Can voluntary interviews be conducted in Scotland?

23 June 2021

Not reviewed after the date of publication

Question: 

I am looking to conduct some voluntary interviews in Scotland. I wanted to confirm this was achievable and if so, what happens regarding legal advice.

Answer:

England / Wales and Scotland have separate criminal jurisdictions. Therefore, the actions of officers in England / Wales would be governed by PACE whereas, actions of Scottish officers would be governed by the procedures under the Criminal Justice (Scotland) Act 2016 and the Standard Operating Procedure of Scotland.

Despite separate legislation existing for both jurisdictions, close links between the two have previously caused complications for criminal investigations – resulting in sections 136 – 140 of the Criminal Justice and Public Order Act 1994 being enacted – to deal with the cross border issues regularly encountered by officers. Unfortunately, the relevant sections of the Criminal Justice and Public Order Act 1994 do not extend or deal directly with cross-border issues relating to voluntary interviews.

Whilst that is the case, in our opinion, it should be possible to conduct a voluntary attendance in Scotland. Although PACE will not apply outside of England/Wales, we would advise that the provisions and safeguards of the Act be followed as far as possible. PACE, code of Practice C, paragraph 3.21 outlines the procedure to be followed for voluntary interviews both at a police station or other location, including the right of a suspect to be afforded the service of a solicitor should they request such. However, neither the relevant provisions of PACE nor those under the Criminal Justice (Scotland) Act 2016 or the Criminal Justice and Public Order Act 1994 provide any further clarification on whether the solicitor must be Scottish or English.

Despite this, where an interview is being conducted by English officers giving due regard to the PACE provisions, common sense would dictate that the solicitor present should be one that also specialises in the English legislation that is being relied upon. We do not believe this would mean that you would have to conduct the interview over the border to utilise the services of an English solicitor and that instead, the legal advice / presence may be satisfied by a solicitor over the phone.

We would also suggest that even where an interview is voluntary, it would be advisable to liaise with the local police force in which this interview is occurring, especially if it might be necessary to arrest the suspect later.

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