We are strengthening the powers available to police to help keep our communities safe, whilst protecting the rights of those suspected or accused of crime.
Police powers of arrest
We have introduced changes to modernise the law around the arrest and questioning of suspects in Scotland.
The Criminal Justice (Scotland) Act 2016 introduced new investigative tools for police with additional scope for post-charge questioning whilst protecting the rights of suspects.
Changes to arrest and custody procedures included:
- a single statutory power of arrest without warrant where there is reasonable grounds for suspecting someone has committed an offence - replacing the previous separate concepts of arrest and detention
- enabling police to release a suspect for further investigation with conditions (for up to 28 days) with the power to re-arrest
- a duty on police to take every precaution to ensure someone is not unnecessarily held in police custody
- explicit protection of a person’s right to remain silent
- extending the rights of those held, giving them the right to speak to a solicitor whether or not they are going to be interviewed
- greater protection for those under 18
- a duty to safeguard and promote the wellbeing of a child as a primary consideration when deciding whether to arrest the child
The changes were designed to provide a balance between proper investigation of offences and the protection of suspects’ rights whilst in police custody.
The changes were introduced in response to the 2011 Carloway Review of Scottish criminal law and practice.
See the Criminal Justice (Scotland) Act 2016.
Police stop and search powers
Stop and search is an important police power for promoting public safety and preventing and detecting crime. It allows police officers to search people for dangerous objects, drugs, stolen goods, weapons and other items
However, we must ensure a balance between protecting the public and recognising the rights of individuals.
We have published a code of practice setting out when police can use stop and search. This was developed alongside an advisory group of experts and came into force in May 2017.
The code states that the use of stop and search powers must be necessary, proportionate and in accordance with the law.
It includes specific guidance on stop and search of children and vulnerable adults.
An independent review of the first 12 months of the operation of the code was published in June 2019. This review was supported by both qualitative and quantitative research and an internal review conducted by Police Scotland.
Age of Criminal Responsibility
Children under the age of 12 can no longer be charged or arrested. The Age of Criminal Responsibility (Scotland) Act 2019 is part of our commitment to protecting and promoting the rights and interests of children and young people. The Act was commenced in phases, and was fully commenced on 17 December 2021.
The Act includes a bespoke package of police investigatory and other powers. These are capable of use only in the most serious situations. We worked closely with Police Scotland on the implementation of this aspect of the Act.
Read more: age of criminal responsibility in the youth justice section of this site.