The Scottish Police Federation (SPF), which represents the rank and file, said the new rules would effectively stop its members from operating on a “hunch”, which it described as “one of the most invaluable skills a police officer has at their disposal”.
It cited the example of what it called a “recent spate of ‘stranger rapes’” in Glasgow city centre, saying that officers would not be able to search those acting suspiciously in the area.
The new code, which is due to come into force in May, will end the practice of so-called “consensual search”, which allows police officers to stop members of the public and carry out a search by asking their permission.
Police officers will now only be able to stop and search people when they have “reasonable grounds for suspicion” based on information or intelligence received.
Figures from Police Scotland show consensual searching has reduced from 70 per cent of all searches in 2013-14 to 3.5 per cent at December 2016.
In the first nine months of 2016-17, 2,310 children under the age of 16 were searched – including nine under the age of 12 – but more than 90 per cent of these were done under statutory legislation.
In a written submission to Holyrood’s justice sub-committee on policing, Calum Steele, general secretary of the SPF, said: “It is incredible that there is no concession for the reality that suspicious behaviour is often a product of a guilty mind that may not be allied to the carrying of a prohibited item.
“If we look, for example, at the recent spate of ‘stranger rapes’ in Glasgow city centre, it would not be unreasonable to expect police officers to provide additional patrols to the risky areas.
“It is not difficult to imagine a situation where a police officer encounters a male who may be acting suspiciously (albeit who has committed no crime at the time) and as a consequence of the provisions of this code, are effectively neutered from dealing effectively with them.”
He added: “In effect the code is implying that either the police concoct a reason to search the individual or allow a potential suspect to leave without having established either their identity or whether they might have been in possession of something that could prove to be of evidential value.”
But John Scott QC, who led an advisory group of experts on stop and search, said valuable intelligence was more likely to come from good community relations than officers acting on a “hunch or a whim”.
He said: “None of this is about stopping the police engaging with people, going up and speaking to members of the public. If they’ve got a hunch, as long as they don’t use that as the basis of exercising any statutory powers, there’s not a problem.
“I don’t accept as a principle that we should allow the police to do whatever they want on the basis of a hunch or a whim. While some officers may have got lucky with that approach in the past, probably on a lot of those occasions they would have had reasonable grounds to suspect the person.”
He added: “Stop and search is just part of policing and engagement more generally is important. Community confidence is crucial and far more will come from information provided by the public than ever comes from a policeman’s hunch.”
In its submission to the committee, Police Scotland said it welcomed the new code of practice.
A Scottish Government spokesman said: “Stop and search can be a valuable tool for combating crime, but the right balance must be reached between protecting the public and rights of individuals.”