03-05.1 Arrest_44973ade91556b9cefa51b4b8e4fbf02.pdf

OFFICIAL Unit 3 Lesson 5.1...

OFFICIAL Unit 3 Lesson 5.1 Arrest Lesson Aim: The learner will be able to arrest a suspect or accused person Learning Outcomes: On successful completion of the lesson, Introduction students will be able to:- To arrest a person, is to lawfully take away their liberty. 1. Explain the underlying concept of the "Presumption of Liberty" under the Criminal Justice (Scotland) Act 2016 and the specific Section 1 of the Criminal Justice Scotland Act duty under Section 50 (not to detain 2016 states:- unnecessarily or unreasonably) “A Constable may arrest a person without a 2. Explain the advantages and the procedures warrant if the Constable has reasonable for making an arrest grounds for suspecting that the person has committed or is committing an offence.” 3. Recognise the difference between the status of “Officially Accused” and “ Not Officially It has been held that a person is under arrest Accused” when they are no longer free to go about their business and they have been informed that 4. Describe the station arrest authorisation and they are under arrest. review process While Section 1 of the Act provides the power of arrest, there is no legal definition of an arrest. Therefore, if challenged, a court would 5. Explain the 12-hour investigatory arrest have to decide whether individual clock circumstances constituted an arrest. 6. Explain the procedure regarding voluntary Note:- While Section 1 is the most commonly attendance at a Police Station used power of arrest, some legislation may carry its own arrest power e.g. a warrant. (See Appendix B) 7. Identify the offences covered under Police and Fire Reform (Scotland) Act 2012 (Sections 90 and 91) 1 th Amended 24 April 2024 v.7 OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest What are ‘Reasonable Grounds?’ Whilst there is no definitive explanation of what reasonable grounds are, there has to be some basis for our suspicions not merely a speculative endeavour. This could be someone acting suspiciously or in response to a “tip off” in the form of information or intelligence. Stated cases can help us demonstrate “reasonable grounds” as follows; Fox, Campbell and Hartley v UK (1990) - The European Court of Human Rights has defined 'reasonable suspicion' as arising from "facts or information which would satisfy an objective observer that the person concerned may have committed the offence" Houston v Carnegie 1999 - the existence of reasonable grounds requires to be addressed on an objective basis. Presumption of Liberty Section 50 of the Criminal Justice Scotland Act 2016 states:- “A Constable must take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody.” This legislation is a statutory obligation on police. This means that someone’s liberty will only be taken away where it is necessary and will only be for as long as required. Compliance with Section 50 will be the responsibility of all involved from the arresting and enquiry officers to the custody officer. 2 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Human Rights HR Any police action which deprives a person of their right to liberty under Article 5 of ECHR must always be:- Proportionate Legal Accountable Necessary Ethical When to Arrest The Lord Advocate has given police guidance on where justification to arrest and remove a person’s liberty may be available. These are purely a guide as to when you may exercise your Section 1 arrest power:- Refusing to desist, to prevent continued offending and escalation of a situation Abode (not fixed) to ensure attendance at court for someone with no fixed abode (e.g. appearing from custody) Interest of public safety and/or the safety of the offender Satisfaction of name and address - officer cannot verify name and/or address provided Evident intention to abscond + Interview Note witness statements/further enquiry Get samples In some circumstances where a person has or is suspected of committing an offence, it may not always be necessary to arrest that person and thus, take away their liberty. For example, a minor offence such as urinating in public (Section 47 Civic Government (Scotland) Act 1982). 3 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest De-Arrest The Act allows for a person to be immediately liberated prior to arrival at a custody centre where it is confirmed that there are no longer reasonable grounds to suspect that the person has committed the offence under investigation. (Section 4(2)). Where this happens, the rationale for the person being eliminated from suspicion should be fully documented in the officer’s notebook/ mobile device, along with the time the person was released from custody. It should be stressed that such occasions will be very infrequent and only as a result of unforeseen and significant changes in circumstances. Advantages of Arrest Irrespective of an arrested person’s status, (Officially or Not Officially Accused) you have the following advantages available to assist you in your investigation or arrest of the person:- S Search P Photograph I Identification Parade N Non-invasive Samples F Fingerprints/Palm Prints R Restraint and Control E Examination of Injuries D Dental Impressions and other Invasive Samples Search You must search a person as soon as practical after their arrest. This allows you to find articles that could cause injury, to seize evidence and to confirm the arrested person’s identity. In appropriate cases this will include strip-searching an accused (authorisation required). Photograph Once a person is arrested you may photograph that person 4 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Identification Parade You can place an arrested person in an identification parade Non-Invasive Samples Section 18(6) Criminal Procedure (Scotland) Act 1995 applies to persons who have been arrested. A sample of saliva from inside of the mouth (Can be obtained by a PC or PCSO, without the need for any authorisation) A sample of hair or other material from an external part of the body (other than pubic hair) by means of cutting, combing or plucking (authorisation from Inspector or above required) A sample of nail (finger or toe nail) or scraping from underneath such a nail (authorisation from Inspector or above required) A sample of blood, body fluid, or of body tissue or other material obtained from an external part of the body by means of swabbing or rubbing (authorisation from Inspector or above required) Fingerprints/Palm Prints A Constable may take from the person, or require the person to provide fingerprints, palm prints and/or any other print or impression of an external part of the body Restraint and Control A Constable may use restraint and control to prevent an arrested person from disposing of evidence or communicating with others who might dispose of evidence for them Note:- It is your responsibility to ensure that an arrested person does not escape. In this regard it is important that you supervise your arrested person at all times Examination of Injuries You can visually examine the arrested person to ascertain whether there are any injuries or other marks that may prove useful to the case 5 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Dental Impressions and other Invasive Samples Dental impressions and other invasive samples like an intravenous blood sample, internal examinations, endoscopic or colonoscopic examinations can be obtained from an arrested person if they give their consent. If consent is given this must be recorded in your notebook/ mobile device and corroborated. If an arrested person refuses to give consent, a warrant would be required to obtain these types of samples. Destruction of Samples As soon as a decision is taken not to initiate criminal proceedings or if proceedings conclude and the accused is not convicted, all samples taken from the person and any relevant physical data shall be destroyed as soon as possible. If a person is convicted samples and relevant physical data collected in relation to the matter investigated are retained. Retention of DNA Samples The Police, Public Order and Criminal Justice (Scotland) Act 2006 provides police with the power to retain DNA samples taken from persons accused of certain sexual or violent offences, listed within Section 19A of the Criminal Procedure (Scotland) Act 1995 (See Legal Database for full list) even if the person is not convicted of the crime or offence. These samples may be retained for up to three years. The police may, on application, retain these samples beyond this period if necessary. Information Provided Upon Arrest Irrespective of an arrested person’s status (Officially or Not Officially Accused), when formally making an arrest, the arresting officer should read from their Aide Memoire as soon as reasonably practicable as per section 3 of the Criminal Justice (Scotland) Act 2016:- 6 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Inform the person that they are under arrest Nature of the Offence Reason for the arrest Administer the common law caution Note any replies Solicitor - Intimation and Access Inform "I am arresting you under Section 1 of the Criminal Justice (Scotland) Act 2016 for…” Nature of Offence Inform the officially/not officially accused of the general nature of the offence for which the person is arrested. “…assault” Reason “The reason for your arrest is that I suspect that you have committed an offence and I believe that keeping you in custody is necessary and proportionate for the purposes of bringing you before a court or otherwise dealing with you in accordance with the law. Do you understand?" (Note replies) Administer Caution “You are not obliged to say anything but anything you do say will be noted and may be used in evidence. Do you understand?" Note Replies Note any replies made verbatim (word for word). "I require you to give me your name, date of birth, place of birth, nationality and address. 7 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Solicitor - Intimation and Access “You have the right to have a solicitor informed of your arrest and to have access to a solicitor. These rights will be explained to you further at a Police Station." Note:- You may not be able to complete this procedure, for example where the arrested person is violent. In that case, you should inform the person that they are arrested and caution them at common law. Once the person is compliant, the arrest procedure should be completed as soon as reasonably practicable. If you are not in uniform when making an arrest and the arrested person asks to see your identification, you should identify yourself and show your warrant card as soon as reasonably practicable. Information to be Recorded by Police Irrespective of the status of arrest the following information MUST be recorded by the arresting Police Officer within a Police issued notebook/mobile device (Examples in Appendix C and D) A. Time and place of arrest B. General nature of the offence for which the person is arrested C. Reason for the arrest D. Time at which and by whom the person was advised of the information to be given on arrest. E. Name, date of birth, place of birth, nationality and address of arrested person F. Any further reply by arrested person G. Where transported following arrest by Police, time & place of departure and time & place of arrival H. If released from custody before arrival at Police Station, the details of the liberating officer and the release rationale (Section 6 (2)(1)) 8 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Activity 1 A1 Working in pairs, practice reading Section 1 Arrest procedures aloud from your aide memoire. There is no formal feedback for this activity. Officially Accused A person is ‘Officially Accused’ when they have been arrested under the powers provided by Section 1 of the Act and where sufficient, admissible evidence exists and the subject has been cautioned and charged. For the arrest of an Officially Accused person you would need to justify that person’s arrest and thus the removal of their liberty (The mnemonic RAISE+ING will assist you in your decision making). Note:- In some domestic abuse and solemn cases the need to interview despite there being a sufficiency of evidence may be justified to allow a person suspected of a serious crime opportunity to explain their actions. As such they should be arrested ‘Not Officially Accused’. 9 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Scenario S Police Constables McLaren and Fleming are on foot patrol passing The Vault public house, Main Street, Brookbank (locus). Police Constables McLaren and Fleming then observe a male outside the locus who begins shouting, swearing and making threats to assault both officers. Officers engage with the male warning him regarding his behaviour; however, he fails to desist and becomes more aggressive continuing his threats of violence. Police Constable McLaren in the presence of Police Constable Fleming then arrests the male using the Section 1 CJ(S)A 2016 power of arrest for committing the offence contrary to Section 38 Criminal Justice and Licencing (Scotland) Act 2010 (Threatening or Abusive Behaviour, which will be covered in a future lesson). Police Constable McLaren, uses his arrest aide memoir to complete the arrest. Police Constable McLaren, in the presence of Police Constable Fleming, then cautions and charges the male with the offence to which the male makes no reply. Police Constable McLaren then notes all required information within his police issue notebook/ mobile device. Police then convey the male to Brookbank Police Station, advising the Duty Sergeant of the offence for which he has been arrested, the time he was arrested, cautioned and charged and the reason for his arrest being his failure to desist. The Duty Sergeant then processes the male as an Officially Accused person. 10 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Activity 2 A2 Discuss the officially accused example in relation to the incident dealt with by PC McLaren and PC Fleming. Do officers have reasonable grounds to suspect a crime has occurred? What evidence was available? What justification was available to arrest the subject? Do the officers have sufficiency of evidence to Charge? Not Officially Accused A person is ‘Not Officially Accused’ when they have been arrested under the powers provided by Section 1 of the Act but they have not been cautioned and charged i.e. there is not a sufficiency of evidence at that time to prefer a charge and further enquiry is required. Additionally, there are many circumstances when officers are not able to caution and charge someone immediately. Examples include but are not limited to:- When they remain a suspect to allow enquiries to continue, or A person’s level of intoxication through drink or drugs, or Interpreter or Appropriate Adult required, or Level of violence, or Mental health issue, or They are a younger child (under 16 years of age or under 18 and subject of compulsory measures of supervision) A person arrested ‘Not Officially Accused’ will require to have their arrest authorised in a formal process at the custody centre. 11 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Feedback 2 F2 1. Reasonable Grounds? Yes/ Disorder Offence 2. Evidence available Two credible eye witnesses (Police Officers) 3. Justification to arrest? Yes, failed to desist 4. Sufficiency of evidence to charge? Yes, as the two officers present witnessed the behaviour. Multiple offences committed by a suspect Where a person is suspected of committing more than one offence as part of the same incident, and you do not have sufficient evidence for all offences, you would not charge them, or move the suspect’s status to ‘Officially Accused’ if you still wish to interview the person in relation to any of the offences. Once an accused’s status has moved to ‘Officially Accused’ we can no longer conduct an interview in relation to any of the offence(s) as part of that incident. (The only exception to this would involve serious offences, which had come to light after the charges had been libelled). For example, a person commits a theft and an assault as part of a course of conduct, where you have sufficient evidence for the theft but wish to interview them in relation to the assault. You would arrest them as ‘Not officially accused’, and wait to charge them with the theft until you have interviewed them for the assault, at which point you might charge them for both offences if you now have sufficiency for the assault. Note:- There is no rush to move to a ‘Officially Accused’ status at the locus, so long as this is done before you process the person at the custody suite (see Prisoner rights, Care and Welfare notes). Remember, once a suspect has been charged we can no longer interview them about the crime(s) that have been committed. It is important to make sure are happy with the evidence for all of the charges you want to libel. 12 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Not Officially Accused Arrest Authorisation and Review Process Section 7 Criminal Justice (Scotland) Act 2016 A person arrested under Section 1, Not Officially Accused, requires formal authorisation for the arrest (Section 7). Legislation confirms this needs to be given as soon as possible at the custody centre by a Sergeant not connected to the case, usually a custody Sergeant. Authorisation can only be provided when there are reasonable grounds for suspecting that the person has committed an offence and keeping the person in custody is necessary and proportionate. This is the first key safeguard to ensure that the police meet their obligations to ensure that a person is not unreasonably or unnecessarily held in police custody (Section 50 obligation). The custody Sergeant will make their decision with consideration of the following:- Is the person’s presence reasonably required to enable the offence to be investigated fully? If the person is liberated would they be likely to interfere with witnesses, or evidence, or otherwise obstruct the course of justice? The nature and seriousness of the offence. If authorisation is refused by the Sergeant, then the person can only continue to be held in custody if they are charged with the offence, thus making them Officially Accused. The 12-Hour Investigatory Clock A person arrested with the status of Not Officially Accused (NOA) can be held without charge for up to 12 hours. 13 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest The 12-hour investigatory arrest clock commences at the time the arrest is formally authorised by the custody Sergeant. After 6 hours the circumstances require to be reviewed by an Inspector not connected to the enquiry. The Inspector will re-visit the original grounds for the arrest authorisation and consider this along with how the enquiry has progressed since then. They then have to make a decision as to whether or not it continues to be necessary and proportionate to hold the arrested person in custody. If continued arrest is not authorised, the person must be either charged or released. Key Features One of the key features of Section 1 Criminal Justice (Scotland) Act 2016, power of arrest, is the functionality to arrest a person as a Not Officially Accused more than once in respect of the same offence. Officers have the option to release a suspect without charge, re-arrest the person at a later date if additional further evidence becomes available and/or further questioning is required. This can only be done if the cumulative arrest times, without charge and does not exceed 12 hours. This gives the police flexibility when carrying out their enquiries. Custody officers must also be informed that the prisoner has been re-arrested to ensure the correct investigatory clock is resumed. As the investigatory clock doesn’t begin until the custody Sergeant authorises the arrest, any time spent conveying an arrested person to the custody centre and waiting to be booked in is not included in the 12-hour investigatory period. Additionally, the 12-hour clock is paused if an arrested person requires to be conveyed to hospital for treatment while in custody. Furthermore, any detention time taken by statutory powers prior to arrest, for the purposes of a search (e.g. Section 23 Misuse Drugs Act 1971 and Section 60 Civic Government (Scotland) Act 1982) is not deducted from any subsequent arrest time under Section 1 Criminal Justice (Scotland) Act 2016. 14 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest 12-Hour Extension In exceptional circumstances a person’s arrest period without charge may be extended to a maximum of 24 hours. Any decision to extend the arrest period must be made by a suitable authorisation officer:- If the arrested person is 18 years of age or older, their arrest extension is authorised by an Inspector or above not connected to the enquiry. If the arrested person is 17 years of age or younger, their arrest extension would be authorised by a Chief Inspector or above, not connected to the enquiry. If the 12-hour extension period has been entered the option to release and re-arrest will no longer be available. Not Officially Accused Example Police Constables McLaren and Fleming are on mobile patrol passing The Vault public house, Main Street, Brookbank (Locus). Police officers McLaren and Fleming observe a male outside the locus who is lying on the ground with facial injuries and blood coming from his nose. Constables provide first aid and request an ambulance, whilst remaining aware of evidential considerations. On speaking with the injured male, he provides his name as William Quinn. William informs police that he was repeatedly punched about the head by a male who he identifies and names as Peter Moran. William further provides police with a description of Peter Moran. Police Constable McLaren broadcasts this description to fellow colleagues on patrol and local CCTV operators. An ambulance arrives and the injured male is conveyed to hospital. During this time, a CCTV operator informs Police Constables McLaren and Fleming that they have a male on camera, nearby to the locus who matches the description of the male Peter Moran. The CCTV operator directs the police to this male’s location. Police Constables McLaren and Fleming trace the male matching the description, they stop and engage with him. He identifies himself to police as Peter Moran. PCs McLaren and Fleming observe Peter to match the description given by the 15 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest victim, breathing heavily, in close proximity to the locus and is observed to have small specks of blood over his clothing. Police Constable McLaren in the presence of Police Constable Fleming arrests the male using the Section 1 CJ(S) Act 2016 power of arrest, suspected of committing the offence of Assault, utilising his police issue arrest aide memoire to complete the arrest. Police Constable McLaren informs the male that the reason for his arrest is for the further investigation by interview and evidence gathering. The male is placed within the rear of the police vehicle and conveyed to Brookbank Police Station. On arrival at Brookbank Police Station, Police Constable McLaren informs Custody Sergeant Park (PS Park) of the circumstances of the incident and arrest of the suspect. The Sergeant is informed that the male is arrested but not yet charged and his arrest is to allow police opportunity to gather witness statements, seize clothing, check nearby CCTV and carry out an interview of the suspect. PS Park begins the section 7 authorisation process, confirming the suspects arrest is reasonable and necessary to allow police to carry out their enquiries. PS Park authorises the arrest and the 12 hour investigatory clock begins. The suspect is fully processed, provided his rights as an arrested person, searched and then placed within a cell. Activity 3 A3 Discuss the Not Officially Accused example regards the incident dealt with by PC McLaren and PC Fleming. Do officers have reasonable grounds to suspect a crime has occurred? What evidence was available? What justification was available to arrest the subject? Do the officers have sufficiency of evidence to Charge? What options could be used. 16 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Conveyance to Police Station Where a person is arrested by a Constable out with a Police Station, a Constable must take the person as quickly as is reasonably practicable to a Police Station. This however does not apply to situations where a person arrested under a warrant or an enactment which requires that person to be taken to a particular place (other than a Police Station) following their arrest, and the taking of the person to that place would be unnecessarily delayed by taking the person to a Police Station first. The Act allows for a person to be immediately liberated prior to arrival at a custody centre where it is confirmed that there are no longer reasonable grounds to suspect that the person has committed the offence under investigation. When Does an Arrest Cease? A person is no longer under arrest when:- the grounds for arrest no longer exist, i.e. they have been released without charge; having been issued a Fixed Penalty; for summons or on "undertaking", or a court decides that they should be released following their appearance at court; or they are imprisoned following conviction. (A convicted prisoner is not an arrested person.) In the same way that a person being arrested must be in no doubt of their status, you must make clear to a person being liberated that arrest has ceased and they are now free to go about their business. 17 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Feedback 3 F3 1. Reasonable Grounds? Yes/Assault 2. Evidence available Male on the ground with facial injuries. male repeatedly punched about the head by a male Suspect identified and names as Peter Moran Description of Peter Moran given by victim CCTV locates a male nearby to the locus who matches the description of the male Peter Moran Police Constables McLaren and Fleming trace the male matching the description Male matches the description given by the victim, the male is breathing heavily, in close proximity to the locus and is observed to have small specks of blood over his clothing. 3. Justification to arrest? Yes, to allow further enquiry 4. Sufficiency of evidence to Charge? Although there appears to be sufficient circumstantial evidence at this stage to charge Officers would endeavour to gain further evidence to substantiate this from areas such as Interview of suspect, further CCTV, independent witnesses, a possible examination of the suspect’s hands, clothing and Swabs of the blood for DNA also any injuries on the suspects hand could be observed. An option in this instance could be to release the suspect on Investigative Liberation or pending further enquiry to allow further enquiries at this stage. Allowing an option to arrest or report at a later stage. 18 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Voluntary Attendance There may be occasions where a suspect attends a Police Station voluntarily and wishes to give information regarding a crime or offence. There is a set procedure in place for this which must be followed on every occasion. Police Scotland Declaration of Voluntary Attendance at a Police Station Form (Appendix A) should be completed and signed by suspects who attend a Police Station voluntarily. This completed form must be lodged for any further court proceedings. Voluntary attendees may choose to leave the Police Station at any time. Furthermore, should they refuse to sign the voluntary attendance form, the person will not be processed as a voluntary attendee and may be asked to leave the Police Station. However, should a sufficiency of evidence exist at that time, option remains to arrest that person using powers under Section 1 of the Act. If a child attends the Police Station on a voluntary basis this should be in the presence of a suitable parent or guardian (i.e. poses no risk to the child and not connected with the incident). This parent or guardian will be asked to sign the voluntary attendance form and the child will also be given the opportunity to sign the form. If they do not sign the form then they will be asked to leave the office and the voluntary attendance will cease. Those attending on a voluntary basis will be given the same rights as those persons arrested (see the lesson note on Prisoner Rights Care and Welfare). Police and Fire Reform (Scotland) Act 2012 During your duties you may come across people who assault or impede police during their duties or those who remove or assist in the escape of a person in police custody. Legislation is in place under the Police and Fire Reform (Scotland) Act 2012 to deal with persons who carry out any of these actions. Please be aware that other legislation may still contain a power of arrest and officers should be mindful of this. List of relevant powers in contained within Appendix B. 19 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Section 90 Police and Fire Reform (Scotland) Act 2012 It is an offence for a person to:- Assault Resist Obstruct or Hinder a Constable or member of police staff, acting in that capacity or a person assisting Constables or members of police staff acting in that capacity. Section 91 Police and Fire Reform (Scotland) Act 2012 It is an offence for a person to:- Remove a person from custody or Assist the escape of a person in Custody “Person in Custody” refers to anyone:- who is in the lawful custody of a Constable or Police Custody and Security Officer (PCSO) or any person assisting a Constable or any such officer in the execution of his duty; or who is in the act of eluding or escaping from such custody, whether or not the person has actually been arrested. 20 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Appendix A 21 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Appendix B Exemptions in relation to arresting utilising Section 1. Terrorism Act: Arrests made under the Terrorism Act are unaffected by the Criminal Justice Act and should continue to be made under Terrorism Act. Warrant: These are arrests made under judicial warrant (it's the warrant granting the power of arrest not Section 1 of the Act). Road Traffic Act 1988 Sections 6D and 7(5A): This is the power of arrest relating to either failing or refusing a roadside breath test. Prisons (Scotland) Act 1989, Section 40: This is the power of arrest given to Police officers enabling them to arrest and return people who are unlawfully at large to prison. This includes absconders from home leave, those recalled from Home Detention Curfew (HDC) or Licence (Parole). Protection from Abuse (Scotland) Act 2001, Section 4(1): This is the power of arrest attached to interdicts and can only be executed if said power has been attached to the relevant interdict. Extradition Act 2003, Section 5: This relates to powers to arrest those who are to be extradited where a warrant does not exist but you believe one will be granted. Adult Support and Protection (Scotland) Act 2007, Section 28: This relates to cases where a person breaches or is likely to continue breaching a banning order. The power of arrest comes from the banning order itself. 22 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Criminal Procedure (Scotland) Act 1995, Section 19(6) or 19AA(12): This relates to cases where specific offenders can be arrested in order to obtain fingerprints/DNA from them where they have failed to comply with a requirement to provide them. Criminal Procedure (Scotland) Act 1995, Section 28(1): This relates to cases where a person is breaching or likely to breach bail conditions in order to secure their attendance at court to review their bail conditions. For example, a male has bail conditions to remain within his home address, within Hamilton, between 7pm and 7am. He is stopped by Police in Aberdeen at 6pm. At this time the male has not actually committed an offence, however, he will be unable to return to Hamilton within 1 hour so can be arrested as it is likely he will breach his bail conditions. Criminal Justice (Scotland) Act 2016, Section 28(4): This is similar to the example above, but applies to Police Undertakings. Officers can arrest in order to put a person before court for the original matter or to review their undertaking conditions. 23 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Appendix C - Not Officially Accused Notebook Example NE RESTRICTED T12345 Theft of bike on Brookbank High Street Arrest of Ross Smith as per aide memoire Section 1 CJSA 2016 Not officially accused 1527 Ross Smith (M) 27/01/1990 @ Stirling (30), White Scottish 86 Brookbank Avenue , Brookbank, BB4 4DS 079658967456, Unemployed [email protected] A (1527hrs 18/11/20) Brookbank High Street B Theft – bike form outside Jacks Café C To allow further enquiry D 1528hrs Section 3 rights/Street E Ross Smith 27/01/90 as above F Cautioned at Common law No reply G 1535hrs taken to Brookbank Police Station 1550hrs Arrived Brookbank Police Station H N/A Into custody NOT Officially Accused PNC - Not wanted , Not missing , Known 1 x theft Shoplifting ‘18 ,No warning markers RESTRICTED 18 24 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Appendix D - Officially Accused Notebook Example NE RESTRICTED T12345 1527 Ross Smith 27/01/1990@stirling (30)(M)(White Scottish) 86 Brookbank Avenue, Brookbank BB7 4DS Unemployed - State benefits A 1527hrs 18/11/20 @ Brookbank High street B Theft of a bike - Outside Jacks Café C To allow further enquiry - traced at scene D 1529 hrs informed of access to solicitor E Ross Smith 27/01/90@ Stirling AS ABOVE F No Reply to arrest G Placed within vehicle – not taken into custody Released at locus H Released at locus by PC Stevenson - reported For Summons - No pending theft one previous for theft PNC - Not wanted , not missing , no no warning markers. Charged at locus - 1610 On 18/11/20 at Brookbank High St, Brookbank, you Ross Smith did steal a bike Intimated understood – Made no reply RESTRICTED 18 25 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest For further information, use the resources shown below:- Legal Database:- Police Powers and Duties - Criminal Justice (Scotland) Act 2016 Review: You can explain the underlying concept of the “Presumption of liberty under the Criminal Justice (Scotland) Act 2016 and the specific duty under section 50 (Not to detain unnecessarily or unreasonable) You can explain the advantages and procedures for making an arrest You can recognise the difference between the status of “Officially Accused” and “Not Officially Accused” You can describe the station arrest authorisation and review process You can explain the 12-hour investigatory arrest clock You can explain the procedure regarding voluntary attendance at a Police Station You can identify the offences covered under Police and Fire Reform (Scotland) Act 2012 (section 90 and 91) 26 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 27 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 5.1 Arrest 28 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL