Powers of the police in Scotland

The powers of the police in Scotland, as with all Scots criminal law, are heavily based on common law. There is no statutory equivalent the general powers of arrest in England and Wales but individual statutes might confer a power for specific offences where the general power of arrest might not otherwise be available.

Powers of Arrest and Detention

Powers of arrest in Scotland are derived both from common law and statute law. Arrests may be made with a warrant or without a warrant and an arrest is generally made with the intention of charging a person with an offence and bringing them before a court.^a A power of investigatory detention also exists. These two methods of taking a person into custody were noted by Lord Carloway in the Carloway Review as being "a peculiar, if not unique, feature of modern Scots criminal procedure".

On 25 January 2018 the distinction between arrest and detention in Scots law is to be removed when the Criminal Justice (Scotland) Act 2016 comes into force. The power to detain a suspect will be substituted with a power to arrest on suspicion of an offence being committed.

Common law arrest without warrant

The common law powers available to a constable include arresting any person:

• The constable witnesses committing a common law crime or who the constable witnesses being pursued from the scene of the crime by others.
• Accused of committing a common law crime by an apparently credible witness.
• Causing danger to the public or causing an offence to public decency.

Where the crime is of a serious nature the person(s) should be taken into custody immediately however for less serious offences these powers diminish with time unless:

• The offender refuses to desist.
• The offender refuses to provide their name and address or the details given are suspected to be false.
• The offender is of no fixed abode.
• The arrest is necessary in the interest of public safety or that of the offender.

Statutory powers of arrest without warrant

Arrest without warrant is permitted by a wide variety of statutes. Statutory powers of arrest fall into one of three categories:

• Unconditional - A constable may arrest without warrant any person who contravenes the relevant statutory provisions.
• Conditional - A power of arrest exists only where a specific condition exists such as following a positive preliminary breath test under the Road Traffic Act 1988.
• Silent - No reference is made to a power of arrest in the statute. A constable may still arrest a person where the statute is silent regarding powers of arrest if it is in the interests of justice to do so e.g. if the offender refused to desist.

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 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 detention

A power of detention exists under section 14 of the Criminal Procedure (Scotland) Act 1995 where the police may not have enough evidence to arrest and charge a person but wish to question that person or take samples from them such as fingerprints and DNA. A constable requires reasonable grounds to suspect a person is committing or has committed an offence punishable by imprisonment to exercise this power and a person may only be detained once in connection with the same set of circumstances. The requirement for a police power to allow for a person to be detained and questioned prior to there being sufficient evidence to charge was suggested by the Thomson Committee in 1975 and was included in the 1995 act.^b

The period of detention was initially a maximum of 6 hours which could be extended to 12 hours subject to authorisation from a constable of the rank of Inspector or above. Access to a solicitor did not have to be provided at any point during this period of detention. Following the decision made in Cadder v HM Advocate in 2010 solicitor access the initial period of detention was extended by emergency legislation passed by the Scottish Government to 12 hours, rising to a maximum of 24 hours. A person detained in police custody now has the right to solicitor access prior to or during any questioning.

A more limited form of detention exists under section 13 of the Criminal Procedure (Scotland) Act 1995 which allows a constable to require a person they suspect of having committed (or who is committing) any offence to remain with them whilst the persons personal details are noted, an explanation regarding the circumstances is provided to the constable and their details are verified by the constable. A constable may use reasonable force to require a person to remain with them and if a person fails to comply with any requirement made by the constable they may be arrested without warrant. A constable may also require a witness who the constable believes has information relating to any offence to provide their personal details however they cannot be made to remain with the constable and they do not have to offer any explanation of the circumstances. Should they fail to provide their details they may however be arrested as a suspect would.

Powers of search

Police powers of search in Scotland can include both search with a warrant or search without a warrant.

Search without a warrant

Stop and Search

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. Legislation conferring a power to stop and search include, but is not limited to, the following:

Section and Act	What can be searched for	Grounds for conducting search	Notes
Section 47 of the Firearms Act 1968	Firearms and ammunition	Reasonable cause to suspect a person is in possession of a firearm or ammunition in a public place	Can be exercised elsewhere than in a public place where the constable suspects the person to be committing or about to commit trespass with a firearm or they are carrying a firearm with criminal intent.
Section 23 of the Misuse of Drugs Act 1971	Controlled drugs	Reasonable grounds to suspect that that person is in possession of controlled drugs	A constable may also search any vehicle or vessel they suspect a controlled drug may be found in and may require the person in control of the vehicle or vessel to stop it.
Section 23A of the Misuse of Drugs Act 1971	Controlled drugs	Reasonable grounds to suspect that that person is in possession of A temporary class drugs	A constable may search the person and detain them for the purposes of searching them for temporary class drugs, if it does not appear to the constable that a power under section 23(2) applies to the case.
Section 60 of the Civic Government (Scotland) Act 1982	Stolen property	Reasonable grounds to suspect a person is in possession of any stolen property	A constable may also search any vehicle or vessel they suspect stolen property may be found in and may require the person in control of the vehicle or vessel to stop it.
Section 4 of the Crossbows Act 1987	Crossbows	Reasonable cause to suspect a person under the age of 18 is in possession of a crossbow	A constable may also search a vehicle under this provision.
Section 11 of the Protection of Badgers Act 1992	Evidence of an offence relating to badgers	Reasonable grounds to suspect a person of committing or having committed an offence under that act or the Badgers Act 1973	A constable may also search a vehicle under this provision.
Section 11A of the Fireworks Act 2003	Fireworks	Prohibitions include possession of “adult fireworks” in a public place by persons under the age of 18	A constable may search if they have reasonable grounds for suspecting that the person possesses a firework in contravention of a prohibition imposed by fireworks regulations.
Section 60 of the Criminal Justice and Public Order Act 1994	Offensive weapons, dangerous instruments and items for concealing identity	No grounds required where authorisation has been given	Authorisation may be given by an officer of the rank of Superintendent or above for up to 24 hours for a particular area. A constable in uniform may stop pedestrians or vehicles and search persons.
Section 21 of the Criminal Law (Consolidation) (Scotland) Act 1995	Alcohol or controlled article, container or substance	Reasonable grounds to suspect a person is committing or has committed an offence under Part II of the act	Allows a constable to search a person at a designated sporting fixture for fireworks, flares, alcohol, bottles, cans and various other items.
Section 48 of the Criminal Law (Consolidation) (Scotland) Act 1995	Offensive weapons	Reasonable grounds to suspect a person is carrying an offensive weapon in a public place	An offensive weapon is defined as an article made, adapted or intended for causing injury to a person.
Section 49B of the Criminal Law (Consolidation) (Scotland) Act 1995	Offensive weapons/bladed or pointed articles in Schools	A constable may enter school premises and search those premises and any person on those premises for any article to which section 49 of the Act applies, or any offensive weapon within the meaning of section 47 of the Act, if they have reasonable grounds for suspecting that an offence under section 49A of the Act is being, or has been, committed.
Section 50 of the Criminal Law (Consolidation) (Scotland) Act 1995	Pointed or bladed articles	Reasonable grounds to suspect a person is carrying an pointed or bladed article in a public place	Where a constable has reasonable grounds for suspecting that a person has with them an article to which Section 49 of the Act applies and has committed or is committing an offence under s49 (1).
Section 66 of the Criminal Justice (Scotland) Act 2016	An item or substance that could cause harm to a person	Where a person is being transported by a constable by virtue of any enactment, order or warrant or where they are being transported and it is necessary for the care and protection	Could be used when transporting a person to a place of safety under section 297 of the Mental Health (Care and Treatment) (Scotland) Act 2003 for instance.
Section 67 of the Criminal Justice (Scotland) Act 2016	To ensure the health, safety and security of people attending an event	Any person seeking to enter or who has entered relevant premises or any person seeking to attend or who is attending a relevant event	Can be used to search a person as a condition of entry to a place or event subject to certain conditions.c
Section 7 of the Protection of Wild Mammals (Scotland) Act 2002	Hunting a Wild Mammal with a dog	A constable who suspects that a person has committed or is committing an offence under this Act may stop and search if reasonable to suspect evidence in connection with the offence is to be found on that person.
Section 4 of the Wild Mammals (Protection) Act 1996	Protection of Wild Mammals	Evidence of the commission of offence	Where a constable has reasonable grounds for suspecting that a person has committed an offence under the provisions of this Act (various harms to wild mammals) and that evidence of the commission of the offence may be found on that person, the constable may without warrant, stop and search that person.

In addition, at common law, constables are empowered to search any person they have arrested to find any of the articles which may have assisted them in, or are products of, the crime or offence with which they have been charged.

When searching a person in a public place a constable may require a person to remove an outer coat, jacket, gloves, headgear or footwear. Should a more thorough search requiring removal of any other item of clothing this should be done out of public view where possible. Where a search involves exposure of an intimate part of the body (a strip search) this must be done at a police station or other nearby location that is out of public view. A strip search may only be conducted when authorised by a constable of the rank of Inspector or above and may only be done by officers of the same sex as the person being searched.

Premises

Police officers generally have no right to enter private premises to conduct a search without first obtaining a warrant. They may however conduct a search of the premises without a warrant where the occupier has granted their permission.

Power to Direct Traffic

The power to direct traffic (also available to traffic wardens but NOT parking attendants) 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.

Power to Control Behaviour

This exists in various forms typically associated with prevention of highway obstruction, control of the safety of public assemblies and prevention of potential or perceived threats to others. There is no specific offence attached to merely disobeying a constable's lawful instruction but there are various offences attaching to the events causing such an instruction to be given; examples might include obstructing the highway or hindering a constable (or any person assisting him/her) in the execution of his duty.

Notes

a.^ "There remains the difficulty which is created by the rule that arrest must be accompanied by a charge, and this raises a fundamental issue. [...] and if arrest is competent only when police enquiries have reached the stage at which there is sufficient evidence to charge, it follows that the police have no power to detain a person whom they have reasonable grounds to suspect of a crime unless and until the evidence against him is sufficiently corroborated to justify reporting him to the procurator fiscal". Criminal Procedure in Scotland (Second Report), Lord Thomson, 1975, section 3.10.

b.^ "We recommend, therefore, a form of limited, or temporary arrest- arrest on suspicion. Since the rules governing this 'arrest' will differ from those governing arrest at the moment, we give it a separate name - detention." Criminal Procedure in Scotland (Second Report), Lord Thomson, 1975, section 3.15.

c.^ "Section 67 provides express statutory authority for the police to search people as a condition of entry at relevant premises and events, for the purposes of ensuring the health, safety or security of people there. This is subject to specific conditions: the premises or event must be open to members of the public, entrance must be controlled by the occupier or organiser, (so this will not apply to public marches or demonstrations), the occupier or organiser must have imposed a condition of entry that the person consents to being searched and the person must inform the constable that they consent to being searched." Explanatory note on section 67 of the Criminal Justice Scotland Act 2016

See also

• Powers of the police in England and Wales