Police powers to stop and search, enter private property and seize goods
When the police can stop and search you
From 11 May 2017, there is a Code of Practice that all police in Scotland should follow for stopping and searching members of the public. The full code and an easy to read version are available on the Police Scotland website at www.scotland.police.uk. The main parts of the code are summarised below.
The code doesn’t apply to people who have already been arrested or people in custody. Being searched does not mean you have been arrested or will have a criminal record.
The police can normally only stop and search you if they have a search warrant or they do not have a search warrant but they have reasonable grounds to suspect that you have committed a crime, are about to commit a crime, or are in possession of one of more of the following:
- illegal drugs
- an offensive weapon like a knife or gun
- stolen property
- alcohol if you are at certain major football or rugby matches or on public transport travelling to such an event when alcohol is not allowed
- evidence in relation to an offence under the Protection of Wild Mammals (Scotland) Act 2002
- cash or the cash equivalent of £1,000 or more and that this is the result of criminal activity
- fireworks that you intend to use anti-socially
The police can’t rely on a hunch or instinct to search you, even if you volunteer or give your consent to be searched (s65, Criminal Justice (Scotland) Act 2016). They must normally suspect that you have one or more of the items above based on reliable information, facts or seeing you acting suspiciously.
For example, the police have been told that a person in the area they are patrolling is carrying a knife and is dressed in a blue coat. If an officer sees a person in a blue coat and they suspect that person may be carrying a knife, they may search them.
There are exceptions to the need for reasonable grounds for suspicion:
- police officers have a duty to protect life, so in some cases they may search you if they suspect that you are a danger to yourself or others
- the police can search anyone on school grounds if they have reasonable grounds to suspect there are knives or other offensive weapons
- if the police have a warrant to search a property for drugs, and the warrant covers people found in the property, they can search those people under the warrant
- you are in an area where a senior police officer has authorised for people to be searched over a limited time period because there is a belief that serious violence might take place or people are carrying weapons. For example, a protest.
- if you are about to enter an event such as a football match and you agreed to be searched when you bought the ticket (this might be in the terms and conditions or 'small print') (s67 Criminal Justice (Scotland) Act 2016)
In all situations, you can’t be searched just because of how you look or who you are, as this is discrimination.
You can be searched even if you are in possession of one of the items above innocently.
On and after 11 May 2017, a police officer cannot search you without a warrant or a legal ground for the search, even if you agree or volunteer to be searched. An exception to this is where you have agreed to a search when entering or attending a venue or event, such as a music festival, because the event organiser has made it a condition of entry (it may be in the 'small print' or terms and conditions of your ticket).
If you have been asked to consent to a search, you can refuse to allow the search to take place and make a complaint about the police officer(s) involved. See Complaints against the police.
You cannot take a police officer or Police Scotland to court if you have undergone a consensual search, unless you feel the search breached your rights in some other way. For example, you feel you were discriminated against. See more about discrimination and taking legal action against the police.
The police cannot stop and search you simply because of:
- who you are or what you look like, for example, your race or religion, sexual orientation, gender or age. These are known as protected characteristics. See more about discrimination and what to do about it
- your clothing or general appearance (although there is an exception for gangs)
- the fact that you have previous convictions
But how you look or who you are may be part of the information that supports reasonable grounds for searching you. For example an officer has been told that a woman in her early twenties, in a blue coat, has been seen carrying a knife.
The police may have reliable knowledge that members of a group or a gang who dress or look similar to one another often carry knives, drugs or other weapons. In this case clothing or appearance could provide reasonable grounds to search a member of the group.
You can be searched without a warrant if a police officer suspects that you are carrying a dangerous weapon like a knife. This does not apply if you have a folding pocket knife with a cutting edge of 7.60cm or less.
You may have a legal defence if you are charged with carrying an offensive weapon but you required it for work, you are wearing it for religious reasons or it is part of a national costume (such as a sgian-dubh worn with a kilt).
The police can also stop and search you or your vehicle if they reasonably suspect you of terrorist activity. They can't stop and search you just for being in a particular area, unless they reasonably suspect you of terrorist activity.
In some circumstances a police officer of the rank of inspector or above can give the police permission to make stops and searches in an area for a certain amount of time - as long as this is for no more than 24 hours. When this permission is in force the police can search for offensive weapons or dangerous instruments whether or not they have grounds for suspecting that people are carrying these items. An officer with the rank of assistant chief constable or above can give permission for searches of people or vehicles to take place in order to prevent acts of terrorism.
How the search should be conducted
You should be treated with fairness, dignity and respect. The officer should try to talk to you before carrying out the search. You may be asked to explain your behaviour or why you are in that place. You don’t have to say anything or provide any information about yourself such as your name or address, and the officer must tell you this.
You may wish to speak to the officer to provide an honest explanation for your behaviour, however, to avoid the search. If the officer accepts your explanation they should not carry out the search.
If the officer is in plain clothes, they must identify themselves and provide evidence of their identity if you ask them to. You should ask to see their warrant card.
If the officer plans to search you they must take the following steps:
- tell you that you are being detained for the purpose of a search
- give you their name and constable’s number (or show their warrant card)
- tell you that you do not have to provide any information about yourself or to say anything at all
- explain what illegal item(s) they are searching for and under what law it is illegal
- explain the reasonable grounds of suspicion they have for the search, such as any information they have been given. For example, if you match the description of someone seen carrying a knife. Or explain why searches have been authorised in that place during that period of time
- try to get your cooperation with the search, or use reasonable force if necessary
- carry out the search in as private a place as possible, near to where you were detained. This could be a nearby police station
- the search should be carried out by an officer of the same sex and away from the view of members of the opposite sex
- record the search in writing. You should not be asked for your name, address or date of birth to complete the record if you decided not to provide it previously, but if you don't you will not be able to obtain a copy the search record
- give you a receipt of the search, unless this isn’t possible because the officer has to attend an urgent incident
The officer should try to ensure that you understand the information you have been given. If you find it difficult to communicate in English, the police may find an interpreter for you. If you are deaf, the police may ask someone accompanying you to translate in BSL, or find an interpreter.
You are entitled to get a copy of the record of the search from the police within 6 months of the search, unless you have chosen not to provide any personal information.
If nothing illegal has been found in the search, and there is no other reason for the police to detain you, you are free to go.
The police do not normally have the power to require you to take off any clothing in public other than an outer coat, jacket, gloves, headgear or footwear. You may be asked to remove more clothing, but you can refuse. Removing more clothing would constitute a strip search, for which there are particular guidelines the police must follow.
The searching officer can place their hands inside your pockets, and feel around the inside of collars, socks and shoes. Your hair can also be searched although the officer should take account of any issues around gender, religion or cultural differences and do this away from the public if needed.
In some circumstances officers may have been granted the power (known as an s60 authorisation) to order you to remove a head or face covering that you are using wholly or mainly to conceal your identity, such as a balaclava or bandana. You cannot be ordered to remove a head or face covering, such as a hijab, except where the police officer has a reason to believe that it is being worn only to conceal identity, not simply because it happens to disguise identity.
Refusing to remove the face covering where an officer has ordered you to is an offence for which you can be arrested. A police officer granted these powers can remove or seize the face covering if they think it is being worn only to conceal your identity. Where possible this should be done in private and in the presence of an officer of the same sex.
If you are asked to remove a head or face covering that you were not wearing mainly to conceal your identity, you could make a complaint. For example, if you were wearing a hijab for religious reasons.
The police do not have the power to take fingerprints, palm prints or body samples, such as a blood sample, unless you have been arrested and detained. See If you are detained or arrested by the police.
If you resist being searched in any of the circumstances described above, the police officer can arrest you. You can then be searched (using force if necessary). However, a search of a more intimate nature, for example, an internal search, requires a warrant. See Intimate searches.
A strip search is a search where more than an outer coat, jacket, gloves, headgear or footwear is removed. You cannot be ordered to remove more clothing unless a strip search has been authorised by a more senior officer.
A strip search can only happen if the police think it is necessary to confiscate an illegal item that you are hiding under your clothes or on your body, such as a weapon.
A strip search can involve the exposure of intimate body parts. Your privacy and dignity should be respected. The following steps should be taken:
- the reason for the search should be fully explained to you
- there should always be at least two other people present
- the strip search should be carried out by a person of the same sex (transgender people may request the sex of the person)
- the search should take place in private, away from the view of members of the opposite sex (except a responsible adult that a child or vulnerable adult has asked to be present)
- if intimate body parts such as breasts or genitals will be exposed, there should be the minimum number of people present and no members of the opposite sex unless they are medical staff
- searches of people under 18 should take place with a responsible adult present, unless the child does not want them to be present
- you shouldn’t be required to remove all your clothing at the same time
- you may be asked to hold your arms up in the air, stand with your legs apart, open your mouth or bend forward, but you shouldn’t be touched
- you should be allowed to redress as quickly as possible
If you have been detained for a strip search you can request that you be searched in a nearby police station in private, or inside a police vehicle.
If something is found in your mouth, this can be removed. If something is found in another orifice, this cannot be removed unless the police have a warrant for an intimate search. You can remove this voluntarily, however.
You should be treated with dignity and respect. The search will be carried out by a health care professional such as a doctor or nurse. A police officer of the same sex will also be present in the room.
Intimate searches of people under 18 and vulnerable adults should only happen with a responsible adult of the same sex present, unless the child or vulnerable adult says that they don’t want that person to be present, or requests an adult of the opposite sex. A responsible adult may be a parent, a guardian, an older sibling or another person with responsibility for the child or vulnerable adult.
Intimate searches should only take place in a private place away from the public.
Searches of children or young people
Children can be held criminally responsible from the age of 8. Officers can search children and young people under 18 without parental consent. The Scottish Government have produced a guide to stop and search for young people, available at www.gov.scot .
Searches of children and young people must be based on reasonable grounds for suspicion and be conducted in the same way as searches of adults, however particular care must be taken to ensure the child’s well-being. Searches should be done in a way that minimises distress to the child, particularly if children have been looked after children, have experienced abuse in the past or are particularly young.
In some cases children are used as couriers for drugs or weapons. Officers can search a child or a child’s pram if they have reasonable grounds to suspect that they are in possession of drugs, offensive weapons or other items, even if those items are being carried without the child’s knowledge. Where illegal items are found, the police may refer the child to the local authority or the Procurator Fiscal.
There are some safeguards in the code of practice to protect children:
- if an officer believes that it will be more harmful to a child to carry out a search than not, the search should not go ahead
- if the child lacks the capacity to understand why they are being searched or what will happen, the search should not go ahead
- all searches should be carried out by an officer of the same sex
- a child can ask for a 'responsible adult' to be present during the search, such as a parent, guardian or older sibling, for support
Officers do not have to inform parents that the child has been searched, but may decide to do so even if this is against the wishes of the child. They should explain to the child why this decision has been made.
Children should receive a receipt of the search and can make complaints about the police on their own.
Searches of vulnerable adults
Some people who have mental illness, personality disorders, autism or learning disabilities may find it difficult to communicate or understand a search and may be considered vulnerable adults.
Part 8 of the stop and search code of practice has some guidelines for the police about how to communicate with vulnerable adults, available on the Scottish Government website at beta.gov.scot. Particular care must be taken to ensure the vulnerable adult understands what is happening and is not distressed, taking into account their individual needs.
If the vulnerable adult lacks the capacity to understand why a search is taking place and what will happen, there is a presumption that the search should not go ahead.
If you are with a vulnerable adult who is being searched you can ask for the officer to take particular steps to protect that person. For example, you could ask to be present while the search is taking place to keep them calm. You may also make the officer aware of any particular difficulties they have, for example if they have autism and do not like to be touched.
Searches of transgender people
If you have been detained for a search you can ask to be searched by a constable of the gender you identify with, and this request should be met. You can also ask to be addressed by the pronouns (she/her/he/him/they/them) you feel comfortable with.
You should be treated with dignity and respect by the officers involved in the search. If you are made to feel uncomfortable during a search, for example because your physical appearance is commented upon, or your requests are not met, you can make a complaint. This may also be a breach of your human rights for which you may want to take action. If you or a family member has been searched in a way that is a breach of human rights, you may want to challenge the treatment by the police. See the Human Rights Act 1998 and Taking legal action about human rights.
Searches of disabled people
Anyone who is searched should be treated with dignity and respect for their individual needs. This means that the police should try to understand your disability and take it into account when searching you. You should make the police aware if there is anything that you would be uncomfortable with or unable to do during a search. For example, if you would be in pain raising your arms above your head during a strip search.
If you are deaf, the police should make sure you understand the information they have given you about the search. This may mean they get a BSL interpreter or someone you know to help.
If you don't feel that your individual needs were taken into account during a search, you can make a complaint. Disability is also a protected characteristic under discrimination law, so you may be able to take legal action in some circumstances. See Complaints and legal action against the police.
Stopping and searching vehicles
Police officers in uniform have the power to stop a motor vehicle on a road and ask the driver to produce:
- a driving licence
- an insurance certificate
- a test certificate
A police officer can stop and search a vehicle, for example if s/he suspects that it contains stolen property or drugs. Police officers have the power to set up a road check and stop all vehicles or selected vehicles on any road.
Tests for alcohol or drugs in Scotland
A police officer can require you to take a breath test or undergo other tests if you have been driving, attempting to drive or have been in charge of a motor vehicle and they suspect you:
- of having alcohol in your body, or
- of having used drugs, or
- have committed a moving traffic offence, or
- were the driver at the time of a road traffic accident
A test for alcohol will normally be a breath test, also known as a breathaliser. A test for drugs would usually be a preliminary test of any impairment in your physical or cognitive ability. You could also be asked to give a sweat or saliva swab. It is an offence to refuse to provide a specimen of breath, sweat or saliva or take a test in these circumstances without a reasonable excuse.
The current limit in Scotland in relation to alcohol in the breath is 22 microgrammes of alcohol in 100ml of breath. The limit in relation to alcohol in the blood is 50 microgrammes per 100ml of blood.
Police powers to seize alcohol, cash and other items
Once they have carried out a search of a person or a vehicle, the police have the power to seize and retain anything that they consider to be relevant to an offence. The police can seize cash of £1,000 or more if they suspect that it could be the result of the proceeds of crime.
Confiscating alcohol and fireworks
The police have the power to confiscate alcohol from people under 18 who are drinking it in a public place. They can also confiscate alcohol from people aged 18 or over if it is suspected that the alcohol has been consumed or is intended for consumption by people under 18.
The police can also confiscate fireworks that they think are going to be used for anti-social purposes.
When the police can stop and question you
A police officer may stop and question you in the street or any public place. You don't have to provide any personal details about yourself unless you are suspected of either committing an offence or the officer believes that you have witnessed a possible offence. The police officer will tell you whether you are a suspect or a witness.
If the police suspect you of committing an offence they must inform you of the general nature of the offence believed to have been committed. If asked to do so, you must give your name, address, date and place of birth and nationality to the officer. You may also be asked for a explanation of your behaviour. If you give false information or refuse to answer, you are committing an offence for which you could be arrested and charged.
If you have been asked to stay with the police while they check the information you have provided you must do so. If you don't, this is an offence for which you could be charged. The police can use reasonable force to keep you there for questioning. If you feel that unreasonable or excessive force was used, you can make a complaint.
If the police think you are a witness to a crime, they should tell you this. If asked to do so, you must give your name, address, date and place of birth and nationality to the officer. You don't have to provide an explanation of your behaviour or a statement, however.
If you refuse to provide your name, address, date and place of birth and nationality after you have been told by the police why they have stopped to question you this refusal is an offence you could be arrested and charged for.
Unlike a suspect, the police can't require a witness to stay for questioning once they have provided their details. You are free to leave if you wish.
If the police want to question you further
Once you have given the police your name, address, date and place of birth and nationality, it is up to them to decide whether they want to ask more questions. If they don’t then you should be allowed to go.
If they do want to ask you more questions and they suspect you of having committed a crime they can:
- ask you to attend voluntarily at the police station to help with enquiries, or
- detain you for questioning for up to 24 hours, or
- arrest you for allegedly committing an offence
If the police think you are a witness to a crime they can invite you to attend the police station to help with enquiries but you can refuse to do so and cannot be detained at the police station.
If you have been questioned by the police, either as a suspect or a witness, the police should make clear before you are released or leave the police station what further action, if any, will be taken, for example, whether you have been charged and will be reported to the Procurator Fiscal or whether you have been eliminated from the enquiry.
When can the police move you on
The police have the power to move you on if they believe that you are obstructing the lawful passage of any other person in any public places or if you (either individually or as part of a group) are conducting yourself in a riotous or disorderly manner, anywhere, to the alarm, annoyance or disturbance of the public.
If you have been asked to move on, you are entitled to ask for a reason and you should expect to receive one. If you refuse to move you are likely to be charged with an offence.
Groups of people can be ordered to leave certain areas known as dispersal areas, such as local parks, to prevent anti-social behaviour. It’s an offence for you to fail to leave the area. See Antisocial behaviour.
When the police can issue you with a fine
A police officer can give you an 'on the spot' fine (fixed penalty notice) for some types of antisocial behaviour or parking violations.
Police powers to enter your home or other private property
In general the police do not have the right to enter a person’s house or other private premises without their permission. However, they can enter without a warrant:
- when in close pursuit of someone the police believe has committed, or attempted to commit, a serious crime, or
- to sort out a disturbance, or
- if they hear cries for help or of distress, or
- to enforce an arrest warrant, or
- if invited in freely by the occupant, or
- under various statutes which give the police powers of entry (not necessarily by force) into a number of different kinds of premises
When can the police enter and search premises
In general, the police don’t have the power to search premises without a warrant unless they have obtained the permission of the person concerned, or a delay in obtaining a warrant would be likely to defeat the ends of justice, for example, that evidence will be destroyed or removed.
There are also certain statutes which provide for the search of premises, cars or vessels without a warrant. Evidence obtained legally by these means would be as admissible as evidence in a court. Admissibility of evidence obtained during a search is always subject to examination by the courts and depends on the circumstances of particular cases.
A search warrant authorises the police to enter premises on one occasion only. If the police have a search warrant they can, if necessary, use reasonable force to enter and search the premises. The householder or occupier of the premises is responsible for any repairs that are needed as a result of the police forcing entry. However, if the police search an address in error, the police should be asked to repair any damage they cause.
As well as getting a warrant to enter and search because of suspected crime, a warrant can be issued to enter premises to check if the occupant is at risk because of mental illness. For example if a local authority has been unable to get access to premises where it believes that there is an adult at risk of harm it can seek a warrant of entry. The warrant allows a police office to open a locked door by force if necessary.
A warrant can also be issued to enter the home of a registered sex offender to ensure a risk assessment of the likelihood of her/him committing another offence is completed. The warrant lasts for one month and does not automatically give the police permission to seize and keep anything they find.
When can the police seize property covered in the warrant and other goods
If the police have used a search warrant to search premises or a vehicle and they have found articles covered by the warrant, they have the power to seize them and take them into safe custody, for example, to a police station. The articles are held there as possible evidence in any criminal proceedings which the Procurator Fiscal may decide to start.
Where a warrant is granted to search for specific items of stolen property, the police have the power to seize other items not referred to in the warrant if they show the suspect may have been involved in another crime.
If the police have seized certain articles after a search, you have no right to make the police return the articles and there is no time limit on how long the police can hold them. If you want to enquire about retrieving articles from the police you should write to the Chief Constable to establish if the property is to be used in evidence. If the property is to be used as evidence, the Procurator Fiscal is responsible for its disposal and the Fiscal will deal with enquiries concerning the property.
You may be able to take legal action to get a court order for the article(s) to be returned but this would be a complex process, for which legal advice would be needed.
If you want to complain about how you were searched
If you aren't happy with any aspect of police conduct, for example you don't think the police followed the code of practice when they searched you, you can make a complaint. In some circumstances you may also be able to take legal action, for example if you feel you were discriminated against. See Making a complaint or taking legal action against the police.