Arrest, Detention and Sentencing: What Happens in Rights

Information on the process of being arrested, charged, and sentenced and what your rights are in Scotland. 

Arrest & Charge

If you are arrested, you can be held in police custody. However, the police can only arrest you if:

  • they have a valid arrest warrant
  • you are in the process of committing a crime, or
  • a credible witness claims they have seen you committing a crime

When you are arrested, you must be told why you are being arrested, however, if this is not possible, the police have to tell you as soon as is 'reasonably practicable'.

You will be charged when the police have enough evidence to prove that you have committed a crime – the charge will state the crime, when and where it was committed.

When you are arrested, the police must state that you don't have to say anything but if you do it will be noted and can be used as evidence. The police are not allowed to question you unless you have a solicitor or legal representation present.

In more serious cases, you may be held in custody. You will later hear from the Procurator Fiscal if you need to appear in court. 

Arrest

If the crime you are supposed to have committed is more serious you may be arrested on suspicion by the police.

Under new legislation you can be arrested more than once for the same offence if you have not been charged with this offence. This allows for more enquiries to be carried out where you can be re-arrested and either interviewed or charged, all actions must be ‘necessary and proportionate’.

You can only be held in custody beyond 12 hours and not charged if it is for an indictiable offence and an application been granted to extend this.

During arrest, there are certain things that the police have to tell you, including:

  • why you have been arrested 
  • a general indication of the suspected crime 
  • letting you know that you only have to give your name and address
  • Telling you your rights of access to a solicitor

However, there is no requirement for you to answer any other questions. 

The police are allowed to:

  • search you
  • take photos or fingerprints and
  • can move you from a police station to another place. 

A special warrant is required for an invasive or intimate search.

Right to Solicitor

If you are aged 16/17 years old you can consent to being interviewed without a solicitor present but only in agreement with a ‘relevant’ person.

Aged 16/17 and under a supervision order? You can only waive the right to a solicitor being present during interview with the agreement of your ‘named contact’

Aged under 16 you cannot consent to being interviewed without a solicitor.

A person may be arrested for the same offence on more than one occasion

Sentencing

If you have been found guilty by the court, the Judge will pass sentence. The Judge will take into account a variety of factors such as:

  • your age
  • whether you have a criminal record
  • background information and reports such as social enquiry reports or medical reports
  • the crime itself

There are lots of different possible sentences depending on the seriousness of your crime, including:

  • time in prison
  • a fine
  • Community Service Order

If you have been sentenced to a prison term, and your sentence is less than four years, you will be released automatically after serving half of your sentence (this does not apply to sex offenders – they will be released on licence and can be returned to custody at any time until the end of their sentence). 

If your sentence is more than four years, you will be considered by the parole board after you have served half of your sentence.

If you are granted parole, you will be released on licence.

If you are not granted parole, you will be released on licence after you have served two-thirds of your sentence. There may be a further parole hearing, and anyone released on licence can be returned to prison at any stage during until the end of your sentence. 

The procedures for life sentences have changed recently – to find out more, visit the Citizens Advice Bureau's Advice Guide website which also gives more detailed information on shorter sentences.

Detention

If the crime you are supposed to have committed is more serious you may be detained by the police.

When detained, you cannot be questioned by the police unless you have legal representation present and you cannot be detained for any more than twelve hours without being arrested - though in special circumstances they can apply to detain you for a further 12 hours.

If after twelve hours the police no longer have grounds of suspicion they must release you. 

During detention, there are certain things that the police have to tell you, including:

  • why you have been detained 
  • a general indication of the suspected crime 
  • letting you know that you only have to give your name and address

However, there is no requirement for you to answer any other questions. 

The police are allowed to:

  • search you
  • take photos or fingerprints and
  • can move you from a police station to another place. 

A special warrant is required for an invasive or intimate search.

You are entitled to tell a solicitor and one other person about your detention and whereabouts – the police will make the phone call for you, and will be required to do so without delay unless there is a good reason for them not to do so.

Sentencing

If you have been found guilty by the court, the Judge will pass sentence. The Judge will take into account a variety of factors such as:

  • your age
  • whether you have a criminal record
  • background information and reports such as social enquiry reports or medical reports
  • the crime itself

There are lots of different possible sentences depending on the seriousness of your crime, including:

  • time in prison
  • a fine
  • Community Service Order

If you have been sentenced to a prison term, and your sentence is less than four years, you will be released automatically after serving half of your sentence (this does not apply to sex offenders – they will be released on licence and can be returned to custody at any time until the end of their sentence). 

If your sentence is more than four years, you will be considered by the parole board after you have served half of your sentence.

If you are granted parole, you will be released on licence.

If you are not granted parole, you will be released on licence after you have served two-thirds of your sentence. There may be a further parole hearing, and anyone released on licence can be returned to prison at any stage during until the end of your sentence. 

The procedures for life sentences have changed recently – to find out more, visit the Citizens Advice Bureau's Advice Guide website which also gives more detailed information on shorter sentences.