Powers of the police in Scotland

The powers of the police in Scotland, as with all Scots criminal law, are heavily based on common law. There is no statutary equivalent to e.g. the general powers of arrest in England and Wales ^[1] but individual statutes might confer a power for specific offences where the general power of arrest might not otherwise be available. In consequence the general powers available to constables are found summarised in legal textbooks rather than statute.

Powers of Arrest

A power of arrest without a warrant exists if a person is committing an offence, has been accused by an apparently credible witness of committing an offence, is being pursued by others from the scene of a crime, is causing a public danger or is offending public decency.^[2] Additional powers attach to specific statutary offences. In common with other jurisdictions the power to arrest (in the strict sense of holding and/or detaining a person) an offender is not a privilege that cannot be exercised with care by the general public in less general circumstances. Section 13 of the Criminal Procedure (Scotland) Act 1995 defines the conditions under which suspects and potential witnesses can be temporarily detained and, if necessary, arrested.

Powers of Stop and search

Legislation providing for stop and search includes the Criminal Procedure (Scotland) Act 1995 and the Police, Public Order and Criminal Justice (Scotland) Act 2005.

In Scotland police officers can conduct consensual searches on persons without suspecting them of committing an offence or having prohibited items on them. The police can also stop and search without having a search warrant if they suspect someone of being in possession of any of the following:^[3]

• drugs
• an offensive weapon
• stolen property
• alcohol if you are at certain major football or rugby matches or on public transport travelling to such an event
• evidence in relation to an offence under the Protection of Wild Mammals (Scotland) Act 2002
• cash or the cash equivalent of £1,000 ^[4] or more and that this is the result of criminal activity

The police can only carry out a "pat down" the suspect is only required to remove outer clothing, for example a coat, in public. If suspect wishes a private search more invasive measures can be used. ^[5]

Power to Direct Traffic

The power to direct traffic (also available to traffic wardens but NOT parking attendants) exists under many road traffic laws, regulations and orders.

Power to Control Behaviour

This exists in various forms typically associated with prevention of highway obstruction, control of the safety of public assemblies and prevention of potential or perceived threats to others. There is no specific offence attached to merely disobeying a constable's lawful instruction but there are various offences attaching to the events causing such an instruction to be given; examples might include obstructing the highway or hindering a constable (or any person assisting him/her) in the execution of his duty.^[6]

References

See also

• Powers of the police in England and Wales