Hey everybody, Mark Dawes here. And in this short video I want to talk to you about the power of arrest in Scotland.
And I’m going to say right up front that virtually all the information in this video has been kindly given to me by Colin Dixon. He is hugely experienced in his field and Colin wrote to me because he saw the video I put out about the difference between arresting someone and detaining someone, which of course there is no difference.
And Colin very kindly sent me this email, and you can read the email for yourself here, but you can see that he’s got a lot of experience in this. His grandfather was a superintendent in the Hong Kong Police from 1945 to 1970. His father was in the RAF and Civilian Police, and Colin himself was an RAF Provost and been 30 years in civilian Police role with obviously a role of the tutor as well.
He studied English law, English criminal law, and he’s had over 40 years now operating in Scotland. And it’s really interesting because it says in the email here, there was some issues here around a probationary officer who didn’t listen, and the case went to courts and that triggered changes in Scot’s law with regards to procedures on detention. So Colin very, very kindly sent me a whole load of information, and I’ve put it together in this video. I’ve had to edit some of it down, obviously for time with regards to video, but the bulk of the information is here. Let me start off by looking at what the powers of arrest in Scotland actually are. And fundamentally they’re derived from common law and statute law. An arrest in Scotland can be made with a warrant and without a warrant and it’s normally made with the intention of charging a person with an offence and bringing him before a court.
These two methods of taking a person into custody were noted by Lord Carloway in the Carloway Review as being a peculiar, if not unique feature, of modern Scots criminal procedure. The Carloway Review, on arrest and detention in Scotland, has actually brought about some changes. And on the 25th of January 2018 the distinction between arrest and detention in Scots law is to be removed when the Criminal Justice (Scotland) Act 2106 comes into force. And what that means is, is the power to detain a suspect will be substituted with a power to arrest on suspicion of an offence being committed, and remember the key word there is suspect. And if you want to get a little bit more clarity on that then go back to the previous video that I did. But let’s firstly look at the common law power of arrest in Scotland. The common law power of arrest can only be used for serious common law crimes and effected only when:
a) You are the victim of a serious common law crime yourself, or
b) You are the eye-witness to a serious common law crime.
Or you received the following:
Reliable information from a credible eyewitness as to the identity of a person who has committed a serious common law crime, and the key word there is serious. And if we look at Citizens Advice (Scotland), which talks about citizens arrest in Scotland, it says a private citizen has certain common law powers of arrest, but these should be exercised with great care as wrongful arrests can result in a claim for damages by the person arrested. It goes on to say, that the crime for which someone might make a citizens arrest would have to be more serious than a breach of the peace for the actions to be viewed as reasonable. And the person making the arrest would have to be sure that a crime had actually been committed, for example, by witnessing it or being the victim.
So What Constitutes a Serious Common Law Crime in Scottish Law?
So what constitutes a serious common law crime in Scottish law? Well, let’s have a look at that now. Here they are. There is abduction, assault, breach of the peace, fraud, theft, robbery, malicious mischief, and wilful fireraising.
And these are the only ones that you can arrest for because these are the only ones that are classed as serious common law crimes. And I’m going to go through each one of them now very, very briefly and quite quickly because, obviously, time is limited on the video. Abduction, definition: to deliberately detain somebody against that person’s will without lawful authority. It can be done for any purpose.
Essential of the crime is, deliberately depriving the victim of their personal freedom. A stranger does not have the right to do that to anyone else. What happens must have been against the victim’s wishes. It is not essential to use physical force, it can include threats, inducement, intimidation, fraud, or coercion. And I think I’ve covered some of that on the previous video I did. And it must be clear to the accused, or the perpetrator that the victim was not consenting. An example of this is here: A man wrongfully arrested by a police officer on a wholly spurious charge of breach of the peace was held to be criminally abducted. And there’s the case law reference there for you to go and have a look at that and research that one yourself.
Okay, let’s look at assault. Assault is referred to in Scottish law as either, common or simple, or serious. Both are defined as a deliberate physical attack on another person with intent to cause harm. What does that mean with regards to the law in relation to self-defence in Scotland? There is no specific definition of self-defence in Scottish law, and there are three identifiable specifics required when lodging a special defence in law for self-defence. And these are, one, a means to escape violence to be utilised if available. Two, using force on the aggressor to protect another person from violence and harm. And three, to protect yourself from serious injury and harm. So if you use force to assault another person, and you claim the special defence of self-defence, these are the three limitations under which that defence can be raised.
It’s called justifiable assault, that’s the primary name for it in Scottish law and it says the assault may be justified if it is shown to be done under the authority of the law, or in self-defence, and the minimum amount of force is used. I know some of you will come back to me on the minimum issue, but that’s the Scottish law principle. Breach of the peace, definition: conduct severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. And what is required is conduct which does present as genuinely alarming and disturbing, or its context to any reasonable, ordinary person. So there’s your definition of breach of the peace which is classified as a serious crime in Scotland, which you can arrest under common law for.
Theft, definition: the dishonest, felonious, appropriation taking of another person’s property without the consent of the owner or custodier with the intention to deprive the owner or custodier. Essentials to prove are one, the property must belong to somebody else. Two, it is taken or appropriated. Three, control or possession of the property is with the thief. Four, it is without the consent of the owner or the custodier.
Fraud, definition: fraud involves the making of a dishonest and false pretence to bring about some definite results.
Robbery, definition: robbery is the simultaneousness criminal acts of theft and assault. So basically if you add theft and assault together you’ve got robbery, and to prove that robbery had been committed there must have been an intent to use force, in other words an assault, and there must also have been an intent to deprive the owner or custodier of their property.
Malicious mischief, definition: the destruction or damage of the property of another, or interfering of the property to the detriment of the ownership of that property. It can be further defined as the intentional or reckless destruction of, or damage to the property of another, whether by destroying crops, killing or injuring animals, or knocking down walls or fences. Points to note with this, the state of mind of the accused is essential to prove the crime, as there must be an intent to cause damage and a knowledge that the destructive conduct has a complete disregard for, or indifference to the property or the ownership.
Wilful fireraising, definition: the intentional setting fire to corporeal (bodily or physical material), property owned by another without their consent. Acts of wilful fireraising in Scotland are not vandalism, this is more serious than vandalism. And it is sufficient if the property has been burnt to any degree, no matter how small, provide the fire had taken effect. Point to note with regard to this, fireraising which is merely accidental does not demonstrate the necessary mens-rea and is not a crime, and can not become so on account of subsequent behaviour on part of the person concerned. And there’s a case reference that Colin has very kindly provided for us.
Statutory Law with the Power to Arrest in Scotland
Now let’s look at the Statutory Law with the power to arrest in Scotland. This falls under Section 59(3) of the Civic Government (Scotland) Act 1982, which states:
“The owner, tenant, or occupier of any property in, upon, or in respect of, which an offence to which this section applies is being committed, or any person authorised by him, may apprehend any person who the owner or, as the case may be, the tenant, occupier, or authorised person finds committing that offence and detain the apprehended person until he can be delivered into the custody of a constable.”
So what this means is, is that the owner, or the occupier, or tenant of any property, if they find someone there committing an offence, they can detain them, apprehend them, and deliver them into the custody of a constable. Now the offences that they are referring to here are: Section 50(1) Drunk and Incapable and Section 57(1) Suspect Person/Theft.
To summarise, there are no citizen’s power of arrest in Scotland in relation to the non-serious crimes of common/simple assault, breach of the peace, drugs, urinating, litter, smoking, weapons, vandalism and trespass. However, there are citizen’s powers of arrest in Scotland in relation to the serious crimes of abduction, assault, breach of the peace, fraud, theft, robbery, malicious mischief and wilful fireraising.
Well there you go everyone. Thank you ever so much for watching, but once again, Colin thank you ever so much for allowing us access to all of your information. It’s absolutely outstanding. You are very generous and kind person. We couldn’t have made this video without you. So for those of you watching this video, this is the guy you really need to thank for this. And I know how valuable your information is Colin, because we’ve been researching this for years to come up with information on Scottish Law and it’s not easy. So it is very, very much appreciated, thank you ever so much.
For the rest of you, if you have any questions whatsoever, then as per normal, leave a comment below if you’re watching this on YouTube, or again, a comment below if you’re watching this on Facebook, or drop me an email. And if you are watching this on YouTube then please subscribe to our channel. And if you’re watching this on Facebook then please like our page and share the video. There is a real gap in information on this out there in the Internet. I’ve been researching Scottish Law for years and I’ve never come up with anything as comprehensive as what Colin has given us to allow me to make this video. So please share this video with as many people as you think would benefit from Colin’s knowledge, which we turned into this video here. Thanks ever so much and I look forward to speaking to you all soon.