Cross border powers and warrants

23 September 2020

Not reviewed after the date of publication

Question: 

If a defendant was in custody or prison in Scotland and was due to be released could Police Scotland attend, arrest for the English Failure to Appear warrant, and then detain whilst transfer to the relevant court is arranged?

Answer:

Section 136-140 of the Criminal Justice and Public Order Act 1994 outlines the cross-border powers required in the circumstances you mention.

Section 136 provides the powers and conditions for constables from England, Wales, Scotland or Northern Ireland to execute certain warrants in any of those countries.

136(1) Provides specific powers to officers in Scotland to execute certain warrants issued in England, Wales or Northern Ireland.

'136(1) A warrant issued in England, Wales or Northern Ireland for the arrest of a person charged with an offence may (without any endorsement) be executed in Scotland by any constable of any police force of the country of issue or of the country of execution, or by a constable appointed under section 24 of the Railways and Transport Safety Act 2003, as well as by any other persons within the directions in the warrant.'

The warrant itself will stipulate the place where the person is to be taken to be dealt with in relation to that warrant and the powers afforded under it – see section 136(4) which states:

'136(4) A person arrested in pursuance of a warrant shall be taken, as soon as reasonably practicable, to any place to which he is committed by, or may be conveyed under, the warrant.'

Therefore as per the above, if the warrant states they are to appear to the next available court in England this must be carried out as soon as is reasonably practicable.

136(4A) also confirms provisions that apply in executing a warrant issued in England, Wales or Northern Ireland.

'136(4A) The following provisions apply in relation to the execution under this section by a constable of a warrant issued in England and Wales or Northern Ireland -

a) where the warrant is executed under subsection (1), the constable has the same powers of entry and search for the purpose of executing the warrant as a constable of a police force in Scotland would have if the warrant had been issued in Scotland;
b) where the warrant is executed under subsection (2)(b) or (3)(a), the constable has the powers of entry and search conferred by section 137E;
c) where the warrant is executed under subsection (1), (2)(b) or (3)(a), the constable has the powers conferred by section 139 in relation to the arrested person;
d) the constable may use reasonable force, if necessary, in arresting the person or in exercising the powers conferred by sections 137E and 139.'

Whilst the person is in custody under the warrant, the provisions of PACE should be applied with the safeguards in place in PACE Code C regarding persons in custody, still adhered to, for example with regards to monitoring and observations.

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