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Criminal Justice (Scotland) Act 2016

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This is the original version (as it was originally enacted).

Rights of suspects

31Information to be given before interview

(1)Subsection (2) applies to a person who—

(a)is in police custody, or

(b)is attending at a police station or other place voluntarily for the purpose of being interviewed by a constable.

(2)Not more than one hour before a constable interviews the person about an offence which the constable has reasonable grounds to suspect the person of committing, the person must be informed—

(a)of the general nature of that offence,

(b)that the person is under no obligation to say anything other than to give the information specified in section 34(4),

(c)about the right under section 32 to have a solicitor present during the interview, and

(d)if the person is in police custody, about any right which the person has under Chapter 5.

(3)A person need not be informed under subsection (2)(d) about a right to have intimation sent under either of the following sections if the person has exercised the right already—

(a)section 38,

(b)section 43.

(4)For the purpose of subsection (2), a constable is not to be regarded as interviewing a person about an offence merely by asking the person for the information specified in section 34(4).

(5)Where a person is to be interviewed by virtue of authorisation granted under section 35, before the interview begins the person must be informed of what was specified by the court under subsection (6) of that section.

32Right to have solicitor present

(1)Subsections (2) and (3) apply to a person who—

(a)is in police custody, or

(b)is attending at a police station or other place voluntarily for the purpose of being interviewed by a constable.

(2)The person has the right to have a solicitor present while being interviewed by a constable about an offence which the constable has reasonable grounds to suspect the person of committing.

(3)Accordingly—

(a)unless the person consents to being interviewed without having a solicitor present, a constable must not begin to interview the person about the offence until the person’s solicitor is present, and

(b)the person’s solicitor must not be denied access to the person at any time while a constable is interviewing the person about the offence.

(4)Despite subsection (3)(a) a constable may, in exceptional circumstances, proceed to interview the person without a solicitor being present if it is necessary to interview the person without delay in the interests of—

(a)the investigation or the prevention of crime, or

(b)the apprehension of offenders.

(5)A decision to allow the person to be interviewed without a solicitor present by virtue of subsection (4) may be taken only by a constable who—

(a)is of the rank of sergeant or above, and

(b)has not been involved in investigating the offence about which the person is to be interviewed.

(6)For the purposes of subsections (2) and (3), a constable is not to be regarded as interviewing a person about an offence merely by asking the person for the information specified in section 34(4).

(7)Where a person consents to being interviewed without having a solicitor present, there must be recorded—

(a)the time at which the person consented, and

(b)any reason given by the person at that time for waiving the right to have a solicitor present.

33Consent to interview without solicitor

(1)Subsections (2) and (3) apply for the purpose of section 32(3)(a).

(2)A person may not consent to being interviewed without having a solicitor present if—

(a)the person is under 16 years of age

(b)the person is 16 or 17 years of age and subject to a compulsory supervision order, or an interim compulsory supervision order, made under the Children’s Hearings (Scotland) Act 2011, or

(c)the person is 16 years of age or over and, owing to mental disorder, appears to a constable to be unable to—

(i)understand sufficiently what is happening, or

(ii)communicate effectively with the police.

(3)A person to whom this subsection applies (referred to in subsection (5) as “person A”) may consent to being interviewed without having a solicitor present only with the agreement of a relevant person.

(4)Subsection (3) applies to a person who is—

(a)16 or 17 years of age, and

(b)not precluded by subsection (2)(b) or (c) from consenting to being interviewed without having a solicitor present.

(5)For the purpose of subsection (3), “a relevant person” means—

(a)if person A is in police custody, any person who is entitled to access to person A by virtue of section 40(2),

(b)if person A is not in police custody, a person who is—

(i)at least 18 years of age, and

(ii)reasonably named by person A.

(6)In subsection (2)(c)—

(a)“mental disorder” has the meaning given by section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003,

(b)the reference to the police is to any—

(i)constable, or

(ii)person appointed as a member of police staff under section 26(1) of the Police and Fire Reform (Scotland) Act 2012.

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