Chapter 2: Search of children under 12
Pre-existing law
109.There are a large number of powers in statute under which the police can search a person on the basis that the constable reasonably suspects that the person has committed an offence, is committing an offence or may be about to commit an offence.(51) Such search powers may also allow a person to be searched where there is a reasonable belief that offences are taking or may take place in a particular area but where it is not known who has committed or might be about to commit the offence.(52)
110.Many of these search powers allow persons and vehicles or vessels to be stopped as well as searched.(53) Some allow the constable to arrest, without warrant, a person so that the person can be searched.(54) Some also give the constable power to require persons to produce documents to the constable and may also allow the constable to seize documents and other evidence found during a search.(55)
111.Where a child is over the age of criminal responsibility, these powers will also be available in relation to the child and the child can be searched.
112.There are also statutory provisions regulating when the police can search persons, including children, on a consensual basis. Section 65 of the 2016 Act prohibits search of persons who are not in police custody(56) unless expressly authorised by statute or by a court order. So the police cannot search a person even if the person consents. Section 66 allows the police to search a person who is not in custody but is being taken to a place under the authority of a statutory power or a court order.(57) Section 67 permits the search of persons at certain sporting and entertainment events for the purposes of ensuring the health, safety or security of people on the premises or at the event.
113.Section 68 applies specifically to children under 18. It requires a constable, who is considering whether to search a child who is not in police custody, to treat the need to safeguard and promote the wellbeing of the child as a primary consideration in making that decision.
114.These provisions, and any other statutory powers allowing the search of persons not in police custody, also apply to children, and may apply to children under the age of criminal responsibility.
For example, section 21 of the Criminal Law (Consolidation) (Scotland) Act 1995 gives a constable power, without warrant, to enter sports grounds, arrest and search persons suspected of committing an offence under Part 2 of that Act, such as possessing alcohol in the sports ground (an offence under section 20(2)), and stop and search vehicles.
See, for example, section 60 of the Criminal Justice and Public Order Act 1994.
For example, section 60 of the Civic Government (Scotland) Act 1982.
See, for an example, section 11(1)(c) of the Protection of Badgers Act 1992.
For example, section 23 of the Misuse of Drugs Act 1971.
“Police custody” is defined in section 64 of the 2016 Act and essentially begins when a person has been arrested (and ends on the occurrence on a number of events).
This section will apply to the power in section 28 of the Act to take a child under 12 to a place of safety.
