If you are arrested and held in custody by the police in Scotland

When can the police arrest you and take you into custody

On this page, the police means:

• Police Scotland

• the British Transport Police

• the MOD police

• the Civil Nuclear Constabulary.

Arrest allows the police to take you into custody, like at a police station or in hospital. 

A police officer can use reasonable force to arrest you. In legal speak, this means they must use the minimum amount of physical force necessary to accomplish the lawful objective concerned. If you think a police officer used unnecessary force, you could make a complaint or take legal action. 

The police can arrest you more than once in relation to the same crime. So you could be arrested, questioned, released without charge and then arrested again if new evidence came to light.

Do the police need a warrant

Warrants are legal documents that state the grounds for arrest. They're granted by Sheriffs or Justices of the Peace.

The police don't necessarily need a warrant to arrest you. 

For less serious crimes that you wouldn't get a prison sentence for, the police officer should get a warrant to arrest. The only exception to this is when they think it's in the interests of justice to arrest you immediately, for example, if you'll continue committing the crime, avoid arrest or destroy evidence. This will be at the discretion of the police officer.

A police officer has the power to arrest you without a warrant if they have reasonable grounds for suspecting that you've committed or are committing a crime. For example you're:

• seen committing a crime or running away from the scene, or

• accused by a credible witness of being seen committing a crime.

You can also be arrested under specific laws not connected with an offence, for example if you breach a court order to stay away from your partner (a matrimonial interdict).

A police officer can also arrest without a warrant if they reasonably suspect you to be a terrorist.

The warrant gives authority to do an intimate body search of the arrested person, meaning a 'strip search' but not an invasive search that would involve an internal examination.

What should happen when you're arrested

You should be told as soon as possible:

• that you're under arrest, and

• what offence you're being arrested for, and

• why you're being arrested, and

• your rights not to say anything other than your name, address, date of birth, place of birth and nationality, and

• your right to see a solicitor.

The police officer might not be able to tell you these things immediately but should do so as soon as possible. An arrest is not necessarily unlawful because you weren’t told these things at the point of being arrested but you should tell your solicitor. 

A plain-clothes officer should show you identification as soon as possible if you ask to see it.

The police can arrest you and then release you afterwards and take no further action, so long as the police officer had a good reason for making the original arrest.

You're taken to the police station or a place stated on the warrant 

You should be taken to a police station as soon as possible after you're arrested. The police can use reasonable force to do this.

If you're arrested under a warrant, it might require you to be taken to another place other than a police station, like a hospital. 

If the police officer arrested you without a warrant and on the way to the station they no longer suspect that you have committed a crime, they can release you straight away.

The police could also arrest you at a hospital if you're getting medical treatment, and hold you in custody there instead of taking you to the police station.

The police decide whether to hold you in custody

As soon as possible after you're taken to the police station a senior police officer must decide whether you should be kept in custody (in police cells). You could also be held in custody at a hospital if you're getting medical treatment.

You can be held in custody if you are a suspect or have been charged (also known as 'officially accused').

Police officers have a duty not to hold you in custody unreasonably or unnecessarily.

They should only keep you in custody if:

• there are reasonable grounds for suspecting that you have committed an offence, and

• keeping you in custody is necessary and proportionate, because the crime is very serious, to stop you from destroying evidence or to allow them to investigate further.

If a senior officer does not think you should be kept in custody, you should be either released or charged with an offence. You can continue to be held in custody for a breach of bail conditions without being charged.

How long can you be held in custody without being charged

Section 11 of the Criminal Justice (Scotland) Act 2016 says you can be held in custody for a maximum of 24 hours before the police must either charge you or release you. The clock starts when a senior officer authorises for you to be held in custody. There are different rules if you're being kept for a breach of bail conditions. 

There will be a review of your custody at the 6 and 18 hour points. If, at any time, the police no longer suspect you have committed a crime, they should release you.

At the 12 hour point, the police will assess whether you should be kept in custody. They might decide to charge you with the crime, release you or could ask for authority to keep you in custody for up to another 12 hours. You can ask to see a solicitor at this time. 

Only a senior officer can give permission for you to be kept in custody. They have a duty not to hold you in custody unreasonably or unnecessarily. 

You or your lawyer should have the opportunity to speak or write to the senior officer before they make this decision. If they decide to keep you in custody you should be told why and reminded of your rights.

They should only keep you in custody for up to another 12 hours if:

• the investigation is being done well and quickly, and 

• there are reasonable grounds for suspecting that you have committed an indictable offence (a serious crime like rape or murder), and

• keeping you in custody is necessary and proportionate, for example, to stop you from destroying evidence or to allow them to investigate further.

If you're released but rearrested

The custody clock stops when you're released and starts again if you're rearrested for the same offence. You can only be held, without being charged, for the remainder of the 12 hour period.

If you're taken to hospital for medical treatment, the clock stops while you're in hospital, unless the police interview you at the hospital or travelling to or from the hospital.

Your rights in custody

You have the rights below, from the time you are arrested until custody ends.

Custody ends when:

• you're released from custody without charge

• you're taken to court after having been charged with an offence

• you're taken to court after being arrested for breach of bail conditions

• no charges are being brought against a child under 16 but they are kept in a place of safety until it is decided whether they need a compulsory supervision order.

You must be provided with information (verbally or in writing) about your rights. When you're at the police station the police should give you a 'letter of rights' in your native language or a language you can understand. You can find the letter of rights in different languages on the Scottish government website. 

If you haven't been informed of your rights, you might be able to challenge the custody as unlawful. Speak to a lawyer as soon as possible. 

Extra help for vulnerable adults in custody

The police might consider you to be a vulnerable adult if you have difficulty understanding what is happening or communicating because of a mental health condition, learning disability, dementia or brain damage.

You must be interviewed with a lawyer, even if you don't want one. 

If the police think you need support, they must contact a specially trained person who can help you understand what's happening and communicate with the police. This person is called an Appropriate Adult. They're separate from the police.

You can have an appropriate adult and a lawyer.

Police powers to search you in custody

If you're in custody the police have the power to search you. The police can also confiscate your belongings, particularly if something could be used as a weapon. The search must be carried out by an officer who is the same sex as you. If you identify as transgender you should tell the police as soon as possible. 

If you've been arrested under a warrant, the police will have the power to do an intimate body search or 'strip search'. This should only be done by an officer of the same sex and in private. They can ask you to remove clothing and you might be asked to hold your arms in the air or stand with your legs apart. They can only look at genital or anal orifices when a special warrant has been issued.

An invasive search involves physical examination of the body orifices and can only be carried out by a nurse or a doctor. A special warrant has to be obtained to carry out an invasive search. You can ask to see the warrant.

Police powers to take photographs in custody

If you've been arrested or are detained under suspicion of having committed a crime for which you could be put in prison, the police have the power to take photographs of you. They will take standard photographs known as 'mug shots'. 

The photographs will be destroyed by the police if any of the following applies:

• you are released without being charged

• the charge against you is dropped

• you are found not guilty by a court.

If you are charged, the photographs will be kept until you go to court.

If you are found guilty, the photographs will be kept with your criminal record.

There is a Code of Practice that sets out how photographs and other biometric data should be used by:

• Police Scotland

• The Scottish Police Authority

• The Police Investigations and Review Commissioner.

You can find the Code of Practice on the Scottish Biometrics Commissioner website. 

If you do not think the Code of Practice has been followed, you can make a complaint to the Commissioner. You can find out how to make a complaint on the Scottish Biometrics Commissioner website. 

Police powers to take fingerprints and body samples in custody

If you've been arrested, the police will usually take your fingerprints, and might take palm prints or other impressions. Other samples can also be taken using reasonable force if a police inspector provides permission, such as:

• saliva swabbed from inside the mouth.

• body hair samples, other than pubic hair

• nail clippings 

• samples from under the nail

• blood swabs or other body tissue or fluid gained by swabbing or rubbing.

The police can only take blood samples from the vein if they have a warrant.

If you're convicted, your prints and impressions will be kept with your criminal record. Otherwise, in most cases, your prints and impressions will be destroyed. However, your prints or impressions can be held for up to 2 years (3 in the case of certain violent and sexual offences) where you have accepted an alternative to prosecution in court, for example a fine or work order.

There is a Code of Practice that sets out how fingerprints and other biometric data should be used by:

• Police Scotland

• The Scottish Police Authority

• The Police Investigations and Review Commissioner.

You can find the Code of Practice on the Scottish Biometrics Commissioner website. 

If you do not think the Code of Practice has been followed, you can make a complaint to the Commissioner. You can find out how to make a complaint on the Scottish Biometrics Commissioner website. 

DNA testing while in custody

If you've been detained or arrested, the police have the power to carry out a DNA test. 

If you're convicted, your DNA details will be held permanently on the National DNA Database.

If you are subsequently acquitted or if criminal proceedings are dropped, your DNA details will usually be destroyed. However, it may be kept in some circumstances:

• if you've  accepted an alternative to prosecution in court, like a fine or work order, it can be kept for 2 years. The police can apply to keep the DNA information for further periods of up to 2 years, on a rolling basis, although if you're convicted of an antisocial behaviour offence and pay a fixed penalty or fine, your DNA can only be kept for a maximum of 2 years

• if you've accepted an alternative to prosecution in court, like a fine or work order for some violent and sexual offences, it can be kept for 3 years 

• if destroying your DNA records could result in prints and samples from another person being lost, so they couldn't be prosecuted

• if the chief constable decides the samples should be kept for national security purposes, it can be kept initially for 2 years.

There are separate rules for keeping your DNA if you're under 16 and are referred to a children's hearing.

There is a Code of Practice that sets out how DNA and other biometric data should be used by:

• Police Scotland

• The Scottish Police Authority

• The Police Investigations and Review Commissioner.

You can find the Code of Practice on the Scottish Biometrics Commissioner website. 

If you do not think the Code of Practice has been followed, you can make a complaint to the Commissioner. You can find out how to make a complaint on the Scottish Biometrics Commissioner website. 

Identification parades in custody

If you have not been arrested you do not have to take part in an identification parade, but might be asked to do so voluntarily. You should get advice from a solicitor before agreeing to take part. 

If you have been arrested, the police have the power to make you take part in an identification parade. You have the right to have a solicitor present. You might have to be filmed to provide a picture for a virtual identification parade.

There are certain safeguards for the conduct of identification parades:

• the parade should be conducted by a police officer who isn't connected with the investigation of the crime. The police officer in charge of the case under investigation might be present, but should take no part in the parade

• the other people in the parade or line up should look broadly similar to you in terms of sex, age, height, dress and general appearance

• you're allowed to choose where to stand in the parade and may change position after viewing by each witness

• there should be at least 6 people in a parade (including the suspect)

• you have the right to object to the composition of the parade, and any objection should be noted by the police officer in charge. You must not interfere with the conduct of the parade

• any reasonable request which you or your lawyer make beforehand should be allowed.

When there is a vulnerable witness or a child witness they may be allowed to view suspects on a virtual identification parade. 

Recording of interviews in custody

The police will record interviews to make sure that an accurate record of the interview is made, and that the questioning follows proper procedures. The interview could be written in a police notebook, voice recorded or video recorded. The recordings may be produced in court as evidence.

Ending custody – being released or charged 

Depending on the evidence they have, at the end of the custody period the police might decide to:

• release you - because they no longer suspect you of a crime, or

• release you pending further enquiries - because you're a suspect but the police need to investigate further, or

• release you with conditions as a suspect - this is called investigative liberation, or

• charge you with a crime and keep you in custody, or

• charge you with a crime but release you to appear at court on a specified date (called an undertaking)

• charge you with a crime and release youwithout an undertaking to be called to court at a later date.

Released with conditions

Investigative liberation means the police release you but you have to follow certain conditions for up to 28 days. A condition could state that you cannot be in a certain place at a certain time. For example, to stop you from destroying evidence or intimidating witnesses.

A condition cannot require you to be at a certain place at a certain time.

The conditions will end if they're removed by the police or a court, you're re-arrested or you are charged. You must be told in writing if the conditions are removed or changed.

If you think a condition placed on you is unnecessary or too harsh, you can apply to the sheriff court to have it reviewed. The court can remove or change it. You would need a lawyer to do this and you would attend a private hearing in court.

Released on an undertaking

An undertaking means that you agree to appear at court on a specified date and keep to certain conditions. A condition could be to not approach witnesses or commit a further crime. You can apply to the court for a review of these conditions. 

You can only be released on an undertaking if you've been arrested without a warrant.

Being taken to court

If you're charged with an offence (also known as being officially accused) or you are arrested under a warrant, the police must usually take you to court before the end of the next day the court sits. If you're arrested and charged on a Friday or over the weekend, you may be held in police cells until Monday if the court is closed on the weekend. Some courts are open on Saturday.

Children under 16 or young people with a compulsory supervision order will usually be kept in a safe place, rather than police cells, before being taken to court. Your parents will be told when, where and why you're being taken to court, unless the police think that telling them would be bad for your wellbeing.

You could appear in court by live television link rather than in person.

In some circumstances the police will tell the local council where and when a child or young person is being taken to court.

Going to a police station voluntarily to answer questions

If you agree to attend a police station voluntarily to answer questions about a crime, you'll be asked to sign a form stating that attendance is voluntary. You might be there as a witness or a suspect.

Being questioned voluntarily as a suspect

You might choose to go to the police station voluntarily if the police suspect you of a crime, for example because you want to clear your name.

If you're a suspect, at least 1 hour before they start to interview you the police should tell you:

• thegeneral nature of the offence they suspect you have committed

• that you have the right to silence - other than your name, address, date of birth, place of birth and nationality

• that you have the right to have a solicitor present during the interview.

Any statement that you make will be noted and may be used in evidence.

If you're attending a police station voluntarily you are free to leave at any time. However, the police could decide to arrest you and take you into custody to prevent you from leaving and allow more questioning. 

Right to have a lawyer while you are being questioned as a suspect

You have the right to have a lawyer present while you're being interviewed. Most adults can agree to be interviewed without a lawyer but it is not likely to be in your best interests. The police will take a note of why you chose not to have a lawyer.

Some people can only be interviewed with a lawyer present:

• children under 16 years of age

• young people with a compulsory supervision order aged 16 or 17 

• vulnerable adults - 16 years or older who might not understand what is happening or be able to communicate with the police because of a mental health condition or learning disability.

16 and 17 year olds who are not vulnerable or under a compulsory supervision order will need the consent of a parent or another adult if they want to be interviewed without a lawyer.

If you choose to have a lawyer, the police should not start the interview until your lawyer is present, unless a senior officer thinks questioning should start straight away to prevent crime or apprehend a criminal. But you still have the right to silence.

Complaints about the police and challenging treatment against your human rights

You must be held in custody in accordance with the law, your human rights and within police powers.

See Complaints and legal action against the police for your options if you feel:

• unhappy with police behaviour

• police acted beyond their powers

• police failed to use correct procedures

• police denied you your rights without good reason

• your custody or treatment was a breach of your human rights.

If you feel that you were arrested or are being held in custody unlawfully, you should get advice from your lawyer. Legal advice at the police station is free. 

While you are in custody, an Independent Custody Visitor might be able to help, such as taking up concerns about cell conditions.