Thorley Stephenson, Edinburgh Law Firm

Thorley Stephenson SSC is an Edinburgh based law firm providing a wide range of legal services in family, child and criminal court cases throughout Scotland. Tel: 0131 556 9599
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Power of Arrest Changes Come into Force

Changes to the law governing the arrest and questioning of suspects came into effect on 25th January this year. 

The changes are contained in Part I of the Criminal Justice (Scotland) Act 2016, and are based on recommendations in the Carloway Review of Scottish Criminal Law and Practice.

The Scottish Government explains that the new measures will create new investigative tools for the police, with additional scope for post-charge questioning, as well as protecting key rights for suspects, including access to legal advice.

What are the Main Changes?

Looking at Part 1 of the Act in more detail, it will:

  • Abolish the separate concepts of arrest and detention, and replace them with a single statutory power of arrest without warrant where there are reasonable grounds for suspecting a person has committed an offence
  • Enable police to release a suspect for further investigation with conditions (for up to 28 days) with the power to re-arrest
  • Place a duty on police to take every precaution to ensure a person is not unnecessarily held in police custody and explicitly protects a person’s right to remain silent
  • Extend the rights of those held, giving them the right to speak to a solicitor, regardless of whether or not they are going to be interviewed
  • Enhance protections for under-18s and includes protections for 16 and 17-year-olds which balance the right to self-determination
  • Include a duty to safeguard and promote the wellbeing of a child as a primary consideration when deciding whether to arrest the child

Changes Welcomed by Police

"We welcome the new Act and the opportunities it presents to offer a better balance within our criminal justice system to deliver positive outcomes for victims, keeping people safe, while protecting the rights of those suspected or accused of crime,” said Assistant Chief Constable Wayne Mawson, Police Scotland. “Our officers and staff have taken part in specific training and are fully prepared for the new legislation."

Law Society Warns of Resource Implications

The Law Society of Scotland has reacted to the new provisions with caution.

“The new legislation means that any suspect detained at a police station has the right to access to a solicitor,” explained Ian Moir, convener of the Law Society of Scotland Legal Aid Committee. “While we accept the good intentions of the act in protecting a suspect's human rights and in particular some of our most vulnerable members of society, there are enormous resourcing implications.”

During the Scottish Government’s consultation over the changes, the Law Society had warned that the impact of the new measures could be significant. It estimated that more than 160,000 people were likely to be eligible to receive legal advice.

"During our discussions with the Scottish Government, we highlighted the likelihood of significant increases in the number of requests for a solicitor’s attendance and the implications of solicitors being expected to provide legal advice at police stations around the clock,” added Ian Moir. “The new procedures could have a particular impact on those solicitors with young children or with other caring responsibilities."

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If you have been arrested and need legal representation then contact our specialist criminal defence solicitors today.

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