The Law Relating to Arrest

Arrest of a person can occur either with a warrant granted by the court or without such a warrant.

'A Warrant is an authorisation by a Court to a person which entitles him to do or to require other persons to do things which but for the Warrant he would have no right to do or which they would not be legally required to do or consent to his doing.'

Arrest with a warrant

Warrants to arrest are rarely obtained in summary procedure and would only really be taken if:

(a) a time bar was approaching in a statutory case;

(b) the accused's whereabouts are unknown;

(c) the accused has failed to turn up at court having been lawfully cited to do so;

(d) for other procedural reasons such as requirement for fingerprints.

In solemn procedure the fiscal will present a petition to the sheriff setting out the particulars of the accused and the charge and seek a warrant.

A warrant granted by a judge in Scotland may be executed anywhere in Scotland. Section 136(1)-(3) of the CJPOA 1994 provides that a warrant issued in any part of the UK may be executed without endorsement in any other part of the UK by any constable of any police force of the country of issue or of the country of execution as well as any other person within the directions in the warrant.

Arrest without a warrant

Arrest can also be without a warrant. At common law the general rule is that arrest without warrant is a proceeding which requires to be justified if challenged.