Consultation on regulations to modify Part 1 of the Criminal Justice (Scotland) Act 2016 to deal with arrests which do not relate to criminal offences and arrests under warrant

4. Arrests under a Warrant and other statutory arrest powers: Where a person can be taken upon arrest

Requirement to take arrested person to a police station

4.1. It is also proposed that Part 1 should be modified so as to provide flexibility regarding where a person arrested on a warrant should be taken upon arrest. Section 4 of the CJ(S)A requires that all arrested persons should be taken to a police station as soon as reasonably practicable. This is not always appropriate or necessary with some arrests on warrant.

Warrants for arrest of witnesses

4.2 Warrants can be issued for the arrest of witnesses who fail to appear at court. The main reason for issuing the warrant is to secure the witness's attendance at court in a timely fashion. A requirement to take them to a police station, process them and then take them to court may not be helpful in this situation. It may however be necessary to take the person to a police station if they are arrested after the court closes and they require to be held in police custody until the court re-opens. In some cases the witness may later be dealt with for contempt of court but this will only happen after the witness attends court and if the Sheriff or Judge decides on this course of action.

4.3 Under the current arrangements within the CJ(S)A witnesses arrested for failing to appear at court would have to go through the custody process at the police station prior to being taken to court. It would be useful to create flexibility within section 4 to allow witnesses to be taken directly to court in circumstances where the Sheriff or Judge directs this to happen.

Other arrests

4.4 There are other arrest warrants and statutory powers of arrest that require persons to be taken elsewhere other than a police station or indeed a court. These include:

• Criminal Law Act 1977 - Extract Conviction warrant for imprisonment in default of payment of fine ^[9] (Section 38A)
• Prisoners and Criminal Proceedings (Scotland) Act 1993 – Revocation of licence ^[10] (Section 17)
• Prisons (Scotland) Act 1989 – unlawfully at large ^[11] (Section 40)

4.5 None of these provisions specifically require a person to be taken to a police station before being taken to the place indicated on the warrant or in legislation. In the majority of cases they should be taken directly to the place indicated in the warrant or legislation, such as a prison. In particular section 40(1) of the Prisons (Scotland) Act 1989 specifically states that the person arrested should be taken to the place in which he is required in accordance with law to be detained. There may however be circumstances for example where these other establishments are not able to receive the arrested person. This would require the police to take a person to a police station until that establishment opens again.

4.6 For these types of arrests under warrant or particular legislation there are no court proceedings resulting from the arrest and the only purpose of the arrest is to take the arrested person to a place directed on the warrant or under the legislation. In these circumstances it could be considered to be an unnecessary and bureaucratic process to take them to a police station. The exception would be if the other place directed on the warrant or in the legislation was not open to receive the arrested person, in which case it would be appropriate for the person to taken into police custody system until they could be transferred to the other place. In these situations there is no requirement for them to be in police custody any longer than is absolutely necessary, but they should be given the same rights and entitlements as any other person in police custody.

Proposed modification

4.7 The summary below sets out how the proposed regulations will amend part 1 of the CJ(S)A for arrest under warrant / enactment specifying the place to which the person should be taken with further explanation following.

4.8 A modification is proposed to disapply the requirement to take all arrested individuals to a police station after arrest if the warrant or enactment the person was arrested under requires them to be taken to a particular place other than a police station and if taking the person to that place would be unnecessarily delayed by taking them to a police station first. This would provide flexibility to take a person to the place where they are meant to be, but would still allow a person to be taken to a police station when that other place is not available.

4.9 This requires a related amendment to the meaning of police custody in section 64 of the 2016 Act. This would clarify that the person would cease to be in police custody when the police hand them over to a court, hospital or prison in the situations described above.

Question 4 Do you agree that section 4 of the Criminal Justice (Scotland) Act 2016 should be modified to allow a person to be taken directly to a place other than a police station if a warrant or other enactment provides for this to happen?

Question 5 Are any other modifications required?