The powers of the police in Scotland, as with much of Scots law, are based on mixed elements of statute law and common law.
Powers of arrest Powers of arrest in Scotland are derived from the Criminal Justice (Scotland) Act 2016. The purpose of an arrest is to bring a person who is suspected of having committed an offence punishable by imprisonment to justice, or to prevent a person who has committed an offence from continuing to commit that offence or from obstructing the course of justice in any way. Prior to the Criminal Justice (Scotland) Act 2016, powers of arrest and detention in Scotland were derived from common law and the Criminal Procedure (Scotland) Act 1995. The now defunct powers of arrest under common law and statutory detention were noted by Lord Carloway in the Carloway Review as being "a peculiar, if not unique, feature of modern Scots criminal procedure". The Criminal Justice (Scotland) Act 2016 was introduced in order to "modernise and enhance the efficiency of the Scottish criminal justice system."
Powers of arrest without warrant The statutory power of arrest without warrant by constables in Scotland are set out in Chapter 1 of the Criminal Justice (Scotland) Act 2016. It provides a constable with the power of arrest without warrant if they have reasonable grounds for suspecting that the person has committed or is committing an offence. The power of arrest without warrant under the Terrorism Act 2000 can also be used.
Once a person has been placed under arrest, a statement, similar to the caution read in England and Wales as set out under the Police and Criminal Evidence Act 1984, must be read to the person as soon as reasonably practical, informing them:
that they are under arrest, the general nature of the offence for which the person is arrested the reason for the arrest they are not obliged to say anything other than to provide the constable with their name, address, date of birth, place of birth and nationality, and they have the right to both intimation and access to a solicitor
This statement is set out under Police Scotland's Standard Operating Procedure governing the arrest process as the following:"I am arresting you under Section 1 of the Criminal Justice (Scotland) Act 2016 for (general nature of offence). The reason for your arrest is that I suspect you have committed an offence and I believe that keeping you in custody is necessary and proportionate for the purposes of bringing you before a court or otherwise dealing with you in accordance with the law. Do you understand? You are not obliged to say anything but anything you do say will be noted and may be used in evidence. Do you understand? I do require you to give me your name, date of birth, place of birth, nationality and address. You have the right to have a solicitor informed of your arrest and to have access to a solicitor. These rights will be explained to you further on arrival at the police station."Where an arrest occurs outside a police station, a constable must take the person as quickly as is reasonably practicable to a police station. If the person is released by police before being taken to a police station, they can be de-arrested if the constable is satisfied that there are no reasonable grounds for suspecting that the person has committed any offence.
Not Officially Accused A person is defined as Not Officially Accused when they have been arrested without warrant under Section 1 of the Criminal Justice (Scotland) Act 2016 but has not been charged or reported to the Crown Office and Procurator Fiscal Service.
Once the person arrives at a police station, the arresting officer must speak to the custody Sergeant to seek authorisation to keep the person in custody. Authorisation may only be given if the custody Sergeant is satisfied that:
there are reasonable grounds for suspecting that the person has committed an offence, and 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.
If the person's custody has been authorised, they may only be held for a maximum period of 12 hours. After this 12 hour period, the person must either be charged with an offence or held for a further 12 hours following authorisation from a police inspector if the person is believed to be 18 years of age or over, or a chief inspector if the person is believed to be under 18 years of age. This authorisation of extension can only be given if the constable is satisfied that:
the previous authorisation test is still satisfied the offence the person is believed to have committed is an indictable offence the investigation into the offence the person is believed to have committed is being conducted diligently and expeditiously
Officially Accused A person is defined as Officially Accused when they have been arrested without warrant under Section 1 of the Criminal Justice (Scotland) Act 2016 and have been charged or reported to the Crown Office and Procurator Fiscal Service.
When a person who is Officially Accused is arrested and taken into police custody, they may be held until they can be brought before a court to be tried.
Powers of arrest with warrant
A warrant is obtained from a court where it is required to secure the attendance of the person named on the warrant before the court. Warrants can be issued for both witnesses and suspects in trials. Warrants may also be issued where powers of arrest for an offence do not exist or for non-payment of fines.
There are three main types of warrant that grant constables a power of arrest:
Apprehension warrant – Commonly used where the accused cannot be traced or has gone into hiding or for those who fail to appear at court. A constable may break open shut and lockfast places when executing an apprehension warrant. Fines enquiry warrant – Issued where a fine has been imposed on a person as part of a sentence and has not been paid. The person can then be arrested and put before a means enquiry court to ascertain their ability to pay the fine. Extract conviction warrant – A custodial sentence can be imposed on a person in the absence of the ability to pay a fine. The person can be arrested by police and given the opportunity to pay the fine. If the fine is not paid then the custodial sentence is to be imposed.
Powers of entry The main power used by police in Scotland to enter property is derived from common law. It broadly states that police are empowered to enter a house or other building without a warrant for the purposes of:
protecting life and property; quelling an ongoing disturbance or disorder; assisting when hearing cries for help or of distress; close pursuit of a person who has committed or attempted to commit a serious crime, e.g. murder, rape, robbery or theft by housebreaking.
Moreover, police can also enter and search a premises where an invitation has been freely given by the occupant.
Powers to direct traffic The power to direct traffic exists under many road traffic laws, regulations, and orders. The prominent powers come from the Road Traffic Act 1988 with section 35 requiring drivers to comply with instructions from a constable when that constable is engaged in the regulation of traffic in a road. Further to this, section 37 creates an offence where a pedestrian does not comply with an instruction from a constable in uniform to stop and continues to proceed across or along the carriageway, when that constable is engaged in the regulation of vehicular traffic in a road.
Powers of search Police powers of search in Scotland can include both search with a warrant or search without a warrant.
Search with a warrant A warrant is often craved to search a premise and is granted by a Sheriff or Justice of the Peace. A Justice of the Peace has limited authority as to the reason for granting the warrant – only for any controlled drug per Section 23(3) of the Misuse of Drugs Act 1971 or for stolen property at Common Law. The warrant must contain the purpose and limitations, i.e. what the police are looking for and the premise being searched. The warrant will specify the address of the premise being searched and will usually extend to include common areas, curtilage, outbuildings and all persons within. The warrant when executed will cease to exist and should police need to re-enter the premises after departing they may require another warrant.
Search without a warrant The police in Scotland have powers under various pieces of legislation to search individuals for prohibited items, weapons, and stolen property. This is commonly known as "stop and search". Prior to 11 May 2017, officers were able to stop and search any person who consented to a search without requiring any grounds to suspect that person of committing a crime or having any prohibited items on their person. A new code of practice, made under the Criminal Justice (Scotland) Act 2016, came into force on that date which prohibits the practice of consensual searches. The stop and search of a person can only take place whether either a statutory power to search exists or a warrant permits a constable to search that person. Police officers generally have no right to enter private premises to conduct a search without first obtaining a warrant. They may however search the premises without a warrant where the occupier has granted their permission. Legislation conferring a power to stop and search include, but is not limited to, the following: