It is clear that Scotland has a problem with alcohol and alcohol-related crime.
In the past ten years, half of those accused of murder were under the influence of alcohol and/or drugs, whilst data from the Scottish Prison Survey 2013 suggests that two thirds of young offenders were drunk at the time of their offence. At first glance then, the recent proposal to allow police officers a power to search children for alcohol (subject to public consultation) seems eminently sensible.
The background to the proposal is as follows. Officers in Scotland can currently stop and search children for alcohol on a non-statutory basis, which in practice simply involves asking a young person if they are willing to be searched. However, prompted by concerns raised by the Scottish Human Rights Commission, the UN Human Rights Commission, academics, opposition MSPs, the media and a range of other stakeholders, the Criminal Justice (Scotland) Act will abolish non-statutory stop and search. The upshot is that officers will no longer be able to search children for alcohol on this basis.
Mind the gap
From early 2015 onward, the potential abolition of non-statutory stop and search raised concerns that officers would be left with a ‘gap’ in their powers in relation to alcohol.
The Scotsman reported:
[Deputy Chief Constable Rose Fitzpatrick] said the removal of consensual stop-search would entail a “significant consequence and loss” for the police, leaving a gap which would need to be filled. She said: “If we look at our stop and searches for last year, just over a third were for alcohol and about 40 per cent of those were in relation to alcohol and under-18s. This is a big issue for society, not just the police.
This is controversial territory and unprecedented in the UK. What’s more, there appears to be no hard evidence to support the argument as set out above, principally because, until recently, Police Scotland did not collect the necessary data. To explain, officers have a statutory power of seizure that allows them to confiscate alcohol from children (under section 61 of the Crime and Punishment (Scotland) Act 1997). Also, until mid-2015, officers recorded alcohol confiscations (or seizures), and alcohol stop searches under a single, generic heading: ‘alcohol’.
In practice, this meant it was impossible to work out a) how many of the underage ‘alcohol’ encounters referred to by DCC Fitzpatrick were seizures and how many were stop searches, and b) how many alcohol detections resulted from non-statutory search, and how many resulted from seizure. In other words, it was impossible to work out the size of the ‘gap’.
In June 2015, as recommended by HM Inspectorate of Constabulary in Scotland, Police Scotland introduced an upgraded database that allows officers to record alcohol searches and seizures separately.
The new statistics provide important insights into police practice and show that the overwhelming number of underage alcohol detections result not from stop and search, but from existing statutory powers of seizure. Between June and September, 91% of alcohol detections involving children between June and August 2015 resulted from seizure. Only seven per cent involved a non-statutory stop and search.
Looking at these figures, the ‘gap’ for a search power looks decidedly small, and arguably not deserving a new police power – particularly one that is difficult to pin down in terms of reasonable suspicion and is exclusively aimed at children.
There are other reasons why a search power for alcohol for children might not be a good idea. It’s clear that when used unfairly, stop and search can damage police-community relationships, which in turn affects the ability of officers to do their job. It means that people are less likely to report crimes, or to act as witnesses. Over a decade ago, researchers warned that the use of stop and search in Scotland was adversely affecting relationships between young people and the police, that for some being searched was a regular fact of everyday life, and officers had searched children as young as six. Given the recent scale of recorded stop and search activity in Scotland, there is, I think, a risk that additional search powers may damage police-community relationships further.
Bear in mind also that parliament purposefully intended the absence of a search power for alcohol in the Crime and Punishment (Scotland) Act 1997 in order to minimize tension between young people and the police. Relatedly, findings from the Edinburgh Study of Youth Transitions and Crime shows that adversarial contact with the police risks drawing young people into the criminal justice system – and keeping them there.
Added to this is the complex backdrop of social class and deprivation that underpins patterns of underage drinking. Predictably perhaps, children from the most deprived neighbourhoods are most likely to get into trouble with the police for underage drinking. Yet underage drinking is, more or less, evenly distributed in terms of background deprivation. If anything, survey data from the Scottish Schools Adolescent Lifestyle and Substance Use Survey (SALSUS), as well as research from England and Wales, suggests that children from the affluent suburbs drink more than their less affluent counterparts. However, by dint of the various protective factors that affluence tends to confer, they don’t run into the same difficulties. For instance, SALSUS data suggest children from the most deprived neighbourhoods are more likely to drink outside, access alcohol from strangers and to use off-licences, compared with those from the least deprived neighbourhoods – all factors that increase the probability of police contact.
Whether an additional search power is the best way to address these concerns is, at best, unclear, particularly bearing in mind that underage drinking in not a criminal offence. For instance, it may be that more educational or diversionary strategies are more appropriate. It is also worth bearing in mind that, according to SALSUS data, underage drinking among 13 and 15 year olds in 2013 was at its lowest since recording began in 1990. This doesn’t mean that Scotland does not have a problem with alcohol. The point is to make sure that the policy response is proportionate and constructive.
John Carnochan, the retired director of the Scotland’s Violence Reduction Unit, has described the proposed power as hypocrisy, a measure that will disproportionately affect deprived communities, damage police-community relations and penalize children for the failing of adults. The Scottish Commissioner for Children and Young People has also expressed concerns.
Carnochan argues that a stronger and fairer case can be made for tackling responsible adults and targeting off sales in more deprived areas. It’s clear, for example, that Scotland’s poorest neighbourhoods have the most shops selling alcohol. Research from the Centre for Research on Environment, Society and Health (CRESH) states that the density of off-sales alcohol outlets ranges from 25 per 10,000 people in the least income deprived areas, to 53 per 10,000 in the most income deprived areas. The research sharply concludes that we need greater control over availability and better scrutiny of alcohol licence applications, and asks ‘perhaps it is time to stop placing economics before equality and public health?’ Around 440 applications for premise licences were made last year, and only three per cent were refused.
Recorded offences involving selling to, or buying alcohol for under 18s also suggest that this type of police-work may not be a high priority. To be clear, these trends are also likely to tap into falling patterns in underage drinking. Nonetheless, it is striking that just under a decade ago, officers recorded over 1,300 offences in relation to selling to, or purchasing alcohol for, under 18s and that by 2014/15 this had fallen to 95 offences.
Number of recorded offences for selling to, and buying alcohol for under 18s, 2003/4-2014/15
Source: Scottish Government
One step forward, two steps back
A final point. Police Scotland has made good progress on stop and search. Recorded search numbers, as well as the proportion of non-statutory searches, have fallen and young people are less likely to be targeted. Still, a more constructive approach will need time to bed down properly. An additional power of search seems unlikely to facilitate this direction. Nor, looking at the available evidence, does it appear to be justified.
Police photo: The Courier (DC Thomson)