Skip to navigation Skip to content Skip to footer

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

This advice applies to Scotland

This page applies to anyone arrested on or after 25 January 2018

Changes to arrest and custody in Scotland came into force on 25 January 2018.

If you were arrested before 25 January 2018 and are still in police custody at the beginning of that day, the old rules will apply to you. See If you are detained or arrested by the police in Scotland before 25 January 2018.

When the police can arrest you and take you into custody

References to the police on this page include the British Transport Police, the MOD police and the Civil Nuclear Constabulary.

Arrest allows the police to hold you in custody for a period of time. Custody can end in different ways, for example you could be released without charge. 

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.

Arrest may be with or without a warrant.

If you're drunk, and liable to be arrested, the police can choose not to arrest you and instead take you to a 'designated place' to sober up. You don’t have to stay there against your will but the officer could arrest you subsequently if you have or are committing a crime.

Arrest with a warrant

Warrants to arrest are legal documents that state the grounds for arrest. They are issued by Sheriffs (or Justices of the Peace in emergencies).

For less serious crimes, where you would not receive a prison sentence if you were convicted, the police officer should get a warrant to arrest. The only exception to this is when they consider it to be in the interests of justice to arrest you immediately, for example, if you would continue committing the crime, avoid arrest or destroy evidence. This will be at the discretion of the police officer.

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.

Arrest without a warrant

A police officer has the power to arrest you without a warrant if they have reasonable grounds for suspecting that you have committed or are committing an offence.

For example:

  • the police officer sees you in the act of committing a crime, or
  • you're accused by an apparently credible witness of being seen committing a crime, or
  • you're seen running away from the scene of 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.

Reasonable force

A police officer can use reasonable force to arrest you. 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 explore making a complaint or taking legal action

Citizen's arrest

A private citizen has certain common law powers of arrest but these should be exercised with great care as wrongful arrest can result in a claim for financial compensation by the arrested person.

The crime would have to be more serious than a breach of the peace for the citizen's arrest to be reasonable. You would have to be sure that a crime had actually been committed, for example, by witnessing it or being the victim.

When a citizen's arrest is made, reasonable force may be used if the person resists and the arrested person must be handed over to the police as soon as possible.

What should happen when you are arrested

1.   What you should be told when you are 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 may 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.

2.   You are taken to the police station or a place specified 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 are arrested under a warrant, it may require you to be taken to another place other than a police station. 

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.

3.   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

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 are 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 may 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 are released but rearrested

The custody clock stops when you are 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 if you are arrested and held in custody

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

Custody ends when:

  • you are released from custody without charge
  • you are taken to court after having been charged with an offence
  • you are 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

Right to information about your rights

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. A copy of the letter is available on the Scottish Goverment website at www.gov.scot

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

Rights of children and young people under 18

If you're under 18 the police have to take extra steps to ensure your safety and wellbeing.

You have the right to:

  • remain silent (although you have to give your name, address, date of birth, where you were born and your nationality)
  • lawyer
  • interpretation and translation
  • reasonable conditions
  • have a parent or guardian told you're at the police station

Right to a lawyer

It's in your best interests to have a lawyer there when you are interviewed. 

If you're under 16 years of age or 16/17 and have a compulsory supervision order, you can't be interviewed without a lawyer, even if you want to be. 

If you're 16 or 17 and not vulnerable or under a compulsory supervision order, you'll need the consent of a parent or another adult if you want to be interviewed without a lawyer. The police will ask them and will need to tell them about the crime you are suspected of. They should be allowed to see you before they are asked whether they agree or disagree.

Where will you be held

You can be held in custody at the police station but you shouldn't be in contact with any adults that have been charged with a crime.

If you are charged you will usually be held in a safe place rather than police cells. 

Will social work be told

If you're under a compulsory supervision order, the police will tell the social work department and they may visit you in custody. 

The social work department will also be told if the police delayed contacting a parent or guardian because they were worried about your wellbeing. 

Can your parents or other adults visit you

If you are under 16

The police must usually tell a parent or guardian as soon as possible and ask them to come to the police station. 

You don’t have the right to use the phone yourself, so an officer will make the call for you.

A senior officer might decide to delay telling your parents if, for example, they think it is best for your safety and wellbeing and they want a social worker to visit you.

When your parents arrive they must be allowed to see you unless a senior officer refuses the visit.

If the police can't contact a parent or guardian, or they can't visit you, they will keep trying to reach an apropriate person.

If you are 16 or 17

The police won't automatically contact a parent or guardian. You have the right to ask for a parent or guardian, or any adult you choose, to be told you're in custody and asked to visit you. 

You can ask that the police don't ask your parent or guardian to come to visit you at the police station. Even if they come to the police station you can refuse to see them.

If the police can't reach your named contact, they will keep trying to reach an apropriate person who will visit you, unless you ask them not to. 

If you want to, you must be allowed to see the person who was contacted unless a senior officer refuses the visit.

If a visit to a child or young person is refused by the police

A parent, or the person contacted by the police, should be allowed access to a child under 16 who is in custody. The police may only allow access to one person at a time. 

A visit could be refused in exceptional circumstances if:

  • a senior officer decides it is in the best interests of the child's wellbeing
  • a senior officer refuses the visit to prevent crime or to investigate further  

A young person of 16 or 17 can refuse a visit if they wish. 

If the police refuse parents access to children in custody without a good reason, this may lead to evidence obtained being ruled inadmissible.

If you are a parent or guardian and you feel that visiting your child has been delayed or refused without a good reason, you may be able to make a complaint or take legal action against the police

Everyone in custody has the right to:

  • have a lawyer told as soon as possible that they're in custody, where they are being held and that legal advice is needed
  • to have a lawyer present during police interviews. The police should not interview you until your lawyer is present
  • to have a private meeting with their lawyer at any time. You may also get legal advice over the phone 

You are entitled to legal advice even if you haven't been charged with a crime. 

The police can delay a private meeting with your solicitor if it is necessary to prevent or investigate crime, but they should not refuse it completely. If the police refuse to allow you to have a private meeting that you've asked for with your lawyer you could challenge this in court. 

In exceptional circumstances a senior officer could allow you to be interviewed without a lawyer if it is necessary to prevent or investigate crime or apprehend offenders.

Contacting a lawyer

Access to a lawyer at the police station is free for everyone

You can either:

  • ask the police to contact a particular lawyer. The police will phone them for you, or
  • ask for a duty solicitor, if you don't have a lawyer. Duty solicitors give legal advice to people in custody. The police will call them for you. 

If the police can't contact the lawyer you've named, they will contact a duty solicitor. 

Can you refuse a lawyer

Most adults can agree to be interviewed without a lawyer but it is not in your best interests. The police will take a note of why you chose not to have a lawyer. The police shouldn't try to influence your decision whether 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 may not understand what is happening or be able to communicate with the police because of a mental illness, learning disability or personality disorder

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.

You can change your mind and choose to have a lawyer at any time. 

Right to have someone else told you are at the police station

As well as a lawyer, you have the right to have one other person told that you are at the police station. This might be a family member, a carer or a friend.

You don't have the right to make a telephone call personally - the police will do this for you. The police must do this without delay unless there is a good reason not to, for example, that it might lead to the destruction of evidence or the warning of accomplices. The delay shouldn't be longer than is needed to investigate, prevent crime or apprehend offenders.

Right to remain silent

If you're cautioned and charged at the time of arrest you will be informed that you do not have to make any statement, but that anything you do say will be noted and may be used in evidence.

You don't have to answer any questions the police ask you. You do have to give your name, address, date of birth, where you were born and your nationality. You may feel it is best not to say anything further to the police until you have consulted a solicitor. You can say 'no comment'. 

Right to interpretation and translation

If you're in police custody and you don't speak or understand English, or you have a speech or hearing impediment, you have a right to help with understanding the police proceedings. You may need an interpreter. The police must arrange this for you and it must be free.

You also have a right to translations of essential documents, such as the charges against you. These translations must be provided within a reasonable time and they must be free of charge. Only some parts of the essential documents may be translated or an oral translation may be provided as long as this would not be unfair to you.

If the police decide that you don't need an interpreter or any translations of essential documents and you disagree, you or your lawyer should ask for a review of the decision. The review must be carried out by a senior officer who hasn't been part of the investigation.

If you do get help but you think it took too long or was not of a good enough quality to allow you to understand the proceedings, you can make a complaint.

Right to reasonable conditions

The police are expected to put arrested people in reasonable accommodation and provide regular meals. Police cells are considered reasonable accommodation. 

Items like your belt and shoelaces may be taken from you when you're searched. Any clothing or property will be returned when you're released unless it's kept as evidence. Police stations have disposable shell suits or paper suits to wear, and you may be able to get clothing sent from home.

Volunteers called Independent Custody Visitors visit police stations to check on the treatment of people held in police custody and conditions. You can ask to speak to an independent custody visitor if they visit the station. 

An independent custody visitor who finds something wrong or who receives a complaint will usually try to resolve the problem with the police station's duty inspector but, if it isn't resolved, they will raise it with senior police.

It's not possible to contact an independent custody visitor after you're released from police custody.

Extra help for vulnerable adults in custody

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

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

You may be assigned a specially trained person to help you understand what is happening and communicate with the police. This person is known as an appropriate adult. They are 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 may 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'. 

If you're released without being charged, or the charge against you is dropped, or you're found not guilty by a court, then the photographs will be destroyed by the police. If you're charged, the photographs will be kept until you go to court. If you're found guilty, the photographs will be kept with your criminal record.

Police powers to take finger prints and body samples in custody

If you've been arrested, the police will usually take your fingerprints, and may 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, eg a fine or work order.

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 maxiumum of two 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.

Identification parades in custody

If you have not been arrested you do not have to take part in an identification parade, but may 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 may 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 may 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 six 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 may decide to:

  • release you (because they no longer suspect you of a crime), or
  • release you pending further enquiries (because you are 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 you without 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 authority where and when a child or young person is being taken to court.

Going to a police station voluntarily to answer questions

This applies to voluntary interviews on or after 25 January 2018. 

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 may 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 one hour before they start to interview you the police should tell you:

  • the general 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 may not understand what is happening or be able to communicate with the police because of a mental illness, learning disability or personality disorder 

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:

  • are unhappy with police behaviour
  • think that the police acted beyond their powers
  • think the police failed to use correct procedures
  • think the police denied you your rights without good reason
  • think 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 may be able to help, such as taking up concerns about cell conditions. 

Did this advice help?
Why wasn't this advice helpful?
Did this advice help?

Thank you, your feedback has been submitted.