Powers of arrest without warrant

The statutory power of arrest without warrant by constables in Scotland are set out in Chapter 1 of the Criminal Justice (Scotland) Act 2016. It provides a constable with the power of arrest without warrant if they have reasonable grounds for suspecting that the person has committed or is committing an offence. The power of arrest without warrant under the Terrorism Act 2000 can also be used.

Once a person has been placed under arrest, a statement, similar to the caution read in England and Wales as set out under the Police and Criminal Evidence Act 1984, must be read to the person as soon as reasonably practical, informing them:

• that they are under arrest,
• the general nature of the offence for which the person is arrested
• the reason for the arrest
• they are not obliged to say anything other than to provide the constable with their name, address, date of birth, place of birth and nationality, and
• they have the right to both intimation and access to a solicitor

This statement is set out under Police Scotland's Standard Operating Procedure governing the arrest process as the following:

"I am arresting you under Section 1 of the Criminal Justice (Scotland) Act 2016 for (general nature of offence). The reason for your arrest is that I suspect you have committed an offence and I believe that keeping you in custody is necessary and proportionate for the purposes of bringing you before a court or otherwise dealing with you in accordance with the law. Do you understand?

You are not obliged to say anything but anything you do say will be noted and may be used in evidence. Do you understand?

I do require you to give me your name, date of birth, place of birth, nationality and address.

You have the right to have a solicitor informed of your arrest and to have access to a solicitor. These rights will be explained to you further on arrival at the police station."^[3]

Where an arrest occurs outside a police station, a constable must take the person as quickly as is reasonably practicable to a police station.^[4] If the person is released by police before being taken to a police station, they can be de-arrested if the constable is satisfied that there are no reasonable grounds for suspecting that the person has committed any offence.^[3]

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.^[6][7] Warrants may also be issued where powers of arrest for an offence do not exist or for non-payment of fines.^[7]

There are three main types of warrant that grant constables a power of arrest:^[7]

• 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.^[8]
• 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 conviction 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.

Search with a warrant

A warrant is often craved to search a premise and is granted by a Sheriff or Justice of the Peace. A Justice of the Peace has limited authority as to the reason for granting the warrant - only for any controlled drug per Section 23(3) of the Misuse of Drugs Act 1971 or for stolen property at Common Law.^[10] The warrant must contain the purpose and limitations, i.e what the police are looking for and the premise being searched. The warrant will specify the address of the premise being searched and will usually extend to include common areas, curtilage, outbuildings and all persons within. The warrant when executed will cease to exist and should police need to re-enter the premises after departing they may require another warrant.

Search without a warrant

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.^[11] A new code of practice, made under the Criminal Justice (Scotland) Act 2016,^[12] 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.^[13] Police officers generally have no right to enter private premises to conduct a search without first obtaining a warrant. They may however search the premises without a warrant where the occupier has granted their permission.^[14] Legislation conferring a power to stop and search include, but is not limited to, the following:

In addition to these powers, constables are empowered to search any person they have arrested at common law 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.^[15]

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 police officer of the rank of Inspector or above and may only be done by officers of the same sex as the person being searched.^[13]

Seizure

Police have the common law power to seize evidence as part of a criminal investigation. Where it is alleged, or there is a reasonable belief, that any liquid, animal, document or article has a connection to a crime or offence under review, they can be taken by police as a production.

Aside from this, there are statutory powers that permit police to seize specific items namely;

• Motor vehicles - where driven without licence or insurance under section 165A, Road Traffic Act 1988.^[16]
• Cash and listed assets - where a reasonable suspicious is held that these have been obtained through criminal activity, provided the amount is at least £1,000 in cash or listed assets (like precious metals/stones or watches) these can be seized under the Proceeds of Crime Act 2002, s289 or s303C.
• Fireworks - The police can confiscate fireworks that they think are going to be used for antisocial purposes under the Fireworks Act 2003, s11A.

Surrender

Police also have statutory powers to require the surrender of specific items such as alcohol and tobacco products from persons under 18 years of age - these are surrendered without a search.

• Alcohol - when in possession of persons under 18 years of age and in a public place or a constable has reasonable grounds for suspecting that a person of or over the age of 18 will supply to a person under the age of 18 for consumption in a public place. See section 61, Crime and Punishment (Scotland) Act 1997.^[17]
• Tobacco products or cigarette papers - when in possession of persons under 18 years of age and in a public place under section 7, Tobacco and Primary Medical Services (Scotland) Act 2010.^[18]