The Criminal Justice (Scotland) Act 2016 (2016 asp 1) is an Act of the Scottish Parliament which reformed criminal practice and procedure in Scotland. The act was intended to "modernise and enhance the efficiency of the Scottish criminal justice system".

Background

In October 2010, following the ruling in ''

Cadder v HM Advocate ''Cadder v HM Advocate'' 010UKSC 43 (26 October 2010) is a decision in which the Supreme Court of the United Kingdom held that the way in which police in Scotland detained suspects was not compatible with the European Convention on Human Rights ...

'', a

Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...

judgement ruling the lack of access to a solicitor in law for persons detained by police under section 14(1) of the

Criminal Procedure (Scotland) Act 1995 Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...

unlawful, the Scottish Government asked the Lord President to nominate a single High Court judge to lead an independent review of Scottish criminal law and practice. The Lord President of the Court of Session at the time, Lord Hamilton, subsequently nominated Lord Carloway, who was himself appointed Lord President in 2015. The Carloway Review was subsequently published on 17 November 2011, and its recommendations led to the introduction of the Criminal Justice (Scotland) Bill before the Scottish Parliament by Kenny MacAskill MSP,

Cabinet Secretary for Justice The Cabinet Secretary for Justice and Veterans, commonly referred to as the Justice Secretary, is a position in the Scottish Government Cabinet. The Cabinet Secretary has overall responsibility for law and order in Scotland. The Cabinet Secreta ...

for the Scottish Government on 20 June 2013. The Criminal Justice (Scotland) Bill was passed by the Scottish Parliament on 8 December 2015, and received royal assent on 6 April 2020. The Act came into force in various stages between 2016 and 2019, with subsequent amendments.

Part 1 of the Act reforms the powers of the police in Scotland in relation to arrest and detention. Previous common law powers of arrest and separate statutory powers of detention were replaced by section 1 of the Criminal Justice (Scotland) Act 2016, a single statutory power of arrest similar to section 24 of the

Police and Criminal Evidence Act 1984 The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise ...

in England and Wales. Section 3 provides that all persons arrested under section 1 are cautioned and told of the reason for their arrest. Part 1 of the act also ensured that all persons in police custody are provided with the right to access a solicitor, after the ruling in the case of

, which preceded the Carloway Review. Furthermore, section 50 of the Act places a duty onto the police to ensure that a person is not "unreasonably or unnecessarily held in police custody". Part 2 of the Act introduces new legislation in relation to the use of stop and search by police in Scotland. It abolishes a 'voluntary stop and search', where a person was able to voluntarily submit themselves to a stop and search by police. This police power had proved controversial in its use, particularly on children, in the years leading up to its abolition. The Act provides that police only have the power to stop and search any person in accordance with a legal power to do so or a warrant enabling them to do so. This was enshrined in the Code of Practice on the Exercise by Constables of Powers of Stop and Search of the Person in Scotland, brought into force by section 77 of the Act on 11 May 2017. The Act also fulfilled a promise by the Scottish Government to increase the maximum sentence for possession of an offensive weapon, as well as having an article with a blade or point, under the Criminal Law (Consolidation) (Scotland) Act 1995.

References

{{reflist Acts of the Scottish Parliament 2016 Governance of policing in the United Kingdom Law enforcement in Scotland Law enforcement in the United Kingdom Scottish criminal law

Background

Contents

References