Section 60 Criminal Justice (Scotland) Act 2016: consultation analysis

Q1. Do you agree that Part 1 of the Criminal Justice (Scotland) Act 2016 needs to be modified to deal with people arrested for breach of protective interdicts and other court orders?

Five responses were received to this question. All respondents who answered this question agreed that regulations would be required.

Q2. If yes, do you believe that the modifications outlined above are appropriate?

Five responses were received to this question. Specific points were raised in relation to interdicts where a court has made a determination that the interdict was a "domestic abuse interdict". It was rightly pointed out by one respondent that if a court has made that determination then breach of such an interdict would be a criminal offence and dealt with in the same manner as other criminal offences and be subject to all of the Part 1 CJ(S)A 2016 provisions. The Respondent was clear that in order to differentiate between these interdicts, there requires to be clear guidance issued to the police as to what powers of arrest should be used where the civil interdict has been "determined" and breach is a criminal offence, as opposed to what could be regarded as "non-offence based interdicts" .

The respondent in this case was clear that regulations were required to deal with the non-offence based interdicts, noting that, further, regardless as to whether the civil interdict is either a "determined" or "non-determined" interdict, procedures will also require to be in place for the police to respond to ancillary criminal offences committed during the breach of interdict (for instance, assault, threatening and alarming behaviour, criminal damage, breach of the peace, etc). This aspect will be dealt with within standard operating procedures produced by Police Scotland.

Q3. Do you agree that the protections in sections 22, 23 and 24 of the 2016 Act should apply to a child arrested on non-offending grounds and held for court?

Four responses were received to this question. The respondents stated that where children were arrested for breach of a protective order or under a witness warrant then the application of section 22, 23 and 24 of the CJ(S)A 2016 would be appropriate. It was however highlighted by one of the respondents that arrests of children in these circumstances would be a rare occurrence.

Q4. Do you agree that section 4 of the Criminal Justice (Scotland) Act 2016 should be modified to allow a person to be taken directly to a place other than a police station if a warrant or other enactment provides for this to happen?

Five responses were received to this question. Three of the respondents indicated that they agreed that there should be flexibility provided in the Act to allow individuals arrested under warrant to be taken directly to a place indicated on the warrant as opposed to a police station.

One of the respondents highlighted that there should be a time limit on the amount of time an individual could be held in a police station if they could not be taken directly to the place indicated on the warrant. It would be the intention that the arrested person would only be taken to the police station only where the premises the person should be taken as indicated on the warrant is closed. For example prisons are closed for new receptions at certain times in the evening through to the next morning. The person would be held in police custody until the premises was open again for new receptions.

One respondent also indicated that persons arrested under a witness warrant and taken directly to court should have the ability to seek legal advice. It would be the intention that a person would be given information as described in section 3 of the Act including the right to have intimation to a solicitor. If that right was requested by the person then the police would inform them. It also has to be recognised that at this stage the person has not been arrested for a criminal offence and it would be for the court to decide if charges were to be brought against them.

General Comments

The Part 1 CJ(S)A Implementation Group discussed and agreed the draft regulations raising no issues or specific amendments.

One respondent highlighted the need for appropriate information to be available in accessible formats to ensure that people can understand the new processes, including age appropriate information for children. This will be a matter for Police Scotland in implementing the new arrest and custody processes.

The modifications in the proposed regulations and the new arrest and custody processes should be regularly reviewed. This will be taken forward by Police Scotland following implementation.

That the distinction between criminal behaviour and non-criminal behaviour is appropriate.

One response suggested that the Scottish Government extend powers of arrest for civil matters, however, this is not a matter for these regulations.