Criminal Justice (Scotland) Act 2016

32 Right 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.