This information applies to Scotland only
The police can stop and search you without having a search warrant if they suspect you of being in possession of:-
Before they stop and search you they must have reasonable grounds for suspecting that they will find these things.
In these situations, an officer does not have to be in uniform but if s/he is in plain clothes s/he must identify her/himself and provide documentary evidence of identity if asked to do so. In the above situations, the police should not require you to take off any clothing other than outer coat, jacket or gloves and the police cannot carry out an intimate search, for example, an internal body search, without having a warrant to do so.
An officer with the rank of assistant chief constable or above can give permission for searches of people or vehicles to take place in order to prevent acts of terrorism.
When the police have not arrested you but want to carry out a search this should be in as private a place as possible.
The search should be carried out by a member of the same sex and outwith the view of members of the opposite sex.
The police do not have the power to take fingerprints, palm prints or body samples, such as a blood sample, unless you have been arrested and detained.
Police officers in uniform have the power to stop a motor vehicle on a road and ask the driver to produce:-
A police officer can require you to supply a specimen of breath for a breath test or undergo other tests if you have been driving, attempting to drive or have been in charge of a motor vehicle and they suspect:-
A test for alcohol would normally be a breath test. A test for drugs would usually be a preliminary impairment test or sweat or saliva swab. It is an offence to fail to provide a specimen of breath, sweat or saliva or undergo a test in these circumstances without reasonable excuse.
The limit in relation to alcohol in the breath is currently 35 microgrammes of alcohol in 100ml of breath. If your breath contains no more than 50 microgrammes of alcohol in 100ml of breath, you have the option to have the breath specimen replaced by a blood or urine specimen. You must be informed of your right to exercise this option. If you are not told about it, any conviction from your original breath test will be unsafe.
Although you can state a preference, the police officer will decide whether to take a blood or urine specimen. If there are medical reasons that mean that blood cannot be taken, the specimen must be urine.
Once they have carried out a search, the police have the power to seize and retain anything that they consider to be relevant to the offence. The police can seize cash of £1,000 or more if they suspect that it could be the result of the proceeds of crime.
The police also have the power to confiscate alcohol from people under 18 who are drinking it in a public place. They can also confiscate alcohol from people aged 18 or over if it is suspected that the alcohol has been consumed or is intended for consumption by people under 18. They can also confiscate fireworks that they think are going to be used for anti-social purposes.
The police have the power to move you on if they believe that you are obstructing the lawful passage of any other person in any public places or if you (either individually or as part of a group) are conducting yourself in a riotous or disorderly manner anywhere, to the alarm, annoyance or disturbance of the public.
If you have been asked to move on, you are entitled to ask for a reason and should expect to receive one but if you refuse to move you are likely to be charged with an offence.
A police officer can stop and question you in the street or a park or other outside place if s/he suspects you of committing an offence or believes that you have witnessed a possible offence.
If you are stopped and questioned, you are expected to be co-operative. You must give your name and address to the officer if asked for it. If you don’t, this is an offence and you could be arrested.
If the police suspect you of committing an offence they may ask you for an explanation of your behaviour. You have the right to refuse to give an explanation.
Once you have given the police your name and address it is up to them to decide whether they want to ask more questions. If they don’t then you should be allowed to go. If they do want to ask you more questions and they suspect you of having committed a crime they can:-
If the police suspect you of being a witness to a crime they can invite you to attend the police station to help with enquiries but you are not obliged to do so and cannot be detained at the police station.
If you have been questioned by the police, either as a suspect or a witness, the police should make clear before you are released or leave the police station what further action, if any, will be taken, for example, whether you have been charged and will be reported to the Procurator Fiscal or whether you have been eliminated from the enquiry.
In general the police do not have the right to enter a person’s house or other private premises without their permission. However, they can enter without a warrant:-
In general, the police don’t have the power to search premises without a warrant unless they have obtained the permission of the person concerned, or unless a delay in obtaining a warrant would be likely to defeat the ends of justice, for example, that evidence will be destroyed or removed.
A search warrant authorises the police to enter premises on one occasion only. If the police have a search warrant they can, if necessary, use reasonable force to enter and search the premises. The householder or occupier of the premises is responsible for any repairs that are needed as a result of the police forcing entry. However, if the police search an address in error, the police should be asked to repair any damage they cause.
As well as getting a warrant to enter and search because of suspected crime, a warrant can be issued to enter premises to check if the occupant is at risk because of mental illness. A warrant can also be issued to enter the home of a sex offender to do a risk assessment.
If the police have used a search warrant to search premises or a vehicle and they have found articles covered by the warrant, they have the power to seize them and take them into safe custody, for example, to a police station. The articles are held there as possible evidence in any criminal proceedings which the Procurator Fiscal may decide to start.
Where a warrant is granted to search for specific items of stolen property, the police have the power to seize other items not referred to in the warrant if they show the suspect may have been involved in another crime.
If the police have seized certain articles after a search, you have no right to make the police return the articles and there is no time limit on how long the police can hold them. If you want to enquire about retrieving articles from the police you should write to the Chief Constable to establish if the property is to be used in evidence. If the property is to be used as evidence, the Procurator Fiscal is responsible for its disposal and the Fiscal will deal with enquiries concerning the property.
You may be able to take legal action to get a court order for the article(s) to be returned but this would be a complex process, for which legal advice would be needed.
The police have the power to detain you for questioning if they suspect you have committed an imprisonable offence.
If you are detained, the detention must end no later than 6 hours after it started, or earlier if there are no longer any grounds for suspicion or if you are arrested.
The police must tell you why you have been detained, the general nature of the suspected crime and inform you that you do not need to answer any questions other than giving your name and address.
During a detention you can be moved from the police station to any other place. The police also have the power to search you, take fingerprints, palm prints and other impressions and, where necessary, use reasonable force to ensure you comply with these requirements. The police can also take photographs. If either an intimate (strip) search or invasive internal search is required, there are rules governing each of these searches and a special warrant is required.
If you have been detained by the police, you have the right to have a solicitor and one other person informed of your detention and whereabouts. You do not have the right to make a telephone call personally, the police will do this for you. The police must do this without delay unless there is a good reason not to, for example, that it might lead to the destruction of evidence or the warning of accomplices. There is no fixed time limit but any delay should be no longer than is necessary to investigate or prevent the crime or apprehend offenders.
If a young person under 16 is detained by the police, the police should tell their parents or guardians as soon as possible and may allow a parent or guardian access to the young person at the police station. The police can refuse access if there is a suspicion that the parent or guardian is involved in the crime or offence or if it is in the interests of the child to delay access.
You cannot be detained more than once in connection with the same offence, or an offence which arises out of the same grounds.
Arrest is the first step in the proceedings for bringing someone to trial for an offence and means that you can be held in police custody.
The police can arrest you if they have a valid arrest warrant. A warrant will state the grounds for arrest. They also have a power to arrest you without a warrant if you are:-
A police officer also has the power to arrest you without a warrant under a range of statutes, for example, the Misuse of Drugs Act 1971 and the Prevention of Terrorism Act 2000.
If you are arrested by the police you should be told what you are being arrested for and which statute applies at the time of the arrest. However, if the circumstances make this impossible, the police should inform you of the reason as soon as reasonably practicable. An arrest is not necessarily unlawful because no reason was given at the time of your arrest.
The police will charge a person when they have enough evidence to prove that they have committed an offence. The charge is a statement which says:-
If you are charged, the police must caution you that you do not need to say anything in answer to the charge but that you have the opportunity to reply. Any reply that you make will be noted and may be used in evidence.
If the offence is not a serious one and the police have no reason to doubt that you are normally a law abiding person, you may be charged but not detained any further. Later you may receive a citation from the Procurator Fiscal to appear in court and, for some offences, may be offered the opportunity to plead guilty by letter.
In other, more serious cases, the police may decide to hold you in custody, in a police cell, after arresting and charging you with an offence.
If you are held in police custody following an arrest, the police must bring you before the sheriff or district court no later than the next day after the arrest, excluding weekends and public holidays.
Once you have been charged with an offence, you are not obliged to say anything to the police and have the right to remain silent if you wish. If you do make any kind of statement this will be noted and may be used in evidence.
If you have been arrested and held in a police station, you have the right to have a solicitor and one other person informed of your arrest, without delay. You don’t have the right to make the telephone call personally, the police will do this for you. An arrested person may choose a solicitor or they can use a duty solicitor and they have the right to a private interview with their solicitor before being brought to court.
If you have been arrested, the police have the power to take your fingerprints, palm prints and other impressions. The police can also take photographs. Other samples can also be taken using reasonable force if a police inspector provides permission:-
Blood samples can also be taken as long as there is a warrant to do so.
If you have been arrested with the authority of a warrant, the police will have the power to undertake an intimate body search, which means a strip search but not an invasive search, which involves an internal examination. A special warrant has to be obtained to carry out an invasive search and a medical practitioner must carry this out.
If you have been detained or arrested, the police have the power to carry out a DNA test. If you are convicted, your DNA details will be held permanently on the National DNA Database. If you are subsequently acquitted or if criminal proceedings are dropped, your DNA details will be destroyed. However, in the case of certain violent and sexual offences, the police have the power to keep your DNA information for up to 3 years, even if you are acquitted by the court or if the case is dropped. The police can also apply for an extension, to enable them to retain the DNA information for further periods of up to 2 years at a time.
If you have been arrested, the police have the power to make you take part in an identification parade. However, there are certain safeguards for the conduct of identification parades, for example, you have the right to have a solicitor present and the other people in the parade should look broadly similar to you in terms of gender, age, height, dress and general appearance.
If a young person under 16 is arrested, the police must inform the parents or guardian without delay and allow them access to the child at the police station. Access may be refused if delay in giving the access is necessary due to suspicion that the parent or guardian is involved in the crime or offence or it is in the interests of the well being of the child.
If a person who has been detained or arrested is vulnerable due to mental illness, a learning disability or suffers from acquired brain damage or dementia, a scheme called the appropriate adult scheme should be running in the area to assist the person. The scheme should provide a specially trained person to assist the vulnerable adult to ensure that s/he is not disadvantaged during the interview with the police.
If you are unhappy with any aspect of police behaviour, or think that the police have acted out with their powers or failed to observe correct procedures, then you can make an official complaint.
There are different courses of action you can take if you feel the police have treated you unfairly and you want to complain:-
See Complaints against the police for more information about how to use the police complaints procedure.
See A guide to the role of the Police Complaints Commissioner for Scotland for information about what you can do if you are unhappy with the way that a police force has dealt with a complaint you have made.
If you want to make a complaint you should get further advice from a solicitor. You could also get advice from an experienced adviser, for example, a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
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