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If you were detained or arrested by the police in Scotland before 25 January 2018

This advice applies to Scotland

This page applies to anyone arrested before 25 January 2018

Changes to arrest and custody in Scotland came into force on 25 January 2018. If you were arrested on or after 25 January 2018 the new rules will apply to you. See If you are arrested and held in custody by the police in Scotland.

Going to a police station voluntarily to answer questions

If you agree to attend a police station voluntarily, in order to answer questions about a crime, you will be required to sign a form stating that attendance is voluntary.

If you are a suspect, the police will warn you that you do not have to say anything, and that any statement will be noted and may be used in evidence.

If you are attending a police station voluntarily, and not detained, you are free to leave at any time.

However, if the police suspect that you have committed a crime, they could decide to detain you to prevent you from leaving and allow them to continue questioning. 

What should happen if you are detained by the police 

The police have the power to detain you for questioning if they suspect you have committed an offence. Detention means you cannot leave until the period of detention is over, but you have certain rights, like the right not to speak

You can’t be detained more than once in connection with the same offence, or an offence which arises out of the same grounds.

How long can you be detained?

You can only be detained for a maximum of 24 hours before the police must either arrest you or release you. The police should allow you to leave if there are no longer any grounds for suspicion after you are questioned.

The initial detention period is 12 hours. During the initial 12 hour period, a police custody review officer can authorise an extension to 24 hours. The police may ask for this if they want to question you more.

Where can the police detain you? 

Detention usually takes place in a police station, but during a detention you can be moved from the police station to any other place.

If you are handcuffed and questioned by the police outside a police station you may also be entitled to have access to a solicitor. This access may be in person or by telephone.

Your rights when you are detained at the police station

The right to know what the police think you have done

They must explain the general nature of the suspected crime. You also have the right to ask for and receive, free of charge, any documents that are held by the police that are essential to allow you to challenge your detention.

The right not to speak 

You do not 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.

The right to a solicitor

You have the right to have a solicitor told that you are at the police station. This is free.

You can speak to a solicitor at any time before or during questioning. The police may delay your access to a solicitor during detention if they think it is necessary in the interests of the ongoing investigation, or to ensure the prevention of crime, or to prevent the escape of offenders. There is no fixed time limit.

The solicitor may meet with you in person, or speak to you by telephone. You have the right to speak to a lawyer in private.

You may need legal aid to help with the cost of a solictor. See Help with legal costs

The right to have someone else told you are at the police station 

As well as a solicitor, 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 do not 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. There is no fixed time limit but any delay should be no longer than is necessary to investigate or prevent the crime or apprehend offenders.

Rights of children and young people under 16 

If you are a young person under 16 being detained by the police, the police should tell your parents or guardians as soon as possible and may allow them to visit you at the police station.

Parents do not have a legal right to see a child who is detained and the police may refuse or delay a visit in some circumstances:

  • if the visit is not in the child's best interests 
  • if there is a suspicion that the parent or guardian are involved in the crime.

If the police refuse access by parents to children in custody without a good reason, this may lead to evidence obtained in such circumstances not being allowed by the court. 

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

Rights of young people under 18 with a compulsory supervision order 

If you are under 18 and subject to a compulsory supervision order, you have the right to be visited by your parent or guardian at the police station. The police should tell your parents or guardians as soon as possible and may allow them to visit you at the police station.

Parents do not have a legal right to see a young person who is detained and the police may refuse or delay a visit in some circumstances:

  • if the visit is not in the young person's best interests 
  • if there is a suspicion that the parent or guardian are involved in the crime.

If the police refuse access by parents to young people in custody without a good reason, this may lead to evidence obtained in such circumstances not being allowed by the court. 

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

The right to urgent medical help 

The police will ask you questions about your health when you are taken into custody. You should tell them as soon as possible if you are injured, feel unwell or have a medical condition which requires supervision or medication (such as diabetes). If you think you need to see a doctor tell the police. 

Extra help for vulnerable adults

If you are considered to be a vulnerable adult due to mental illness, a learning disability, dementia or brain damage, you should be assigned a specially trained person to assist you. This person is known as an appropriate adult.

They should ensure that you are not disadvantaged during the interview with the police.

If you think the police detained you unlawfully 

You may have been detained unlawfully if, for example, you were not informed of your rights or were denied one of your rights without good reason. You should seek advice from a solicitor. See Complaints and legal action against the police

When the police can arrest you

Arrest is a first step in bringing someone to trial for an offence, and means that a person can be held in police custody.

Arrest may be with or without a warrant.

A police officer has the power to arrest you without  a warrant if you are:

  • in the act of committing a crime, or
  • accused by an apparently credible witness of being seen committing a crime, or
  • seen running away from the scene of a crime pursued by others, or
  • threatening danger to the public, or
  • causing an offence to public decency.

A police officer can also arrest you without a warrant under a range of statutes, such as:

  • the Misuse of Drugs Act 1971
  • the Prevention of Terrorism Act 2000
  • the Prostitution (Public Places) (Scotland) Act 2007).

Arrest with a warrant

Warrants to arrest are issued by Procurators Fiscal and Sheriffs (or Justices of the Peace (JP) in emergencies) and state the grounds for the arrest. The warrant provides authority to undertake an intimate body search of the arrested person which means a 'strip search' but not an invasive search which involves an internal examination.

What should happen when you are arrested

If you are arrested by the police you should be told what you are being arrested for and which law applies at the time of the arrest.

However, if the circumstances make this impossible, the police should inform you of the reason as soon as reasonably practicable. An arrest is not necessarily unlawful because no reason was given at the time of your arrest.

An arrest will not be regarded as unlawful if the accused is subsequently released and no further proceedings are taken against her/him, so long as the police officer concerned had good reason for making the original arrest.

Where you can be held and for how long

You may be held in police custody (police cells) following arrest but in many cases the police release an accused people after charging them.

If you are arrested and held in custody, you must to be brought before the sheriff or Justice of the Peace (JP) court no later than the next day after the arrest, excluding weekends and public holidays. This means that if you are arrested on Friday, you can be kept in police cells over the weekend until Monday morning.

Your rights if you are arrested and held in custody

Arrest is the first step in the proceedings for bringing someone to trial for an offence and means that you can be held in police custody.

You have the rights below, from the time you are arrested by a constable until:

  • you are released from custody without being charged
  • you are brought to court after having been charged with an offence
  • you are brought to court after being arrested for breach of bail conditions.

A child is in police custody when they have been arrested and are being detained by the police in a place of safety. Police custody ends when the Principal Reporter has been informed that a charge will not be brought against the child, but the child is kept in a place of safety until it is decided whether a compulsory supervision order is required.

Right to information about your rights

You must be provided with information (verbally or in writing) about your rights. When you are at the police station the police should give you a "letter of rights" in your native language or a language you can understand. This sets out your rights while in police custody. A copy of the letter, in multiple languages, is available on the Scottish Government website at www.gov.scot.

If you have not been informed of your rights, you may be able to challenge the custody as unlawful. Speak to a solicitor as soon as possible. 

You have the right to have a solicitor notified immediately and to have a private interview with them before being brought to court. You don’t have the right to use the phone yourself, so an officer will make the call for you.

You, or someone you know, could look for and choose a solicitor yourself. If you don’t have a solicitor, you can see a duty solicitor. A solicitor who has been told their client is in custody does not have to visit but is likely to do so if the charge is serious. Even if the duty solicitor does not come to the police station they may phone and enquire about bail and other matters.

You may need legal aid to help with the cost of a solictor. See Help with legal costs

The right to have someone else told you are at the police station 

As well as a solicitor, 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 do not 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. There is no fixed time limit but any delay should be no longer than is necessary to investigate or prevent the crime or apprehend offenders.

Right to remain silent

If you are 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 do not 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. 

Right to interpretation and translation

If you are in police custody and you do not 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 or a sign interpreter for example. The police must arrange this for you and it must be free of charge.

You also have a right to translations of essential documents, such as a document containing 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 solicitor should ask for a review of the decision. The review must be carried out by a police constable who is an inspector or above and has not 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.

Rights of children and young people under 16

A child is in police custody when they have been arrested and are being detained by the police in a place of safety. Police custody ends when the Principal Reporter has been informed that a charge will not be brought against the child, but the child is kept in a place of safety until it is decided whether a compulsory supervision order is required.

If you are a young person under 16 being detained by the police, the police should tell your parents or guardians as soon as possible and may allow a parent or guardian to visit you at the police station.

You can ask the police not to allow the visit if this is against your wishes. The police should refuse the visit if it is not in your best interests.

The police can also refuse to let a parent or guardian visit if there is a suspicion that they are involved in the crime.

If the police refuse access by parents to children in custody without a good reason, this may lead to evidence obtained in such circumstances 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

Right to reasonable conditions

The police are expected to put arrested people in reasonable accommodation and provide regular meals. Any clothing or property taken will be returned to you on release unless the property is 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. This used to be called lay visiting. A police station should be able to give details of the independent custody visitor scheme in its area. You can ask to speak to an independent custody visitor if you are concerned about custody conditions.

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 is not resolved, they will raise it with senior police.

It is not possible to contact an independent custody visitor when you have been released from police custody.

A bureau may be able to report general concerns about a particular police station to the independent custody visitor scheme.

Vulnerable adults

If you are considered to be a vulnerable adult due to mental illness, a learning disability, dementia or brain damage, you should be assigned a specially trained person to assist you. This person is known as an appropriate adult.

They should ensure that you are not disadvantaged during the interview with the police.

Police powers to search you

If you are detained for questioning or have been arrested you must allow the police to search you. The police can also remove belongings, including clothing, 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 have 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 because a special warrant is required for a search of the body orifices.

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.

Police powers to take photographs

If you have 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 a standard photograph known as a 'mug shot'. 

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

Police powers to take finger prints and body samples

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

  • body hair samples, other than pubic hair
  • finger or toe-nail clippings or other material from the nail
  • blood or other body tissue or fluid gained by swabbing or rubbing
  • saliva that can be swabbed from the inside of the mouth.

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

If you are convicted, records of your prints and impressions will be kept on police files along with your criminal record. Otherwise, in most cases, records of your prints and impressions will be destroyed. However, records of 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

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

If you are 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 have accepted an alternative to prosecution in court, like a fine or work order, it can be kept 2 years (3 in the case of certain violent and sexual offences). The police can also apply to keep the DNA information for further periods of up to 2 years at a time, on a rolling basis, or
  • if destroying your DNA records could result in prints and samples from another person being lost, and therefore the loss of evidence which could prosecute the other person, or
  • if the Chief Constable makes a written national security determination, DNA can be kept for two years. This is a determination that the samples should be kept for national security purposes. The DNA can be kept for longer if the determination is renewed, or
  • if you are 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 before it must be destroyed. 

There are separate rules governing the retention of relevant physical data when the suspect is under 16 and has been referred to a children's hearing.

Identification parades

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.

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 videoed 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 is unconnected 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 proceedings
  • 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 are allowed to choose where to stand in the parade and may change position after viewing by each witness
  • there should be a minimum of six people in a parade (including the suspect)
  • any reasonable request which you or your solicitor make beforehand should be allowed
  • 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.

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

Tape recording of interviews

The police will record interviews to make sure that an accurate record of the interview is made, and that the questioning follows proper procedures.

Two copies are made. One copy of the tape goes to the Procurator Fiscal, and an accused person's solicitor can apply to the fiscal for access to the tape. The recordings may be produced in court as evidence.

Citizens 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 damages by the person arrested. The crime for which someone might make a citizen's arrest would have to be more serious than a breach of the peace for their actions to be viewed as reasonable and the person making the arrest 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.

Asylum seekers’ compulsory attendance at police stations

Asylum seekers may be required to attend a police station on a regular basis as part of their asylum application. Failure to do so could result in rejection of their asylum application. An asylum seeker will be compulsorily fingerprinted when they make their asylum application. A refusal to allow fingerprinting could result in the asylum application being rejected.

Complaints about the police and challenging treatment against your human rights

When you are held in a police station it must be done in accordance with the law and police powers. If you are unhappy with any aspect of police behaviour, or think that the police acted outwith their powers, failed to use correct procedures or denied you your rights without good reason, then you can consider making an official complaint.

If you feel that you were detained or held in custody unlawfully, you should get advice from a specialist solicitor. See Using a solicitor

You may want to challenge your treatment by the police if you think your detention or custody is a breach of your human rights. For example, being denied immediate access to a solicitor.

While you are detained, an independent custody visitor may be able to help. To challenge your treatment you will need a specialist solicitor or organisation that can help with human rights issues. See Taking action about human rights.

 

 

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