Society highlights resource needs as minister hails new arrest law

The new law of arrest came into force in Scotland today (25 January), with questions still unresolved over the resources to support extended rights to legal advice for people held at police stations.

Part 1 of the Criminal Justice (Scotland) Act 2016, which derives from recommendations in the Carloway review in 2011, abolishes the separate concepts of arrest and detention, replacing them with a single statutory power of arrest without warrant where there are reasonable grounds for suspecting a person has committed an offence.

Police are entitled to hold a suspect for up to 12 hours without charge, but can release and re-arrest them provided they are not held for more than 12 hours in total over a 28 day period. 

To safeguard those arrested, there is a duty on police to take every precaution to ensure a person is not unnecessarily held in police custody and explicit protection for a person’s right to remain silent. They also have the right to speak to a solicitor, whether or not they are going to be interviewed. There are additional protections for those under 18, and vulnerable adults.

Cabinet Secretary for Justice Michael Matheson described the new provisions as "some of the most significant changes to police procedures in Scotland for at least a generation". He added: "The new framework strikes a balance between strengthening the powers available to police, while protecting the rights of the accused."

While Mr Matheson predicted a smooth transition to the new procedures, many solicitors have decided to opt out of the police station advice scheme, fearing a big increase in callouts at a time when low legal aid rates leave them unable to afford support with their datime work. The Law Society of Scotland has said that the impact on solicitors' working practices was likely to be substantial.

Ian Moir, convener of the Society's Legal Aid Committee, commented: "While we accept the good intentions of the Act in protecting a suspect's human rights and in particular some of our most vulnerable members of society, there are enormous resourcing implications.

"During our discussions with the Scottish Government, we highlighted the likelihood of significant increases in the number of requests for a solicitor’s attendance and the implications of solicitors being expected to provide legal advice at police stations around the clock. The new procedures could have a particular impact on those solicitors with young children or with other caring responsibilities."

The Law Society claims that while legal aid rates have been increased for this work, and were "a modest improvement" on the Scottish Government’s initial proposal, they remain inadequate.

Mr Moir said: "The proposed rates of legal aid fall well short of what we consider to be fair and reasonable. Individual solicitors and their firms have to make a decision on whether to take part in the revised police station scheme and throughout our discussions we highlighted to Scottish ministers that there was a risk of solicitors choosing to opt out of the scheme.

"We are meeting with the Government in the near future and hope to find a constructive way forward."

The Scottish Legal Aid Board insists that there is no obligation on solicitors to respond to requests for advice and that where they cannot, publicly employed solicitors, or other private solicitors on the duty rota, will be available to cover. However in many areas the entire private defence bar has voted not to take part in the scheme.