Criminal Justice (Scotland) Act 2016

41 Social work involvement in relation to under 18s

(1) Intimation of the fact that a person is in police custody and the place where the person is in custody must be sent to a local authority as soon as reasonably practicable if—

(a) a constable believes that the person may be subject to a supervision order, or

(b) by virtue of subsection (5)(c) of section 38, a constable has delayed sending intimation in respect of the person under subsection (1) of that section.

(2) A local authority sent intimation under subsection (1) may arrange for someone to visit the person in custody if—

(a) the person is subject to a supervision order, or

(b) the local authority—

(i) believes the person to be under 16 years of age, and

(ii) has grounds to believe that its arranging someone to visit the person would best safeguard and promote the person’s wellbeing (having regard to the effect of subsection (4)(a)).

(3) Before undertaking to arrange someone to visit the person in custody under subsection (2), the local authority must be satisfied that anyone it arranges to visit the person in custody will be able to make the visit within a reasonable time.

(4) Where a local authority arranges for someone to visit the person in custody under subsection (2)—

(a) sections 38 and 40 cease to have effect, and

(b) the person who the local authority has arranged to visit the person in custody must be permitted access to the person in custody.

(5) In exceptional circumstances, access under subsection (4)(b) may be refused or restricted so far as the refusal or restriction is necessary—

(a) in the interests of—

(i) the investigation or prevention of crime, or

(ii) the apprehension of offenders, or

(b) for the wellbeing of the person in custody.

(6) A decision to refuse or restrict access to a person in custody under subsection (4)(b) may be taken only by a constable who—

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

(b) has not been involved in the investigation in connection with which the person is in custody.

(7) Where a local authority sent intimation under subsection (1) confirms that the person in custody is—

(a) over 16 years of age, and

(b) subject to a supervision order,

sections 38 to 40 are to be applied in respect of the person as if a constable believes the person to be under 16 years of age.

(8) Subsection (9) applies where a local authority might have arranged for someone to visit a person in custody under subsection (2) but—

(a) chose not to do so, or

(b) was precluded from doing so by subsection (3).

(9) The local authority may—

(a) advise a constable that the person to whom intimation is to be sent by virtue of section 38(3) should not be sent intimation if the local authority has grounds to believe that sending intimation to that person may be detrimental to the wellbeing of the person in custody, and

(b) give advice as to who might be an appropriate person to a constable considering that matter under section 39(7) (and the constable must have regard to any such advice).

(10) In this section, “supervision order” means compulsory supervision order, or interim compulsory supervision order, made under the Children’s Hearings (Scotland) Act 2011.