In January this year, new measures contained within the Criminal Justice (Scotland) Act 2016 came into force in Scotland relating to the arrest and questioning of suspects.

The new measures are based on recommendations made by Lord Carloway following his Review of Scottish Law and Practice. The Review had been requested in 2010 by Kenny MacAskill, who was Justice Secretary at that time, following the UK Supreme Court’s decision to uphold an appeal by Peter Cadder, which ruled that police could not question a suspect without offering him or her access to a solicitor first.

Lord Carloway published the results of his review in November 2011, in which he recommended a series of reforms that he said would allow for the development of a criminal justice system that starts from a simplified, unitary system of arrest, on reasonable grounds for suspicion, and detention.

Following on from these recommendations, measures incorporated into Part 1 of the Criminal Justice Act 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

“The new framework strikes a balance between strengthening the powers available to police, while protecting the rights of the accused,” commented Cabinet Secretary for Justice, Michael Matheson. 

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