Arrest, Detention and Sentencing: What Happens in Rights

Information on the process of being charged, detained and sentenced after arrest 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.

You may not be detained further if you have been charged, however 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. 

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.

Call the Young Scot LawLine

Need 24/7 legal advice?
Find out more on rights and issues affecting 11-25 year old's including debt, welfare, housing, employment, mental health and relationships.
Call free on 0808 801 0 801.