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Consultation on Police Powers to Search Children and Young People for Alcohol

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7. Arguments for and against new powers to search children and young people aged under 18

The independent Advisory Group members were unable to reach a concluded view on whether new search powers for alcohol were needed. Some of the main arguments for and against new search powers are set out in this section.

FOR - The police should be given new powers to search children and young people for alcohol

AGAINST - The police should not be given new powers to search children and young people for alcohol

Not having a search power could put children and young people at risk of harm.

There were 158 non-statutory (or consensual) searches for alcohol of children and young people aged under 18 between 1 June 2015 and 31 December 2015 where alcohol was found. If police weren't able to search for alcohol, they might not have been able to recover this alcohol.

Having a search power could help the police to find alcohol that a child or young person under 18 had concealed.

If a child or young person under 18 told an officer that they didn't have any alcohol, but they did and they had concealed it, then a power to search would allow the officer to look for it and confirm the officer's reasonable suspicion.

Having a power to search someone could avoid the need to arrest them.

If the police aren't given a legal power that lets them search a child or young person who they think has alcohol, the only way the police could search that person would be if they had grounds to arrest them. Being able to search a child or young person for alcohol may allow the police to act early and effectively to prevent any harm without resorting to arrest.

In many places in Scotland drinking in the street and possessing an open container of alcohol in public is an offence under local by-laws.

A new power to search for alcohol would support earlier intervention in the interest of wellbeing and safeguarding children and young people by preventing offences occurring.

In England and Wales, Police Community Support Officers (PCSOs) have the power to search a person for alcohol in certain circumstances.

Police constables in England and Wales don't have a power to search people for alcohol. But a PCSO can search a person, if that person has refused to surrender alcohol after having been requested to do so by a PCSO[11].

A new power to search would be tightly controlled - it could be used only where there were reasonable grounds to suspect that the person had alcohol, and it would be covered by the Stop and Search Code of Practice.

Reasonable grounds for suspicion is the legal test that an officer would need to satisfy. An officer would need to be able to explain and justify the basis for their suspicion by reference to intelligence or information about, or some specific behaviour by, the person concerned. The Stop and Search Code of Practice would be used to add any extra rules and guidance about how the search power was used. Also, in deciding whether or not to search a child for alcohol, a police officer would, by law, have to treat the need to safeguard and promote the wellbeing of the child as a primary consideration[13].

The police already have enough powers to require children and young people to surrender alcohol.

In over 9 out of 10 cases (94%) where alcohol was surrendered by a child or young person aged under 18 from June to December 2015, the police did not need to search that young person (2,551 cases where alcohol was surrendered without a search for alcohol and 158 occasions where alcohol was surrendered after a search for alcohol).

The Scottish Government is not aware of any evidence that any young person who was not searched refused to surrender alcohol to an officer or that an officer needed to consider arresting anyone for refusing to surrender alcohol.

There are no circumstances in which a new power to search could be used where the police cannot already use their existing powers to require a young person to surrender alcohol.

The police would only be able to use a search power where they had reasonable grounds to suspect that a young person had alcohol. But if they have reasonable grounds to suspect possession then they can use their existing powers to require a young person to surrender the alcohol. We have not seen evidence that any young person has ever refused to surrender alcohol where the police have been able to demonstrate reasonable suspicion of possession and when asked to do so.

A new search power would not give the police any new powers to take alcohol away from a young person.

The police already have the power to require a young person to surrender alcohol. Failure to surrender the alcohol would be an offence and the officer would have the power to arrest the person - as outlined in Part 5 of this paper. Giving the police a new search power would not change that - it would not give the police any new power to take alcohol from a young person.

There should not be a power to search for something that is legal.

Possession of alcohol is legal (although public consumption may be illegal where local by-laws are in place). The police should not have the power to search for something that it is legal to have.

There is no need for police officers in Scotland to have a search power that police officers in England and Wales don't have.

Police officers in England and Wales don't have a power to search young people for alcohol[12]. Scotland is a similar society with similar laws.

A new search power could lead to more searches of children and young people.

At the moment, in over 9 out of 10 cases where a child or young person under 18 surrenders alcohol to the police, the young person does not need to be searched (2551 people under 18 surrendered alcohol without a search from June to December 2015).

The police can use their existing powers to require a person to surrender alcohol only where they have reasonable grounds to suspect that a person has alcohol. If a new search power is created, it will be subject to exactly the same 'reasonable grounds' test.

This would mean that, if a new search power is created, on every occasion where an officer has the power to require a child to surrender alcohol under their existing powers, the officer would also have the new power to search that child.

A new search power could risk harming relationships between children and the police.

From June to December 2015, 9 out of 10 searches of children and young people for alcohol found no alcohol (there were 1629 non-statutory [consensual] searches of children and young people for alcohol - alcohol was found in only 158 searches).

The Scottish Government is not aware of any research into whether these searches affected people's relationships with the police. However, concerns have been raised by a range of bodies about the potential impact a power to search for alcohol might have on relationships between children and the police. For example, when the UK Parliament was debating the 1997 Act that gave the police their existing powers to require people to surrender alcohol, the absence of a power of search was mooted as 'one of the great strengths' of the law as it was feared that searches might create tension and conflict between the police and young people[14].