Why is this important?
This information applies to Scotland only
Table of contents
Powers of stop, search and seizure
When can the police stop and search you
The police can stop and search you without having a search warrant if they suspect you of being in possession of:-
- drugs; and/or
- an offensive weapon; and/or
- stolen property; and/or
- alcohol if you are at certain major football or rugby matches or on public transport travelling to such an event when alcohol is not allowed; and/or
- evidence in relation to an offence under the Protection of Wild Mammals (Scotland) Act 2002; and/or
- cash or the cash equivalent of £1,000 or more and that this is the result of criminal activity
- fireworks that you intend to use anti-socially.
Before they stop and search you they must have reasonable grounds for suspecting that they will find one or more of the above. There are a few exceptions to this rule ,for example, if a serious violent incident has taken place, the police can stop and search you without having reasonable grounds for suspecting that they will find any of these things listed above.
The police can also stop and search you or your vehicle if they reasonably suspect you of terrorist activity. They can't stop and search you just for being in a particular area, unless they reasonably suspect you of terrorist activity.
In some circumstances a police officer of the rank of inspector or above can give the police permission to make stops and searches in an area for a certain amount of time - as long as this is for no more than 24 hours. When this permission is in force the police can search for offensive weapons or dangerous instruments whether or not they have grounds for suspecting that people are carrying these items. 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.
Proof of identity of plain clothes police officers
An officer who wants to stop you and search you does not have to be in a police uniform but if s/he is in plain clothes s/he must identify her/himself and show you documentary evidence of identity if you ask for it. 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.
The police cannot stop and search you because of who you are, for example, your race or religion, sexual orientation or gender. There is more information about discrimination and what to do about it.
If you agree to a search by the police
A police officer can search someone in the street if the person consents to the search. The police officer should always make it clear that consent is being asked for. Unless you agree, the search should not take place. Someone who has difficulty in understanding when asked for consent to a search, for example children and vulnerable people, may have their human rights breached. If you think that you or a family member has been searched in a way that it is a breach of human rights, you may want to challenge the treatment by the police. You can get specialist human rights help.
How should the search be conducted
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.
Stopping and searching vehicles
Police officers in uniform have the power to stop a motor vehicle on a road and ask the driver to produce:-
- a driving licence
- an insurance certificate
- a test certificate.
Tests for alcohol/drugs
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 you:-
- of having alcohol in your body; or
- of having used drugs; or
- have committed a moving traffic offence; or
- were the driver at the time of a road traffic accident.
A test for alcohol will normally be a breath test. A test for drugs would usually be a preliminary test of any impairment in your physical or cognitive ability.You could also be asked to give a 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.
Current limits for alcohol and options for further tests
Before 5 December 2014
The limit in relation to alcohol in the breath was 35 microgrammes of alcohol in 100ml of breath. The limit in relation to alcohol in the blood was 80 microgrammes per 100ml of blood.
If you had no more than 50 microgrammes in 100ml of breath you could choose to have the breath specimen replaced by a blood or urine specimen.
Although you could state a preference, the police officer would decide whether to take a blood or urine specimen. If there were medical reasons that meant the blood could not be taken, the specimen had to be urine.
This information may be helpful if you have an outstanding drink driving charge.
On or after 5 December 2014
The limit in relation to alcohol in the breath is 22 microgrammes of alcohol in 100ml of breath. The limit in relation to alcohol in the blood is 50 microgrammes per 100ml of blood.
If your breath contains no more than 31 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.
When can the police seize possessions from you in the street or your car
Once they have carried out a search, the police have the power to seize and retain anything that they consider to be relevant to an 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.
Confiscating alcohol and fireworks
The police 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.
The police can also confiscate fireworks that they think are going to be used for anti-social purposes.
When can the police move you on
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 you should expect to receive one.If you refuse to move you are likely to be charged with an offence.
When can the police stop and question you
A police officer can stop and question you in the street or any public place if you are suspected of either committing an offence or the officer believes that you have witnessed a possible offence.
Co-operation and providing personal information
If you are stopped and questioned, you are expected to be co-operative. If asked to do so, you must give your name, address, date and place of birth and nationality to the officer. If you give false information you are committing an offence.
If you refuse to provide your name, address, date and place of birth and nationality after you have been told by the police why they have stopped to question you this refusal is an offence you could be charged with.
If you refuse to provide your name, address, date and place of birth and nationality when you have witnessed an offence being committed you can be charged for refusing to provide this information.
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.
What the police may do next
Once you have given the police your name, address, date and place of birth and nationality, 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:-
- ask you to attend voluntarily at the police station to help with enquiries; or
- detain you for questioning for up to 24 hours; or
- arrest you for allegedly committing an offence.
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.
A police officer can give you an 'on the spot' fine (fixed penalty notice) for some types of antisocial behaviour.
For more information about the police and antisocial behaviour, see Antisocial behaviour.
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:-
- when in close pursuit of someone the police believe has committed, or attempted to commit, a serious crime; or
- to quell a disturbance; or
- if they hear cries for help or of distress; or
- to enforce an arrest warrant.
When can they enter and search premises
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 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 ensure a risk assessment is completed.
When can they seize property covered in the warrant and other goods
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.
What should happen if you are detained
How long can they hold you
The police have the power to detain you for questioning if they suspect you have committed an offence and if found guilty this would lead to a prison sentence.This outcome would be a measure of how serious the offence is.
If you are detained, the detention must end no later than 24 hours after it started, or earlier if there are no longer any grounds for suspicion or if you are arrested.
What can happen during a detention
The police must tell you why you have been detained. They must explain the general nature of the suspected crime and inform you that you do not need to answer any questions other than giving your name, address, date and place of birth and your nationality.
If you have been detained in police custody you must be provided with information (verbally or in writing) about your rights, for example, to access a solicitor. The police must record who has given you this information and the time that it was given. There are human rights considerations when you are interviewed by the police during detention. You also have the right to ask for and receive, free of charge, any documents that are held by the police that are essential to you effectively challenging your detention.
You cannot be detained more than once in connection with the same offence, or an offence which arises out of the same grounds.
Initial detention time limit and how it can extended
The initial detention period is 12 hours. During the initial 12 hour period, a police custody review officer can authorise an extension to 24 hours without having to get a court’s permission. You are entitled to have access to a solicitor immediately.
Detention usually takes place in a police station, but if you are handcuffed and questioned by the police outside a police station you may also be entitled to have access to a solicitor. This access may be a personal meeting or telephone contact.
During a detention you can be moved from the police station to any other place.
Powers to search, take photographs and take samples and fingerprints
While detained 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.
Warrant for intimate search
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.
Rights to have a solicitor and another person informed of your detention
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.
Rights of a vulnerable adult
If a person who has been detained 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.
Rights of a young person under 16
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.
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.Some of these rights are the same as apply if you have just been detained in a police station
When can the police arrest you
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:-
- in the act of committing a crime; or
- accused by an apparently credible witness of being seen committing a crime; or
- seen running away from the scene of a crime pursued by others; or
- threatening danger to the public; or
- causing an offence to public decency.
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.
What should happen on arrest
If you are arrested by the police you should be told what you are being arrested for and which law 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.
When will the police charge someone
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:-
- what crime the person is charged with; and
- when the crime was committed; and
- where the crime was committed.
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.
You must be cautioned once you have been charged
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.
Rights in police custody
If you are held in police custody following an arrest, the police must escort you before the sheriff or district court no later than the next day after the arrest, excluding weekends and public holidays. You must be provided with information (verbally or in writing) about your rights, for example, to access a solicitor.
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. The police must inform you of your rights (verbally or in writing) and must record who has given you the information and the time it was given. You also have the right to ask for and receive, free of charge, any documents that are held by the police that are essential to you effectively challenging your detention.
Right to interpretation and translation
If you are in police custody and you do not speak or understand English, or you have a speech or hearing impediment, you have a right to help with understanding the police proceedings. You may need an interpreter or a sign interpreter for example. The police must arrange this for you and it must be free of charge.
If you are in police custody and you do not understand English, you have a right to translations of essential documents, such as a document containing the charges against you. These translations must be provided within a reasonable time and they must be free of charge.
If the police decide that you don't need an interpreter or any translations of essential documents and you disagree, you can request a review of the police's decision. If you do get help but you think it took too long or was not of a good enough quality to allow you to understand the proceedings, you can make a complaint.
Prints and body samples
If you have been arrested, the police as a matter of routine usually take your fingerprints, palm prints and other impressions. The police also take a standard photograph 'a mug shot'. The police have the powers to do all of this. Other samples can also be taken using reasonable force if a police inspector provides permission:-
- body hair samples, other than pubic hair
- finger or toe-nail clippings or other material from the nail
- blood or other body tissue or fluid gained by swabbing or rubbing
- saliva that can be swabbed from the inside of the mouth.
Blood samples can also be taken as long as there is a warrant to do so.
If you are convicted, records of your prints and impressions will be retained on police files along with your criminal record. Otherwise, in most cases, records of your prints and impressions will be destroyed. However, records of your prints or impressions can be held for up to 2 years (3 in the case of certain violent and sexual offences) where you have accepted an alternative to prosecution in court, eg a fine or work order. Also, 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 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 generally has to be obtained to carry out an invasive search and a medical practitioner must carry this out. A 'strip search' can be authorised by a senior police officer, for example, to look for concealed drugs.
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, DNA details can be held for 2 years (3 in the case of certain violent and sexual offences) where you have accepted an alternative to prosecution in court, eg a fine or work order. Also, 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.
Making a complaint
There are different courses of action you can take if you feel the police have treated you unfairly and you want to complain:-
- use the police complaints procedure, which can result in an officer being disciplined, or in exceptional circumstances, prosecuted. This procedure cannot provide you with compensation
- sue the police for damages. You will need to use a solicitor to do this
- claim compensation from the Criminal Injuries Compensation Authority
- ask for help from an MP, MSP or local councillor
- contact the Procurator Fiscal if you think the police officer has broken the law
- take collective action by joining or starting a campaign to monitor and change police practices.
If the police have discriminated against you on racial or religious grounds, for example, by not investigating a complaint properly, you may be able to take action about discrimination because of race or religion under the Equality Act 2010.
For more information about how to use the police complaints procedure and for information about what you can do if you are unhappy with the way that the police force have dealt with a complaint you have made, see the Police Investigations and Review Commissioner’s Complaints Commissioner for Scotland's website at www.pirc.scotland.gov.uk.
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 - where to get advice.
The police cannot discriminate against any person because of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. For example, if a police officer treats you less favourably because of your race, fails to treat a reported crime seriously because of your gender or sexual orientation, or where the conditions in police custody create unnecessary difficulties for you if you have a disability.
If you have been discriminated against you should complain to the police or police authority at www.scotland.police. You may need to get legal advice.
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 - where to get advice.
The police are a public authority and must respect your human rights when they carry out their duties. If you want to challenge action by the police using human rights law, you can get specialist human rights help.