Lord Advocate’s guidelines on liberation of offenders involved in protest

1. These guidelines should be applied by police officers considering the liberation of offenders arrested for a protest offence

2. A protest offence is, broadly, an offence which comprises conduct from which it can be inferred, either from its location, its motivation, and/or surrounding circumstances, that it is connected with protest activity

3. Protests may relate to a wide range of issues, including but not limited to: 

• environment/climate change,
• geopolitical issues,
• far right/far left ideology,
• equalities issues,
• trans and gender rights,
• abortion services etc.

4. Protest activity can extend to counter-protests.

5. The right to peacefully protest is protected by law and it is anticipated that peaceful protest will be facilitated by any police response.

6. It is essential that officers are aware of and understand the difference between protest activity that amounts to a crime and protest activity which is lawful. 

7. All individuals have a right to liberty under Article 5 of the European Convention on Human Rights (“ECHR”). 

8. Officers require to balance the rights of the protesters against the impact that any criminal behaviour has on others (including their ECHR rights).

9. No individual should be arrested and/ or detained unless it is necessary and proportionate. This must be assessed on an individual basis.

10. Officers should consider alternative ways of dealing with an individual to avoid arrest and detention where possible.

11. In Scotland, for an officer to arrest an individual without a warrant, officers must have reasonable grounds for suspecting an individual has committed an offence and  be satisfied that it would be in interests of justice not to delay an arrest to seek a warrant.

12. Section 1 of the Criminal Justice (Scotland) Act 2016 (the “2016 Act”) provides:

it would not be in the interests of justice to delay an arrest in order to seek a warrant if the constable reasonably believes that unless the person is arrested without delay the person will —

(a)continue committing the offence, or
(b)obstruct the course of justice in any way, including by —

• seeking to avoid arrest, or
• interfering with witnesses or evidence.

13. Where an arrest is considered necessary, then officers must take every precaution to ensure that a person is not held in police custody for longer than is necessary and reasonable (Section 50 of the 2016 Act). 

14. Arrested persons remain eligible for a direct measure. Officers should adhere to the Lord Advocate's guidelines on the use of the police direct measures for adult offenders.

15. If a report is to be submitted to the Procurator Fiscal, officers are provided with a range of options for liberating an individual:

• Release the person without conditions
• Release the person with conditions through
  • (i) investigative liberation where there are further inquiries outstanding and the person hasn’t been charged,
  • (ii) undertakings where the person has been charged (i.e. is an “officially accused”).
• Detain the person in custody for appearance at court the next lawful day

16. Officers should always select the most proportionate option to manage the risk presented by an individual.

17. Officers should record reasons for all of their decisions relating to liberation.

18. Any decision not to liberate a person must be regularly reviewed, particularly where the person is detained in custody longer than 24 hours.  If the reason for the detention in custody no longer remains (where, for example, an address has been provided and confirmed, or the identity of the person is confirmed) the officer should consider releasing the person at that time.

19. Officers should always obtain working phone numbers and an up to date and accurate address for arrested individuals to assist with securing future attendance.

20. It will be appropriate to release an individual without conditions where:

• Conditions are not required to manage any risk posed by the individual (including risk of reoffending, absconding, interfering with witnesses) and/or,
• Where it is not necessary to secure the early attendance of the individual at court.

21. Investigative liberation is a tool which allows officers to release an individual from custody who has not been charged (i.e., is not officially accused), with conditions.

22. Investigative liberation should be used where:

• an individual has not been charged (i.e. is not an officially accused)
• there are further inquiries necessary (either to establish a sufficiency of evidence, or to fully investigate the case)
• where, after an appropriate risk assessment, officers are satisfied that the enquiries may be conducted whilst the person is at liberty, with conditions imposed to manage any risk, 
• conditions are necessary and proportionate to assist with the investigation (section 16(2) of the 2016 Act)

23. Examples of conditions which are likely to be considered are:

• not to approach or contact a witness
• not to be in a specified place 

24. Investigative liberation conditions cannot be used as a means of controlling a person whilst enquiries are ongoing. The 2016 Act specifically precludes the use of a condition which requires that a person is in a certain place at a certain time (section 16(3)(a)). This means that a curfew condition would not be possible, nor would it be possible to require an individual to attend an identification parade or attend for a DNA sample to be taken.

25. Investigative liberation conditions can be imposed by any constable but an officer of the rank of sergeant or above must assess and approve them as necessary and proportionate for the purpose of ensuring the proper conduct of the investigation.

26. A police undertaking requires an individual to attend at court on a particular date and to comply with specific conditions whilst at liberty. 

27. Police undertakings should be used where:

• An individual has been charged (i.e., is officially an accused)
• Following an appropriate risk assessment, officers are satisfied that conditions are necessary and proportionate to manage any risk posed by the individual being at liberty
• It is necessary to secure the individual’s attendance at court at a particular time and date

28. The standard undertaking conditions which may be imposed are that the individual does not:

• commit an offence;
• interfere with witnesses or evidence, or otherwise obstruct the course of justice; or
• behave in a manner which causes, or is likely to cause, alarm or distress to witnesses.

29. In addition, further conditions can be imposed (section 26 of the 2016 Act). 

30. Examples of further conditions include:

• not to approach or contact a witness
• not to communicate with a witness directly or indirectly for example via social media
• not to enter a particular street or area - this should, where possible, be accompanied by a map delineating the relevant area and may be appropriate in relation to criminal behaviour at a specific location where there is a public interest in preventing the accused returning to that specific place.
• not to enter within a certain distance of a specified area, within a certain time period - for instance this may be appropriate where a person engaged in unlawful protest within a specific place (e.g., a bank) and there is a public interest in the accused not returning to the same location.
• to report to a police station at certain times - this may be appropriate where there is a concern that a person will fail to cooperate with the criminal justice process.
• a curfew condition - it should, however, be clear what the purpose of any suggested curfew condition is.

31. The preceding list of potential conditions is not exhaustive.

32. Any additional condition must relate to the particular accused or the nature of offending involved and should be necessary to secure that the standard conditions of the undertaking are complied with. 

33. It will not be appropriate to seek a special condition that an accused person “does not engage in any protest activity” (or similar). The right to protest is enshrined in Articles 10 and 11 ECHR. Any such condition would be in direct conflict with those rights and is unlikely to be justified. Any condition should be targeted at the unlawful behaviour rather than the protest activity.

34. The accused should be liberated on an undertaking to appear in court at an early date where:

• a co-accused has been detained in custody but there is no justification for keeping all accused in custody (with the undertaking being to appear in court on the same day as those accused detained in custody).
• there is a need to bring the case to court without delay, for example, cases involving child victims, cases in which animals have been retained as productions, or witnesses (particularly from a foreign jurisdiction but not including police officers from England and Wales) are likely to become unavailable.
• the accused has a primary address out with the United Kingdom. Where possible, the undertaking should specify a court date which pre-dates the date on which the accused intends to leave the United Kingdom. 

35. Any condition attached to an undertaking should be easily understood by the person to whom it applies. It will be good practice to provide a map, or similar, to assist.

36. Authorisation of an officer of the rank of sergeant/inspector must be obtained as appropriate in terms of section 26(5) of the 2016 Act.

37. To be justified in keeping an individual in police custody, officers must have reasonable grounds for suspecting that:

• the person has committed an offence; and
• that keeping the person in custody is necessary and proportionate for the purposes of bringing the person before a court or otherwise dealing with the person in accordance with the law (section 14(1); 2016 Act).

38. Officers should also consider the likelihood of the person being remanded in custody. In Scotland, bail can only be refused where the court is satisfied it is necessary:

• in the interests of public safety, including the protection of the complainer from a risk of harm, or
• to prevent a significant risk of prejudice to the interests of justice (Section s28B Criminal Procedure (Scotland) Act 1995).

39. Where a person is in custody having been arrested without warrant and is charged with an offence, a constable may detain in custody so that they may be brought before a court not later than the first lawful day after the accused was charged with an offence by a constable.

40. Detention may be necessary and proportionate for example where:

• the accused is a danger to the public, or a specific complainer
• the accused is likely to interfere with witnesses
• there is reason to believe that the accused will abscond or leave the country, and the offence is likely to merit solemn proceedings i.e. be prosecuted on indictment.
• the identity of the accused is in doubt or the identity of the accused must first be ascertained in order to determine whether bail is likely to be opposed for some other reason e.g. the existence of previous convictions.

41. When officers decide to detain a person for court, it is essential that the reasons for this are set out in the antecedents/history section of the police report to the Procurator Fiscal. 

42. As these reasons may also influence the Procurator Fiscal’s decision as to whether to oppose bail, it is important that the reporting officer should give as much detail as possible and, where necessary, should do so by reference to these guidelines. 

43. Where there are ongoing enquiries, a person arrested but not officially accused (i.e. not charged) should only be kept in custody if it is not appropriate to release the person unconditionally or on investigative liberation subject to appropriate conditions (Section 16 of the 2016 Act). 

44. Officers should take the following factors into account when considering whether it is appropriate to keep an individual in custody where there are ongoing enquiries:

• the nature of the offence - if the investigation is not likely to result in solemn proceedings and/or does not involve vulnerable victims or witnesses then it is not likely to be appropriate to keep an individual in custody whilst enquiries are ongoing.
• any significant risk posed to victims, witnesses or the public if the person is liberated
• the nature of the further enquiries required and the realistic timescales for completing those enquiries.

45. In terms of section 51 of the 2016 Act, where a police officer is considering whether to hold a child (under 18) in police custody, they must treat the need to safeguard and promote the wellbeing of the child as a primary consideration.

46. In terms of Article 37(b) of UNCRC, arrest, detention or imprisonment of a child should only be used as a measure of last resort and for the shortest period of time.

47. Children can be released on investigative liberation or undertakings. However, the best interests of the child must be a primary consideration and the necessity and proportionality of imposing conditions on a child and any views expressed by the child, where known, must be considered carefully before applying any liberation condition to a child. Full and detailed reasoning for the imposition of such conditions must be recorded in a manner which the child understands.

48. Officers should bear in mind the need to deploy interpreters in appropriate cases and the requirement to consider consular access for arrested persons from overseas. 

49. In the context of widespread protest-related activity, individual cases may justify action which is at variance with the guidelines.

50. Special arrangements for on-call fiscals may apply during periods of significant protest- related activity. Full details will be available through Police Scotland Criminal Justice Services.

51. Officers must always be prepared to exercise professional judgment in cases, although any significant departure from these guidelines will require explanation and justification in the report and should, in cases of difficulty, be discussed with the Procurator Fiscal.

52. Police Scotland will ensure officers are trained on the liberation of individuals, both those accused of protest related offending, and more widely.

53. It is expected that Police Scotland will regularly review officer’ decisions to review to liberate individuals during extended periods of protest, to ensure that decisions are being made appropriately.

54. These Guidelines will themselves be subject to regular review.