Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Criminal Justice (Scotland) Act 2016

Type Act of the Scottish Parliament

Publication 2016-01-13

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — ARREST AND CUSTODY

CHAPTER 1 — ARREST BY POLICE

Arrest without warrant

Power of a constable

1

(1) A constable may arrest a person without a warrant if the constable has reasonable grounds for suspecting that the person has committed or is committing an offence.

(2) In relation to an offence not punishable by imprisonment, a constable may arrest a person under subsection (1) only if the constable is satisfied that it would not be in the interests of justice to delay the arrest in order to seek a warrant for the person's arrest.

(3) Without prejudice to the generality of subsection (2), it would not be in the interests of justice to delay an arrest in order to seek a warrant if the constable reasonably believes that unless the person is arrested without delay the person will—

(a) continue committing the offence, or

(b) obstruct the course of justice in any way, including by—

(i) seeking to avoid arrest, or

(ii) interfering with witnesses or evidence.

(4) For the avoidance of doubt, an offence is to be regarded as not punishable by imprisonment for the purpose of subsection (2) only if no person convicted of the offence can be sentenced to imprisonment in respect of it.

Exercise of the power

2

(1) A person may be arrested under section 1 more than once in respect of the same offence.

(2) A person may not be arrested under section 1 in respect of an offence if the person has been officially accused of committing the offence or an offence arising from the same circumstances as the offence.

(3) Where—

(a) a constable who is not in uniform arrests a person under section 1, and

(b) the person asks to see the constable's identification,

the constable must show identification to the person as soon as reasonably practicable.

Procedure following arrest

Information to be given on arrest

3

When a constable arrests a person (or as soon afterwards as is reasonably practicable), a constable must inform the person—

(a) that the person is under arrest,

(b) of the general nature of the offence in respect of which the person is arrested (if any),

(d) that the person is under no obligation to say anything, other than to give the information specified in section 34(4), and

(e) of the person's right to have—

(i) intimation sent to a solicitor under section 43, and

(ii) access to a solicitor under section 44.

Arrested person to be taken to police station

4

(1) Where a person is arrested by a constable outwith a police station, a constable must take the person as quickly as is reasonably practicable to a police station.

(1A) But subsection (1) need not be complied with if—

(a) either the warrant under which the person was arrested or an enactment requires that following the arrest the person be taken to a particular place (other than a police station), and

(b) the taking of the person to that place would be unnecessarily delayed by taking the person to a police station first.

(2) Subsection (1) ceases to apply, and the person must be released from police custody immediately, if—

(a) the person has been arrested in respect of an offence without a warrant,

(b) the person has not yet arrived at a police station in accordance with this section, and

(i) the offence in respect of which the person was arrested, or

(ii) an offence arising from the same circumstances as that offence.

(3) For the avoidance of doubt, subsection (1) ceases to apply if, before arriving at a police station in accordance with this section, the person is released from custody under—

(a) section 25(2), or

(b) section 28(3A) of the 1995 Act.

Information to be given at police station

5

(1) Subsections (2) and (3) apply when—

(a) a person is in police custody having been arrested at a police station, or

(b) a person is in police custody and has been taken to a police station in accordance with section 4.

(2) The person must be informed as soon as reasonably practicable—

(a) that the person is under no obligation to say anything, other than to give the information specified in section 34(4),

(b) of any right the person has to have intimation sent and to have access to certain persons under—

(i) section 38,

(ii) section 40,

(iii) section 43,

(iv) section 44.

(3) The person must be provided as soon as reasonably practicable with such information (verbally or in writing) as is necessary to satisfy the requirements placed on member States by Articles 3 and 4 of Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings.

Information to be recorded by police

6

(1) There must be recorded in relation to any arrest by a constable—

(a) the time and place of arrest,

(b) either—

(i) the general nature of the offence in respect of which the person is arrested, or

(ii) if the person is arrested otherwise than in respect of an offence, the reason for the arrest,

(c) if the person is taken from one place to another while in police custody (including to a police station in accordance with section 4)—

(i) the place from which, and time at which, the person is taken, and

(ii) the place to which the person is taken and the time at which the person arrives there,

(d) the time at which, and the identity of the constable by whom, the person is informed of the matters mentioned in section 3,

(e) the time at which the person ceases to be in police custody.

(2) Where relevant, there must be recorded in relation to an arrest by a constable—

(a) the reason that the constable who released the person from custody under subsection (2) of section 4 formed the opinion mentioned in paragraph (c) of that subsection,

(b) the time at which, and the identity of the person by whom, the person is—

(i) informed of the matters mentioned in subsection (2) of section 5, and

(ii) provided with information in accordance with subsection (3) of that section,

(c) the time at which, and the identity of the person by whom, the person is informed of the matters mentioned in section 20,

(d) the time at which the person requests that intimation be sent under—

(i) section 38,

(ii) section 43,

(e) the time at which intimation is sent under—

(i) section 38,

(ii) section 41,

(iii) section 42,

(iv) section 43.

(3) Where a person is in police custody and not officially accused of committing an offence, there must be recorded the time, place and outcome of any decision under section 7.

(4) Where a person is held in police custody by virtue of authorisation given under section 7 there must be recorded—

(a) the time at which the person is informed of the matters mentioned in section 8,

(b) the time, place and outcome of any custody review under section 13,

(c) the time at which any interview in the circumstances described in section 15(6) begins and the time at which it ends.

(5) If a constable considers whether to give authorisation under section 11 there must be recorded—

(a) whether a reasonable opportunity to make representations has been afforded in accordance with subsection (4)(a) of that section,

(b) if the opportunity referred to in paragraph (a) has not been afforded, the reason for that,

(d) if the constable's decision is to give the authorisation—

(i) the grounds on which it is given,

(ii) the time at which, and the identity of the person by whom, the person is informed and reminded of things in accordance with section 12, and

(iii) the time at which the person requests that intimation be sent under section 12(3)(a) and the time at which it is sent.

(6) Where a person is held in police custody by virtue of authorisation given under section 11 there must be recorded—

(a) the time, place and outcome of any custody review under section 13,

(b) the time at which any interview in the circumstances described in section 15(6) begins and the time at which it ends.

(7) If a person is released from police custody on conditions under section 16, there must be recorded—

(a) details of the conditions imposed, and

(b) the identity of the constable who imposed them.

(8) If a person is charged with an offence by a constable while in police custody, there must be recorded the time at which the person is charged.

CHAPTER 2 — CUSTODY: PERSON NOT OFFICIALLY ACCUSED

Keeping person in custody

Authorisation for keeping in custody

7

(1) Subsection (2) applies where—

(a) a person is in police custody having been arrested in respect of an offence without a warrant, and

(b) since being arrested, the person has not been charged with an offence by a constable.

(2) Authorisation to keep the person in custody must be sought as soon as reasonably practicable after the person—

(a) is arrested at a police station, or

(b) arrives at a police station, having been taken there in accordance with section 4.

(3) Authorisation may be given only by a constable who—

(a) is of the rank of sergeant or above, and

(b) has not been involved in the investigation in connection with which the person is in police custody.

(4) Authorisation may be given only if that constable is satisfied that the test in section 14 is met.

(5) If authorisation is refused, the person may continue to be held in police custody only if—

(a) a constable charges the person with an offence, or

(b) the person is detained under section 28(1A) of the 1995 Act (which allows for detention in connection with a breach of bail conditions).

Information to be given on authorisation

8

At the time when authorisation to keep a person in custody is given under section 7, the person must be informed of—

(a) the reason that the person is being kept in custody, and

(b) the 12 hour limit arising by virtue of section 9 and the fact that the person may be kept in custody for a further 12 hours under section 11.

12 hour limit: general rule

9

(1) Subsection (2) applies when—

(a) a person has been held in police custody for a continuous period of 12 hours, beginning with the time at which authorisation was given under section 7, and

(b) during that period the person has not been charged with an offence by a constable.

(2) The person may continue to be held in police custody only if—

(a) a constable charges the person with an offence,

(b) authorisation to keep the person in custody has been given under section 11, or

(c) the person is detained under section 28(1A) of the 1995 Act (which allows for detention in connection with a breach of bail conditions).

12 hour limit: previous period

10

(1) Subsection (2) applies where—

(a) a person is being held in police custody by virtue of authorisation given under section 7,

(b) authorisation has been given under that section to hold the person in police custody on a previous occasion, and

(c) the offence in connection with which the authorisation mentioned in paragraph (a) has been given is the same offence or arises from the same circumstances as the offence in connection with which the authorisation mentioned in paragraph (b) was given.

(2) The 12 hour period mentioned in section 9 is reduced by the length of the period during which the person was held in police custody by virtue of the authorisation mentioned in subsection (1)(b).

(3) Subsections (5) and (6) of section 15 apply for the purpose of calculating the length of the period during which the person was held in police custody by virtue of the authorisation mentioned in subsection (1)(b).

Authorisation for keeping in custody beyond 12 hour limit

11

(1) A constable may give authorisation for a person who is in police custody to be kept in custody for a continuous period of 12 hours, beginning when the 12 hour period mentioned in section 9 ends.

(2) Authorisation may be given only by a constable who—

(a) is of, or above, the rank of—

(i) inspector, if a constable believes the person to be 18 years of age or over,

(ii) chief inspector, if a constable believes the person to be under 18 years of age, and

(b) has not been involved in the investigation in connection with which the person is in police custody.

(3) Authorisation may be given only if—

(a) the person has not been held in police custody by virtue of authorisation given under this section in connection with—

(i) the offence in connection with which the person is in police custody, or

(ii) an offence arising from the same circumstances as that offence, and

(b) the constable is satisfied that—

(i) the test in section 14 will be met when the 12 hour period mentioned in section 9 ends,

(ii) the offence in connection with which the person is in police custody is an indictable offence, and

(iii) the investigation is being conducted diligently and expeditiously.

(4) Before deciding whether or not to give authorisation the constable must—

(a) where practicable afford a reasonable opportunity to make verbal or written representations to—

(i) the person, or

(ii) if the person so chooses, the person's solicitor, and

(b) have regard to any representations made.

(5) If authorisation is given, it is deemed to be withdrawn if the person is released from police custody before the 12 hour period mentioned in section 9 ends.

(6) Subsection (7) applies when—

(a) by virtue of authorisation given under this section, a person has been held in police custody for a continuous period of 12 hours (beginning with the time at which the 12 hour period mentioned in section 9 ended), and

(b) during that period the person has not been charged with an offence by a constable.

(7) The person may continue to be held in police custody only if—

(a) a constable charges the person with an offence, or

(b) the person is detained under section 28(1A) of the 1995 Act (which allows for detention in connection with a breach of bail conditions).

Information to be given on authorisation under section 11

12

(1) This section applies when authorisation to keep a person in custody is given under section 11.

(2) The person must be informed—

(a) that the authorisation has been given, and

(b) of the grounds on which it has been given.

(3) The person—

(a) has the right to have the information mentioned in subsection (2) intimated to a solicitor, and

(b) must be informed of that right.

(4) The person must be reminded about any right which the person has under Chapter 5.

(5) Subsection (4) does not require that a person be reminded about a right to have intimation sent under either of the following sections if the person has exercised the right already—

(a) section 38,

(b) section 43.

(6) Information to be given under subsections (2), (3)(b) and (4) must be given to the person as soon as reasonably practicable after the authorisation is given.

(7) Where the person requests that intimation be sent under subsection (3)(a), the intimation must be sent as soon as reasonably practicable.

Custody review

13

(1) A custody review must be carried out—

(a) when a person has been held in police custody for a continuous period of 6 hours by virtue of authorisation given under section 7, and

(b) again, if authorisation to keep the person in police custody is given under section 11, when the person has been held in custody for a continuous period of 6 hours by virtue of that authorisation.

(2) A custody review entails the consideration by a constable of whether the test in section 14 is met.

(3) A custody review must be carried out by a constable who—

(a) is of the rank of inspector or above, and

(b) has not been involved in the investigation in connection with which the person is in police custody.

(4) If the constable is not satisfied that the test in section 14 is met, the person may continue to be held in police custody only if—

(a) a constable charges the person with an offence, or

(b) the person is detained under section 28(1A) of the 1995 Act (which allows for detention in connection with a breach of bail conditions).

Test for sections 7, 11 and 13

14

(1) For the purposes of sections 7(4), 11(3)(b) and 13(2), the test is that—

(a) there are reasonable grounds for suspecting that the person has committed an offence, and

(b) keeping the person in custody is necessary and proportionate for the purposes of bringing the person before a court or otherwise dealing with the person in accordance with the law.

(2) Without prejudice to the generality of subsection (1)(b), in considering what is necessary and proportionate for the purpose mentioned in that subsection regard may be had to—

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