Recent events regarding ‘stop and search’ in Scotland should deliver some sharp lessons in political accountability

The rise and recent fall of mass stop and search in Scotland is an extraordinary phenomenon. Here, Dr Kath Murray examines the implications for human rights and argues that recent events in Scotland should deliver some sharp lessons in political accountability.

This post originally appeared on Democratic Audit – Scotland

Credit: Ninain Reid, CC BY 2.0

The rise and fall of stop and search in Scotland is, by any measure, an extraordinary phenomenon. From the mid to late-2000s, recorded search rates increased exponentially, peaking in 2012/13, at a rate seven times higher than England and Wales. Recorded search rates began to fall shortly after the amalgamation of Scotland’s eight police forces into Police Scotland in April 2013, gradually at first, and then, at a galloping rate. By July 2015, recorded search rates had fallen around seventy-five percent on the same period in the previous year.

The post-reform drop signalled a volte-face for Police Scotland and the Scottish National Party, prompted in the main by the unprecedented degree of critical scrutiny levelled at the single service. Prior to 2015, the SNP roundly endorsed mass stop and search, with sky-high search rates and falling rates of violence viewed as incontrovertible evidence of a deterrent effect. As the then Cabinet Minister for Justice Kenny MacAskill remarked, ‘it’s not rocket science’. Relatedly, the fact that most searches were on a non-statutory basis, without reasonable suspicion or legal authority was accepted without reservation. Unfortunately, as the Scottish Human Rights Commission pointed out, the tactic appeared to be unlawful and open to challenge under the Human Right Act 1998. These observations, together with the recommendations of an Independent Advisory Group on stop and search, eventually prompted the Scottish Government to scrap the tactic and look to regulate police practice by dint of a statutory Code of Conduct.

Democratic deficit

The stop and search controversy revealed a sharp disjuncture between the progressive political rhetoric that currently prevails in Scotland and on-the-ground police practice. Whilst the Scottish National Party has commendably positioned itself as the defender of human rights, roundly opposing the proposed abolition of the 1998 Human Rights Act, there appears to be a longstanding democratic deficit around some of Scotland’s most vulnerable young people, whose rights seem more precarious, in part, though dint of unregulated policing policies.

Looking back over the last two decades, a common thread can be traced between the intensive policing approach that underpinned the rise of stop and search in Scotland and SNP policy. In 1997, the Institute of Economic Affairs, an influential free market think tank, published a collection of papers entitled ‘Zero Tolerance: Policing a Free Society’. Contributors included William Bratton, the NYPD Commissioner associated with intensive stop and frisk policies in New York City, and Ray Mallon, the detective credited with introducing ‘zero tolerance policing’ in the UK. A paper by the then Chief Constable of Strathclyde police, Sir John Orr, set out a robust defence of ‘Operation Spotlight’, a sustained crackdown on ‘quality-of-life’ crimes, memorably described as ‘community policing with the gloves off’. Whilst distancing Spotlight from the divisive rhetoric of ‘zero-tolerance’ policing, Orr laid claim to the same set of sensibilities and policing solutions:

‘In common with America, we had undergone a decade of attempting to understand and explain the behaviour of this loutish minority. ‘Understanding’ did nothing to stop the problem, and little to alleviate the misery experienced by the law-abiding majority… Diversion is rightly an issue which the police should support and encourage, but it should not be their function. For example, the police should visit the youth disco or fledgling football team to ensure that they are not undermined by the intrusion and actions of thugs.’ (1997; 112, 116)

Echoing Orr’s sentiments, that year the Scottish National Party set out its commitment to zero-tolerance policing in the 1997 General Election manifesto:

‘The SNP has supported initiatives that seek to reduce crime by means of a “zero tolerance” approach: we will encourage such initiatives throughout Scotland and support them with additional resources for Scotland’s police forces.’

From circa 2007 onward, following the appointment of Sir Stephen House as Chief Constable of Strathclyde, recorded rates of stop and search escalated. Again, the SNP 2011 manifesto trumpeted Strathclyde policing methods:

Our plans are based on proven police action that works. We have increased the use of stop and search – there were 250,000 in Strathclyde last year alone. More stop and search has meant fewer people carrying knives through fear of being caught. Those who do carry are more likely to be caught and are going to prison for longer –

More recently, the former First Minister, Alex Salmond protested that “the attack on the policy has been on the basis of civil liberties and the claim that essential freedoms are at risk if young people are regularly stopped by the police.”

Policing, government and accountability

Despite pledging support for volume stop and search, one of more striking facts was that no one appeared to know the extent to which the tactic was being used, principally because no one was counting, or at least not in a meaningful way that involved analysis or evaluation.

In part, this omission can be related to the low-profile nature of stop and search before Police Scotland, and relatedly, the established view that stop and search was a ‘race problem‘ and an ‘English issue’. As the Scottish Police Federation commented, stop and search was conventionally seen as a Metropolitan police problem. Put another way, the fact that working class white boys were routinely stopped and searched without reasonable suspicion didn’t seem to count. The result? By 2010, the number of recorded searches on sixteen-year old boys in Glasgow had outstripped the resident population of sixteen-year old boys threefold.

The fact that no one was properly counting also reflected a wider lack of national accountability around policing, and relatedly, the weak oversight of public sector bodies in Scotland. Professor Paul Cairney explains:

The Scottish Parliament already lacks the ability to gather information independently – it tends to rely on bodies such as the Scottish Government to provide that information. It does not get enough information from the Scottish Government about what is going on locally. Scotland lacks the top-down performance management system that we associate with the UK Government, and a greater focus on long term outcomes removes an important and regular source of information on public sector performance.

Looking at the criminal justice process, it is difficult to access many statistics, either because they are not counted, they are counted in a piecemeal way, or they are stuffed down the back of the internet sofa. Scotland lacks data on fundamental police powers such as arrest and detention. Only positive breath-tests are recorded. Statistics on deaths in police custody are limited snapshots, compared to the more detailed, longitudinal data produced by the IPCC. A cursory overview of policy evaluations commissioned by the Scottish Government show that essential data are missing, from reliable measures of knife crime, to the number of children successfully diverted from the criminal justice system. In general, the criminal justice process seems opaque and disjointed.

Keeping count on human rights

By dint of the barrage of criticism directed at Police Scotland, the use of stop and search is now far more accountable. However, the degree of political damage inflicted in the process should deliver some sharp lessons in political accountability and responsibility, particularly around human rights. As researcher Lucy Hunter Blackburn observes in a sharp analysis of human rights under the SNP, ‘it’s a complex place, the moral high ground’. Public sector bodies, including the police, have a statutory responsibility to behave in a way that does not breach the rights of individuals, as identified by the European Convention of Human Rights. The SNP may have progressive ambitions in relation to human rights, yet in many areas Scotland lacks the data and scrutiny mechanisms to pin these down.

—

This post represents the views of the author and not those of Democratic Audit – Scotland, nor of any organisation associated with it. Please read our comments policy before posting.

—

Dr. Kath Murray is a Research Associate at the School of Law, University of Edinburgh. Her academic profile can be found here.