Citizens Powers of Arrest in Scotland

Citizens Powers of Arrest in Scotland


Hey everybody, Mark Dawes here and if this
short video I wanna talk to you about the power of arrest in Scotland, and I’m
gonna say right up front that virtually all the information in this video has been
kindly given to me by Colin Dockson huge, hugely experienced in this 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 you know 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, you know 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 spent 30 years in civilian police role with
obviously a role as a 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 he says in the email here you know that there were some
issues here about a probationary officer who didn’t listen and the case went to court
and that triggered changes in Scots law with regard 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 the video, but the bulk of the information is here. So let
me start off by looking at what the powers arrest in Scotland actually are,
and fundamentally they’re derived from common law and statute law and arrests
in Scotland can be made with a warrant or without a warrant, and it’s normally
made with the intention of charging a person with an offense and bringing him
before a court. Now these two methods of taking a person in custody were noted by
Lord Carloway in the Caloway Review “as been a peculiar if not unique
feature of modern Scots Criminal procedure”.
Now the Calloway 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 2016 comes into force
And what that means is the power to detain a suspect will be substituted
with a power to arrest on suspicion of an offense being committed, okay. And
remember the key word there is suspect and if you want to get a 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. Now the common law
power of arrest can only be used for serious common law crimes and affected
only when a you are the victim of a serious common law crime yourself, or you
are the eyewitness 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 committed a serious common law crime, and a key word there is
serious. And if we look at a Citizens Advice Scotland which talks about
citizen’s 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 citizen’s arrest
would have to be more serious than a breach of the peace for the actions to
be viewed as a 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. 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 willful fire raising, 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. So 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 victims wishes, it is not essential to use
physical force. It can include threats, inducement,
intimidation, fraud, or coercion, and I think I cover some of that on the
previous video I did, and it must be clear to the accused or perpetrator that
the victim was not consenting. Now 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 for reference there
for you to go and have a look at that and research that one yourself. Ok let’s
look at assault now. Assault is referred to a 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.” Now what does that mean with regards to the
law in relation to self-defence in Scotland? Well there is no specific
definition of self-defence in Scottish law and there are three identifiable
specifics required when lodging a “special defense” in law for self-defence.
And these are 1. A means to escape violence to be utilized if available, 2.
using force on the aggressor to protect another person from violence and harm
and 3. 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 defense can
be raised. it’s called justifiable assault, that’s
the primary name for it in Scottish law, and it says assault may be justified if it
is shown to be done under the authority of the law or in self-defense and the
minimum amount of force is used. I know some of you will come back to me on a 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 definitions 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: 1. Property
must belong to somebody else. 2. It is taken or appropriated. 3. Control or
possession of the property is with the thief. 4. It is without the consent of
the owner or the custodier. Fraud – definition. “Fraud involves the making of
a dishonest and false pretense to bring about some definite result.” Robbery –
definition. “Robbery is the simultaneous criminal acts of theft and assault.” So
basically, if you add theft and assault together you’ve got robbery, and to prove
that robbery has 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 with 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 in the knowledge that the destructive conduct has a
complete disregard for or indifference to the property or the ownership. Willful
Fireraising – definition. “The intentional setting fire to corporeal (bodily or
physical material) property owned by another without their consent”. Now acts
of willful 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 provided the fire had taken effect. Point to note with regard
to this: “Fire raising which is merely accidental does not demonstrate the
necessary means rear and is not a crime and cannot become so on account of
subsequent behavior on part of the person concerned.” And there’s a case
reference that Colin has very kindly provided for us. Now let’s look at the
statutory law for the power to arrest in Scotland. This falls under Section 59
(3) for the Civic Government (Scotland) Act 1982, which
states “The owner tenant or occupier of any property in upon or in respect of
which an offense to which this section applies is being committed or any person
authorized by him may apprehend any person whom the owner or as the case may
be the tenant occupier or authorized person finds committing that offense 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 a tenant of
any property, if they find someone they’re committing an offence, they can
detain them apprehend them and deliver them into the custody of a constable.
Now the offences they are referring to here are section 50 (1) Drunk and
Incapable, and section 57 (1) Suspect person / theft.
So to summarise, there are no citizens powers 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
citizens powers of arrest in Scotland in relation to the serious crimes of
abduction, assault, breach of the peace, fraud, theft, robbery, malicious mischief,
and willful fireraising. Well 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 a very generous and kind person
and 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. Yhank 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, I mean there is a real gap in
information on this out there in the internet. I mean 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’ve turned into this video here. Thanks ever so much and I look forward
to speaking to you all soon.

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