2.1 The Criminal Justice (Scotland) Act 2016 (Part 1) "( CJ(S)A)" represents a significant change to the system for arresting and holding people in custody. The new arrest and custody process will provide a clear balance between the proper investigation of offences and the protection of suspects' rights whilst in police custody. The Scottish Government are working closely with Police Scotland and other stakeholders to bring Part 1 into force in 2017. This consultation is part of that process.
2.2 The CJ(S)A contains procedures and protections which will apply to all arrests. While the majority of arrests are of people suspected of a criminal offence, there are arrests for other reasons - for example an arrest for a breach of a protective court order or a witness arrested under warrant to ensure they attend court. For these arrests, not all the procedures and protections set out in the Act are appropriate. Two examples of necessary modifications to the CJ(S)A are given below
(i). Arrests other than on suspicion of criminal offences- information about the offence: The CJ(S)A sets outs the information to be given to a person upon arrest and this includes the nature of the suspected offence. With these types of arrests, where there is no offence suspected, the regulations which are explained below introduce a modification to the information that has to be given to the arrested person.
(ii) Arrests under warrant or under specific legislation: where a person can be taken when arrested: The CJ(S)A sets out that an arrested person must be taken to a police station, and this is not appropriate for certain types of arrest. For these arrests, these regulations enable the police to retain the flexibility to take an arrested person to the place indicated on the warrant or in legislation (for example a court or prison) without first going to a police station.
2.3 The necessary changes can be made by regulations under section 60 of the CJ(S)A, which allows the Scottish Ministers to modify or dis-apply sections of Part 1 of the CJ(S)A to persons arrested otherwise than under the new power of arrest under section 1.
2.4 The purpose of this consultation is to seek feedback on how Part 1 of the CJ(S)A should apply to non-offending arrests, including certain warrant arrests. This will be used to shape the final regulations made under section 60. A draft set of regulations is included in Annex D . The regulations will be subject to parliamentary scrutiny by way of the affirmative procedure.