Modernising powers of arrest

Measures to modernise the law around arrest and questioning of suspects have come into force in Scotland.

The changes under the Criminal Justice Act create new investigative tools for the police with additional scope for post-charge questioning, as well as protecting key rights for suspects, including access to legal advice.

Part 1 of the Act will:

• Abolish the separate concepts of arrest and detention, and replace them with a single statutory power of arrest without warrant where there is reasonable grounds for suspecting a person has committed an offence

• Enable police to release a suspect for further investigation with conditions (for up to 28 days) with the power to re-arrest

• Place a duty on police to take every precaution to ensure a person is not unnecessarily held in police custody and explicitly protects a person’s right to remain silent

• Extend the rights of those held, giving them the right to speak to a solicitor, regardless of whether or not they are going to be interviewed

• Enhance protections for under 18s and includes protections for 16 and 17 year olds which balance the right to self-determination

• Include a duty to safeguard and promote the wellbeing of a child as a primary consideration when deciding whether to arrest the child

Cabinet Secretary for Justice Michael Matheson said:

“We are committed to modernising the justice system to meet the needs of people in the 21st century and these are some of the most significant changes to police procedures in Scotland for at least a generation.

“The new framework strikes a balance between strengthening the powers available to police, while protecting the rights of the accused.

“The Scottish Government has worked closely with criminal justice partners in the lead up to implementation to ensure a smooth transition to new arrest and custody procedures as they come into force across Scotland today.”

Assistant Chief Constable Wayne Mawson, Police Scotland said:

"We welcome the new Act and the opportunities it presents to offer a better balance within our criminal justice system to deliver positive outcomes for victims, keeping people safe, while protecting the rights of those suspected or accused of crime. Our officers and staff have taken part in specific training and are fully prepared for the new legislation."

Background

The changes under Part I of the Criminal Justice (Scotland) Act 2016 have been developed from recommendations in the Carloway Review of Scottish Criminal Law and Practice and provide a clear balance between proper investigation of offences and the protection of suspects’ rights whilst in police custody.

All persons in custody have the right to a private consultation with a Solicitor at any time. Police station advice is delivered by a combination of employed and those private solicitors who participate in the police station duty scheme.