Should Police be able to search children for alcohol?
‘C52 can you attend Brookbank Park please? Reports of a dozen youths drinking.’
In Scotland in the rare summer months this is a regular call. Invariably officers attend and if the youth don’t scatter on the arrival of the police, often find them in possession of open and closed containers of alcohol along with various backpacks and bags. Officers can readily establish that many of the youth are underage.
I’d ask you initially, what is your expectation of the officers at this time? I mean what do you as an ordinary member of the public expect that they will physically do in this instance?
I ask this as in a short period of time consensual stop and search will be removed as a tactical option for police officers here in Scotland. Incidentally for a number of logical reasons I fully support this. In the above scenario however it will remove the officer’s option to search the backpacks of the juveniles AND adults at the above incident for more alcohol than that which is readily on display for the officers.
Officers will be left with the current residual power that is well summarised by Kath Murray in this great article linked here which I encourage you to read in conjunction with my thoughts to get an alternative view.
In summary, s61 of the Crime and Punishment (Scotland) Act 1997 allows police to require those under 18 to surrender alcohol to police where they have reasonable grounds to suspect it’s in their possession. Additionally the power of surrender applies where the constable suspects someone over 18 is supplying it or intending it for consumption by those under 18. Constables can require the name and address of the persons and crucially, can arrest if they don’t comply.
You’ll note no power of search is attached hence a consultation has taken place as to whether a power of search is required. Arguments against a power of search by the likes of Kath and John Carnochan, formerly the Director of the excellent Violence Reduction Unit have been made, many of which I agree with, such as investing more in stopping sale to youth through licensing laws. These can be read in Kath’s article.
As a result of the consultation it would appear that my force will not seek a power of search at this time and will wait to evaluate the evidence of the effect of the removal of consensual stop and search on this area of policing before making a decision.
I’d like to take the opportunity to point out some alternative thoughts on the arguments against the introduction of a search power as well as point out some potential practical pitfalls that may arise from a failure to attach a power of search to s61.
It is argued that there is no robust evidence to support the requirement for a search power. Indeed there was a serious issue with the quantitative data in this area due to Scottish Police search recording practices. Recording has got significantly better however I would contend that for a variety of human and technical factors with recording, the current data is simply not as reliable as we might hope. I’m happy to chat further about these for those with an interest.
So what do we do if the quantitative data is unreliable? Well there is an area of data that has perhaps not been given the appropriate level of research to my mind that might offer a differing perspective: Qualitative analysis of officer experience in this area of policing. For whatever reason we seem to value the opinions of officers who are actually delivering this capability less than the hard data, despite its clear faults. Moving forward we should be doing more to capture the ‘lived experience’ of officers in this area to better inform the debate. Arguably, had we done so earlier we would have detected the issues arising from stop and search in Scotland over the past few years before they came to a head.
It is correct that alcohol is not illegal and it is argued that if the aim of stop and search is to prevent and detect crime, then there is no justification for a search power for alcohol. However I would argue in this instance a search power attached to s61 has little to do with the prevention and detection of crime and much more to do with reducing harm to youth who have not reached the legal age to drink and can put themselves at significant risk when they drink, especially in these environments.
There are very reasonable concerns raised with regards to criminalising children by use of these powers, drawing young people into the criminal justice system for relatively minor offences such as drinking in public. Again I would submit there is a sensible solution to this. Decriminalise the related offences for those under 18. We can continue to report them to the Scottish Children’s Reporter to ensure their welfare needs are taken care of without them being unnecessarily drawn into the CJS.
Lets deliver some genuine clarity into the tactic and make it about the welfare of the child. Lets make it about ensuring that drunk children don’t end up a victim of crime or in A&E having taken unwell due to excessive alcohol consumption.
It is also argued that the introduction of the power would be ‘a sledgehammer to crack a nut’. Again, this is a reasonable proposition. However I would point our that with the removal of consensual search the only alternative for officers who reasonably suspect that a juvenile has alcohol concealed in a backpack is to arrest that juvenile. Is this really what we are seeking to achieve?
So what constitutes ‘reasonable suspicion’ is this instance? Well lets look at the above scenario. Would ordinary members of the public think its reasonable for the officers to search the bags of the youth in the park? I would suggest that the presence of alcohol at the scene and the circumstances of the youth socialising together as a group may give rise to reasonable suspicion. Perhaps we add to that a suspicion that the youth has already consumed alcohol? Others may have a different view but its one worth bottoming out rather than discounting that we can come to a sensible understanding.
Okay, so I’ve attempted to provide an alternative view to some of the key arguments against a search power. Now lets take some time to look at how the failure to provide a search power might play out in the above scenario once consensual stop and search ends:
- The officers attending require the surrender of visible alcohol from a number of youths, which they do. They take their details and depending on age will caution and charge them with the offences detected or arrange to convey them to their parents or guardian to do so in their presence.
- At this time they also note a couple of individuals, two 15 year olds and a 20 year old, whom they suspect have consumed alcohol but do not have any on display. The 3 individuals do have backpacks at their feet though. They make clear they know the officers can’t search them.
- In each instance the officer states that they reasonably suspect that the 3 backpacks may contain alcohol and using their best powers of persuasion to require it’s surrender. They refuse. At this time the officers, left with no other alternative, arrest the two 15 year olds and the 18 year old.
So have we achieved the aim? Well it could be argued that we have safeguarded the juveniles however we have also succeeded in arresting them on suspicion of an offence (that incidentally they may not have committed – reasonable suspicion is just that – a suspicion at that time).
How do you think this would impact on the relationship between officers and the youths in question, another concern raised with regards to the provision of a search power? I submit that it is preferable to provide officers with a search option aimed at reducing harm to the juvenile rather than resorting to arrest.
Of course, officers could simply seize the alcohol on display and not seek to establish reasonable grounds to require the surrender of any alcohol in the backpacks. But would we be achieving the aim? Is there any point in seizing the alcohol on display but not that in a sealed backpack? Lets not kid ourselves here, youth will know officers cannot search, will be videoing them on their phones and challenging them to arrest them. To suggest otherwise perhaps once again indicates a failure to investigate the qualitative experiences of officers who regularly attend large groups of youth in possession of alcohol who can attest to their behaviour when under the influence. Do you want to watch the officers walk away from the 15 year old whom subsequently videos himself pulling out a bottle of Buckfast to taking a swig from it? Have we really protected the child in that instance?
So let me finish by being a little bold and making some predictions as to how the next six months will pan out if no search power is provided:
- Officers will require the surrender of what they see only and continue to report youth for drinking in public.
- Officers will likely not make surrender requirements of those with sealed bags – mainly because they genuinely don’t want to arrest kids and they will perceive they have not been given the legislative tools to do the job that is being asked of them. They’ll also be mindful of complaints from parents whose children have been arrested but subsequently found to not have alcohol in their possession.
- With the best will in the world to stop it from happening, a very small percentage of officers may search the backpacks anyway and record it as a surrender.
- Officers may appear on youtube attempting to cajole youth into surrendering alcohol, some will I guess resort to arrest for this minor offence, no doubt being videoed restraining the youth and some will be seen to walk away.
- The quantitative data will show lots of surrenders and few arrests, the policy will be declared a success and no search power will be granted. Meantime the lived experience will tell a very different story.
The practical impacts of not providing a search power could result in us both failing to reduce harm to youth who drink as well as increasingly alienating both youth and officers, damaging relations between them. There are much better alternatives such as decriminalisation in conjunction with a search power, even if we decided to make that power conditional on an initial refusal to surrender on request.
Ultimately it is for the community to make clear to police what they wish to achieve. If they don’t want us to search youth for alcohol, then of course we won’t. Though can I humbly suggest that we invest in widely researching the practical impacts of policy change with officers who are required to enact it before we make our decisions. There are thousands of us in Scotland to ask.
So you’re a member of the public. What do you expect the police to do if they find your 14 year old in a park with other youth and adults drinking booze?