In the current controversy about “consensual” or “non-statutory” stop and search in Scotland, it has been suggested that the police might be willing to abandon this practice in return for a specific power to search children for alcohol. From the BBC News website today:
“Tackling under-age drinking and the anti-social behaviour and crime associated with it is one potential problem. At the moment, officers can confiscate booze from under-18s but have no specific power to search for it. The police would like the law changed to grant them that power before they give up “consensual” searches.”
At first sight, there is something odd going on here. Under section 61 of the Crime and Punishment (Scotland) Act 1997, if the police have reasonable grounds to suspect that a person under 18 is in possession of alcohol in a public place, they may require that person to surrender the alcohol. They may then dispose of it as they see fit.
But what if that person refuses? Section 61 confers no power to search them to establish if the constable’s suspicion was correct. Is this not an anomaly which needs to be fixed – to, as the BBC report suggests, combat anti-social behaviour?
Perhaps, but the history of section 61 is worth noting. It was introduced as a parallel provision to a short Private Member’s Bill which became the Confiscation of Alcohol (Young Persons) Act 1997 (extending to England, Wales and Northern Ireland). That Bill was introduced by the Conservative MP Bob Spink, who later achieved a degree of fame as the UK’s first UKIP Member of Parliament, defecting to that party in 2008 and later sitting as an Independent before losing his seat in 2010. Although a Private Member’s Bill, it had government support and was described in the Lords as “really a Home Office Bill”.
Dr Spink was aware that his Bill gave the police no power of search. But that was deliberate. He explained to Parliament that:
“The fact that the Bill does not give the power of search on the street is a great strength. It is right not to give the police such a power in these circumstances, because it could cause unseemly confrontations if youngsters decided, as they sometimes might, to act up in front of their friends.”
This did not undermine the purpose of his Bill, which was to avoid the police being powerless in the face of underage drinking which took place openly. He said:
“At the moment… the police may see a group of young people tanking up on cans of lager or bottles of whisky, but there is nothing they can do to prevent it. I am sure that the House will agree that that is complete nonsense. The Bill will give the police the power to stop such drinking. They will be able to step in and confiscate the alcohol before it becomes a cause of trouble, both for the public and for the youngsters. It is a common-sense approach.”
The confiscation power, therefore, could serve its purpose without requiring any power of search to be attached to it. This approach seems not to have attracted much debate as the Bill passed through Parliament. One MP, David Hunt, added that “[t]he absence of [search] powers could be controversial, but I believe that the way in which [Dr Spink] explained the matter makes it clear that it is right and appropriate not to have them.”
Times do, of course, change. In 2005, the Serious Organised Crime and Police Act 2005 (Sch 8 Para 8) allowed designated Police Community Support Officers in England and Wales to be given a power to search for alcohol if they reasonably believed that someone under 18 had failed to hand it over when they were required to do so. (This is, it seems, rather more limited than a general police power.)
There may well be a case for a search power to be created in Scotland. But the case has to be made; it is not a simple matter of correcting an anomaly. The 1997 confiscation power represented a particular view on the part of Parliament as to the way in which the state should approach the policing of young people. A change in that approach – even if it has already happened! – is something worthy of proper debate and scrutiny.