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If you are detained or arrested by the police

This advice applies to Scotland

What should happen if you are detained at a police station 

How long can they hold you

The police have the power to detain you for questioning if they suspect you have committed an offence and if found guilty this would lead to a prison sentence. This outcome would be a measure of how serious the offence is.

If you are detained, the detention must end no later than 24 hours after it started, or earlier if there are no longer any grounds for suspicion or if you are arrested.

What can happen during a detention

The police must tell you why you have been detained. They must explain the general nature of the suspected crime and inform you that you do not need to answer any questions other than giving your name, address, date and place of birth and your nationality.

If you have been detained in police custody you must be provided with information (verbally or in writing) about your rights, for example, to access a solicitor. The police must record who has given you this information and the time that it was given. There are human rights considerations when you are interviewed by the police during detention. 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 you effectively challenging your detention.

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

Initial detention time limit and how it can be extended

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 without having to get a court’s permission. You are entitled to have access to a solicitor immediately.

Detention usually takes place in a police station, but 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 a personal meeting or telephone contact.

During a detention you can be moved from the police station to any other place.

Powers to search, take photographs and take samples and fingerprints

While detained the police also have the power to search you, take fingerprints, palm prints and other impressions and, where necessary, use reasonable force to ensure you comply with these requirements. The police can also take photographs.

If either an intimate (strip) search or invasive internal search is required, there are rules governing each of these searches and a special warrant is required.

Rights to have a solicitor and another person informed of your detention

If you have been detained by the police, you have the right to have a solicitor and one other person informed of your detention and whereabouts. 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 a vulnerable adult

If a person who has been detained is vulnerable due to mental illness, a learning disability or suffers from acquired brain damage or dementia, a scheme called the appropriate adult scheme should be running in the area to assist the person. The scheme should provide a specially trained person to assist the vulnerable adult to ensure that s/he is not disadvantaged during the interview with the police.

Rights of a young person under 16

If a young person under 16 is detained by the police, the police should tell their parents or guardians as soon as possible and may allow a parent or guardian access to the young person at the police station. The police can refuse access if there is a suspicion that the parent or guardian is involved in the crime or offence or if it is in the interests of the child to delay access.

Your rights if you are arrested 

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. Some of these rights are the same as apply if you have just been detained in a police station. 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.

When can the police arrest you

The police can arrest you if they have a valid arrest warrant. A warrant will state the grounds for arrest. They also have a 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 also has the power to arrest you without a warrant under a range of statutes, for example, the Misuse of Drugs Act 1971 and the Prevention of Terrorism Act 2000.

What should happen on arrest

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.

When will the police charge someone

The police will charge a person when they have enough evidence to prove that they have committed an offence. The charge is a statement which says:

  • what crime the person is charged with, and
  • when the crime was committed, and
  • where the crime was committed.

If the offence is not a serious one and the police have no reason to doubt that you are normally a law abiding person, you may be charged but not detained any further. Later you may receive a citation from the Procurator Fiscal to appear in court and, for some offences, may be offered the opportunity to plead guilty by letter.

In other, more serious cases, the police may decide to hold you in custody, in a police cell, after arresting and charging you with an offence.

You must be cautioned once you have been charged

If you are charged, the police must caution you that you do not need to say anything in answer to the charge but that you have the opportunity to reply. Any reply that you make will be noted and may be used in evidence.

Rights in police custody

If you are held in police custody following an arrest, the police must escort you before the sheriff or district court no later than the next day after the arrest, excluding weekends and public holidays. You must be provided with information (verbally or in writing) about your rights, for example, to access a solicitor.

Once you have been charged with an offence, you are not obliged to say anything to the police and have the right to remain silent if you wish. If you do make any kind of statement this will be noted and may be used in evidence.

If you have been arrested and held in a police station, you have the right to have a solicitor and one other person informed of your arrest, without delay. You don’t have the right to make the telephone call personally, the police will do this for you. An arrested person may choose a solicitor or they can use a duty solicitor and they have the right to a private interview with their solicitor before being brought to court. The police must inform you of your rights (verbally or in writing) and must record who has given you the information and the time it was given. 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 you effectively challenging your detention.

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.

If you are in police custody and you do not understand English, you 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.

If the police decide that you don't need an interpreter or any translations of essential documents and you disagree, you can request a review of the police's decision. 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.

Prints and body samples

If you have been arrested, the police as a matter of routine usually take your fingerprints, palm prints and other impressions. The police also take a standard photograph 'a mug shot'. The police have the powers to do all of this. Other samples can also be taken using reasonable force if a police inspector provides permission:

  • 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.

Blood samples can also be taken as long as there is a warrant to do so.

If you are convicted, records of your prints and impressions will be retained 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.

In the case of certain violent and sexual offences, the police have the power to keep your DNA information for up to 3 years, even if you are acquitted by the court or if the case is dropped.

The police can also apply for an extension, to enable them to retain the DNA information for further periods of up to 2 years at a time.

Searches

If you have been arrested with the authority of a warrant, the police will have the power to undertake an intimate body search, which means a strip search but not an invasive search, which involves an internal examination. A special warrant generally has to be obtained to carry out an invasive search and a medical practitioner must carry this out. A 'strip search' can be authorised by a senior police officer, for example, to look for concealed drugs.

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 be destroyed. However, DNA details can be held for 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.

In the case of certain violent and sexual offences, the police have the power to keep your DNA information for up to 3 years, even if you are acquitted by the court or if the case is dropped.

The police can also apply for an extension, to enable them to retain the DNA information for further periods of up to 2 years at a time.

Identification parades

If you have been arrested, the police have the power to make you take part in an identification parade. However, there are certain safeguards for the conduct of identification parades, for example, you have the right to have a solicitor present and the other people in the parade should look broadly similar to you in terms of gender, age, height, dress and general appearance.

Young people

If a young person under 16 is arrested, the police must inform the parents or guardian without delay and allow them access to the child at the police station. Access may be refused if delay in giving the access is necessary due to suspicion that the parent or guardian is involved in the crime or offence or it is in the interests of the well being of the child.

Vulnerable people

If a person who has been detained or arrested is vulnerable due to mental illness, a learning disability or suffers from acquired brain damage or dementia, a scheme called the appropriate adult scheme should be running in the area to assist the person. The scheme should provide a specially trained person to assist the vulnerable adult to ensure that s/he is not disadvantaged during the interview with the police.

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.

Independent custody visitors

Independent custody visitors have the right to visit police stations to check on the treatment of people held in police custody and the conditions in which they are held.

It is not possible for an individual to contact an independent custody visitor when s/he has 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.

More information is available on the Independent Custody Visitors Association website at www.icva.org.uk

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