Commission speaks to BBC and RT UK about stop and search
The Commission spoke to the BBC's Good Morning Scotland and RT UK on 6 February about non-statutory stop and search.
BBC: Thank you for joining us today. What’s your reaction to Deputy Chief Constable Rose Fitzpatrick’s comments?
Alan Miller: Well, I welcome the comments by the First Minister and by Police Scotland yesterday and this morning. This is something that the Scottish Human Rights Commission has been calling for with Police Scotland and the [Scottish] Government for some months now through Scotland’s National Action Plan for Human Rights. So we welcome that this practice is now going to be coming to an end.
BBC: It sounds as though maybe they’re moving slowly away from it and if we hear from the Fife pilot we’re hearing that people there, parents were saying that they still believe stop and search is still an important tactic?
AM: Well stop and search is an important tactic but only when it’s used within the legal framework and with the powers that the public, through Parliament, has given the Police. The problem with consensual stop and search is that the public, through Parliament, hasn’t given the Police these powers. They have taken it on themselves to decide what circumstances, even without reasonable suspicion they’re going to stop any of us and search us. So, it’s that lack of a legal basis in consensual stop and search that has to be brought to an end; as has been the case in England and Wales. Were a legal challenge to be brought against it, it’s likely to be successful so it’s better to take steps now than await that.
BBC: So you’ll be looking for legislation in Parliament rather than just an agreement?
AM: No, I’d be looking for the practice to stop immediately. There is no legal basis for it as far as the Commission is concerned and I agree with the First Minister and Police Scotland that if there is a gap that needs to be filled in order to protect young people or the communities generally, then that would be a matter for Parliament to decide if that’s the case and if so what would be the appropriate powers to give to the police. But these powers would have to be lawful; they would have to be resting on when the police have reasonable suspicion that someone is at risk or is committing an offence; not just at the discretion of the police outwith a legal framework.
BBC: Indeed, because I suppose you agree with the First Minister that stop and search can be a vital tool in keeping the public safe?
AM: Oh absolutely. The Commission is clear that if the police have reasonable suspicion that someone is carrying a weapon or carrying drugs or has committed an offence then of course the public has given them the powers to act to protect us and that’s as it should be. It’s where we haven’t given them the powers and they act as if they do, that’s the problem. Because we’re all free to go about our business without being interfered with by the police if we’re not doing anything that attracts suspicion.
BBC: I’m interested how this is all played out; the Scottish Police Authority has come in for some criticism recently with the decision about arming routine patrols in the streets and now this as well. Do you think the SPA is in full control of their brief?
AM: Well it’s early days for the accountability framework for Police Scotland and I think that lessons are being learned, I would certainly hope they’re being learned. If you take the armed police issue or the stop and search issue, it really has been yourself - the BBC, the press and media and the Justice Committee and the [Scottish] Human Rights Commission and others who have really brought this to public attention and called for steps to be taken. I think lessons are being learned. It’s early days but the governance framework is very important, it has to be robust and this kind of practice is an early example of the need for an effective governance framework.