 Mid-2014 population estimates: England and Wales, 57,408,700; Scotland, 5,347,600 (ONS, 2015).

6 Alcohol searches and seizures were recorded separately from June 2015 onwards. The respective number of alcohol searches and seizures prior to this point is unknown.

7 Space precludes a detailed consideration of gender. Whilst there is some evidence of males are searched disproportionately, this does not appear to be sizeable, compared to recorded data on gender and offending (Murray 2015a, p. 150).

8 The forces were: Avon and Somerset; Bedfordshire; Cambridgeshire; Cheshire; Cumbria; Derbyshire; Dorset; Essex; Gloucestershire; Gwent; Lancashire; Norfolk; North Wales; North Yorkshire; Staffordshire; Suffolk; Sussex; Thames Valley; Warwickshire; West Mercia; West Midland; West Yorkshire.

9 See: APPG, 8; HMIC 2015.

10 In December 2015, Police Scotland introduced advice slips which inform a person of the officer's details and the reason for the search.