3. Arrests which do not relate to criminal offences
Why are these regulations needed?
3.1. Regulations are required to ensure the enhanced rights brought in through the CJ(S)A also apply to people arrested other than on suspicion of an offence, but with appropriate modifications. Minor modifications are required to ensure these arrests fit within the new arrest and custody system introduced by the CJ(S)A, but otherwise the draft regulations propose no change to the way these arrests are dealt with currently by the police and courts.
3.2 If regulations are not produced then the rights a person is entitled to whilst in police custody would be derived both from Part 1 of the CJ(S)A and the specific statutes detailed below. Some of the provisions in Part 1 of the CJ(S)A assume the arrested person is suspected of a criminal offence. Some of the rights in the Acts listed below in paragraph 3.5 do not take account of new safeguards provided under Part 1.
3.3 There are also rules about bringing people before the courts after they have been arrested, which are set out in the legislation listed below in paragraph 3.5. Many of the provisions within Part 1 will also apply and some tailoring will need to be done to Part 1 to accommodate these special types of arrest and adjust how the original legislation interacts with Part 1. This will ensure that there is as much consistency of approach as possible when bringing a person before the courts and protecting their rights within police custody before they get there.
Which arrests will be affected by the regulations?
3.4 The police can arrest people who are not suspected of criminal offences when a power of arrest is attached by a court to a protective interdict or other court order. The power of arrest allows the police to arrest a person who breaches an interdict or court order even though this is a civil law matter.
3.5 A court can attach a power of arrest to protective interdicts or court orders granted under the following legislation:
Adult Support and Protection (Scotland) Act 2007
This allows the court to attach a power of arrest to a banning order or temporary banning order. These orders are designed to protect the rights of adults at risk of harm and can:
- prohibit the subject from being in a specific place or area,
- prohibit the subject from removing property from a specified area, and
- impose other such measures in order to protect the property of the adult at risk of harm.
Children (Scotland) Act 1995
This allows the court to attach a power of arrest to an order excluding a person from a child's family home (an 'exclusion order').
Protection from Abuse (Scotland) Act 2001
This allows the court to attach a power of arrest to interdicts granted to protect individuals from abuse.
Matrimonial Homes (Family Protection)(Scotland) Act 1981
This section enabled the court to attach a power of arrest to interdicts granted to protect individuals from abuse by their spouse. This section of the 1981 Act has been repealed and replaced by powers in the Protection from Abuse (Scotland) Act 2001. This means that no new powers of arrest can be created under this section, however interdicts previously granted under this Act remain valid and enforceable. 
Civil Partnership Act 2004
This section enabled the court to attach a power of arrest to interdicts granted to protect individuals from abuse by their civil partners. This section of the 2004 Act has been repealed. This means that no new powers of arrest can be created under this section. however interdicts previously granted under this 2004 Act remain valid and enforceable. It is not thought that any interdicts/powers of arrest made under this section are in existence.
3.6 The summary below sets out how the proposed regulations will amend part 1 of the CJ(S)A for arrest for breach of protective interdict/court order with further explanation following.
Chapter 1 – Arrest by Police (sections 3 to 6)
3.7 Chapter 1 of the CJ(S)A makes provision about the information an arrested person must be given upon arrest and on arrival at a police station. When a suspect for a criminal offence is arrested they are informed of the offence for which they have been arrested, but there is no criminal offence involved when a person is arrested for breach of interdict.
3.8 A modification is proposed to so that a person would only be told about the nature of the offence they have been arrested for if indeed they had been arrested for a criminal offence. The police will still be under a duty to provide the other information contained within section 3. This includes the requirement for the person to be told that they are under arrest and the reason they have been arrested. The other information that a person is told on arrest will remain the same as for those arrested for criminal offences such as their rights regarding solicitor intimation and access under sections 43 and 44 of the CJ(S)A.
Chapter 2 – Custody: Person not officially accused (sections 7 to 19)
3.9 Chapter 2 of the CJ(S)A contains stringent tests that must be applied to decide whether it is necessary and proportionate to keep a suspect in police custody whilst a criminal offence is being investigated. When someone is arrested on other grounds, there is no on-going criminal investigation and none of the tests contained within Part 1 should apply. This is because the person is in police custody for the purposes of appearing before a court to answer for the alleged breach of interdict or other court order.
3.10 A modification to section 7 of the CJ(S)A is proposed to clarify that none of the tests contained within chapter 2 will apply to arrests which do not relate to criminal offences.
Chapter 3 – Custody: Person officially accused (sections 20 to 30)
3.11 Chapter 3 of the CJ(S)A provides mechanisms for either putting someone before the courts or liberating them once they have been charged with an offence. Each of the Acts listed in paragraph 3.5 have bespoke mechanisms which allow for arrested persons to be put before the courts. A modification is proposed to allow these existing mechanisms to still apply.
3.12 Modifications are also proposed in relation to under 18s arrested under powers attached to protective interdicts and orders. The protective interdicts and orders listed above do not have the additional protections contained in the CJ(S)A in place for those under 18. These additional protections will ensure:
- appropriate information about the arrest of under 18s is included in notices to parents and local authorities under sections 23 and 24 of the CJ(S)A.
- Minor modifications of the provisions in sections 22 to 24 CJ(S)A will ensure that their wording extends to non-offence arrests of young people.
Chapter 4 - Police Interview (sections 31 to 37)
3.13 Chapter 4 of the CJ(S)A contains provisions relating to the rights of suspects before and during a police interview. People who are arrested under powers which do not relate to criminal offences do not require a police interview unless the police are also investigating criminal matters.
3.14 The rights in chapter 4 only apply when a person is to be interviewed so there is no need to disapply it in the regulations.
3.15 There are often other criminal matters that are alleged by complainers in addition to the breach of interdict or order. For example in many domestic abuse cases there are also allegations of stalking (section 39 Criminal Justice and Licensing (Scotland) Act 2010), breach of the peace and on some occasions assault. In these instances the criminal offence would take precedence over the non-criminal interdict or order and the whole of Part 1 would apply to the criminal arrest. A police interview could be required in these situations depending on the evidence available and in that case the rights in Chapter 4 would apply.
Chapter 5 – Rights of suspects in police custody (sections 38 to 44)
3.16 Chapter 5 of the CJ(S)A deals with the rights of a person whilst in police custody. These are rights given to all people arrested regardless of whether the arrest relates to a criminal offence. They include the right to have intimation of a person's arrest given to another person and also to a solicitor. Chapter 5 also contains specific intimation, access rights and duties for the police in relation to children.
3.17 The Acts listed above listed in paragraph 3.5 also set out rights for people arrested under powers attached to interdicts and court orders. It is necessary to clarify whether these rights or the Part 1 rights should apply. The Part 1 rights are enhanced versions of the same rights. For example Part 1 includes enhanced rights for persons under 18 and new access rights whilst they are in police custody. There are also special provisions for under 18's in relation to intimation and consultation rights to solicitors  . Whilst it cannot be excluded it is anticipated that limited examples of children being arrested on these grounds will be rare.
3.18 Amendments are proposed to ensure that the rights in Chapter 5 will replace the rights set out in the individual Acts listed above. This will allow for a consistent approach to be taken by the police when persons are being given their rights at the police station.
Chapter 6 – Police powers and duties (sections 45 to 53)
3.19 Chapter 6 deals with the general powers and duties of the police when carrying out their functions in relation to arrest. It includes duties to ensure that people are not detained unnecessarily and duties in relation to the wellbeing of children whilst in police custody. It is considered that these duties should apply when arresting people otherwise than in relation to criminal offences. No amendments are required to achieve this.
Chapter 7 – General (sections 54 to 64)
3.20 Chapter 7 deals with various topics including the regulatory powers contained within section 60 of the CJ(S)A to modify and dis-apply Part 1 to accommodate non-offending arrests.
3.21 Section 64 which deals with police custody will require to be modified in light of the proposed regulations. A modification will allow for a person to be deamed released from police custody when they are released to an establishment where an enactment entitles them to be taken such as a prison.
Question 1 - 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?
Question 2 - If yes, do you believe that the modifications outlined above are appropriate?
Question 3 - 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?