Lord Advocate’s guidelines: Liberation by the police

These guidelines provide assistance to police officers regarding the approach to be taken in connection with the liberation of offenders by Police Scotland.  

They provide a framework within which police officers may exercise a degree of discretion as to the appropriate course of action in each case. 

At all times that a person is in police custody, police officers must have regard to that person’s right to liberty under Article 5 of the European Convention on Human Rights (“ECHR”) and must consider whether it is reasonable and necessary to keep that person in custody.  

There is a specific duty in terms of section 50 of the Criminal Justice (Scotland) Act 2016 (“2016 Act”) to take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody. This must be considered in every case.   

In order for a police officer to decide to keep an individual in police custody there must be 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). 

Additional temporary consideration

In making the assessment of necessity and proportionality, police officers should be aware, and should take into account, that the Lord Advocate has instructed prosecutors to only oppose bail generally where there is a substantial risk of reoffending and causing harm to the public, victim or witness, and this risk cannot be mitigated by imposition of bail conditions.  

This is a temporary measure that follows the Lord Advocate’s statement to Parliament on 10 October 2024 on the current pressures on the prison population. It will be reviewed in 3 months’ time. 

This will not change the current approach in relation to allegations of sexual offences or domestic abuse where the risk to the victim is often highest following a report to the police. 

When considering whether it is necessary and proportionate to keep an individual in custody, a police officer may have regard to: 

• whether the person’s presence in custody is reasonably required to enable the offence to be investigated fully;  
• whether the person (if liberated) would be likely to interfere with witnesses or evidence, or otherwise obstruct the course of justice; and  
• the nature and seriousness of the offence (section 14(2); 2016 Act). 

In considering the nature and seriousness of the offence, for any offending deemed to constitute serious public disorder which is motivated by hate, racism and prejudice there will be a presumption that it is necessary and proportionate to keep an individual in custody.  Where the circumstances of the offence and the person are sufficient to rebut this presumption in favour of liberating the person they should be released on an undertaking. This presumption will be reviewed in December 2024 and this guideline updated if necessary.  This presumption does not apply to children. 

An arrested person should not be detained unnecessarily. Where it is decided not to liberate that person, the reasons for doing so must be set out in the antecedents section of any police report to the Procurator Fiscal.  

As these reasons may also influence the Procurator Fiscal’s position in relation to bail, it is important that the reporting officer should give as much detail as possible and, where appropriate, should do so by reference to these guidelines. This is especially important during the operational period of these guidelines. In particular, the details provided by the reporting officer in relation to any risk the person poses to individuals or the public should be sufficient to allow the Procurator Fiscal to fully consider the overall public interest in respect of bail, taking account also of the current pressure on the prison population. 

In all cases, an appropriate risk assessment must be carried out to establish whether the circumstances of offending behaviour can be reported to the Procurator Fiscal whilst the person is at liberty, including whether conditions can be imposed to manage any risk identified. 

Any decision not to liberate a person must be regularly reviewed. This is of particular importance where a person is detained in custody for a period in excess of 24 hours.  If the reason(s) for keeping a person in custody no longer exist (where, for example, an address has been provided and confirmed, or the identity of the person is confirmed) the police officer should consider releasing the person. 

Where a victim or witness is a child, police officers must also have regard to the United Nations Convention on the Rights of a Child (UNCRC). In particular, the best interests of a child victim or child witness must be a primary consideration in terms of Article 3 of the UNCRC, and the views of the child, where known, should be taken into account.  

In every circumstance where a decision is made to keep a person in custody, a thorough record of that decision, including reasoning and any review of that decision, should be maintained.  All constables must understand and be able to explain, and justify, their decisions if called upon to do so, including when giving evidence at any trial or inquiry.  

Before dealing with any offence, either by way of report to the Procurator Fiscal or alternate action, police officers must satisfy themselves that there is a sufficiency of evidence to establish both the commission of the offence and the identity of the accused as the perpetrator, i.e. there must be at least two sources of evidence to establish that (i) an offence has been committed and (ii) that the accused is the perpetrator of the offence.  

Where further enquiries are necessary which cannot be completed immediately but there is a reasonable prospect that these enquiries could be completed within a 28-day period, officers must consider the use of investigative liberation (see below). 

Notwithstanding that a person has been arrested, and in many circumstances taken to a police station, consideration should be given to the use of non-reporting options for minor offences. Police officers should consider what action is most appropriate in each case, in the context of the offending behaviour. Police officers retain the discretion to take no formal action in relation to minor offending behaviour, where that is an appropriate response. 

Police Officers should consider whether the use of a recorded police warning, in accordance with the recently updated guidelines for The use of the Police Direct Measures for Adult Offenders - Lord Advocate’s Guidelines, is appropriate to deal with the offending behaviour. 

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

Officers should take the following factors into account when considering whether it is appropriate to keep a person 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 unlikely 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 completion of those enquiries. 

Investigative liberation may be used:  

• where further enquiries are necessary;  
• 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, where appropriate; and 
• where the further enquiries cannot be completed immediately but there is a reasonable prospect of these enquiries being completed within a 28-day period. 

The release of a suspect on investigative liberation will: 

• respect the right to liberty under Article 5 ECHR and the duty imposed by section 50 of the 2016 Act, that a constable must take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody; 
• facilitate  timeous further enquiry;  
• mitigate risk posed to victims, witnesses or the public, during the investigation period, by permitting the imposition of certain conditions in relation to a suspect, where appropriate. 

Investigative liberation assists the appropriate management of risk posed to victims, witnesses or the public. In particular, investigative liberation may assist in preventing circumstances arising where the Procurator Fiscal, following submission of a police report, requires to liberate a person without protective conditions, either in the absence of a sufficiency of evidence or pending the completion of relevant investigations which are required to make an informed decision on appropriate prosecutorial action. 

There are no restrictions on the types of offences for which investigative liberation may be used. Investigative liberation is not restricted to more serious offending behaviour. It may be appropriately used in the investigation of offending behaviour which would usually result in summary or solemn procedure. Police officers must consider each case on its merits and assess the necessity and proportionality of imposing conditions. 

The proper conduct of the investigation relates to the investigation as a whole, rather than the investigation as it relates to, for example, a single witness or establishing a bare sufficiency of (corroborated) evidence. An investigation is not complete at the point where witness statements are obtained. A witness may, for example, be asked to provide a follow up statement commenting on other evidence, or to participate in an identification parade. 

Offences involving a course of conduct, including offences in terms of section 1 of the Domestic Abuse (Scotland) Act 2018, require to be fully investigated prior to any report being submitted to the Procurator Fiscal to ensure that the full extent of the offending behaviour can be considered. 

Police officers must apply the terms of the Domestic Abuse Protocol when considering whether investigative liberation is appropriate in respect of persons arrested for domestic abuse offences. Whilst there is a general presumption of liberty, the Protocol sets out the criteria to be considered in each case. 

This includes: 

• the nature and circumstances of the offence, including the severity of the conduct;  
• the likelihood of reoffending;  
• the ongoing risk posed to the safety of the victim, children or any other member of the public;  
• any relevant previous convictions or behaviour suggesting non-compliance with conditions or orders; and  
• whether the incident is part of a course of conduct. 

Given the particular risks associated with cases involving domestic abuse, in some cases, it will be both reasonable and necessary to keep a person in custody whilst relevant enquiries are completed. 

Where it is proposed to release a suspect on investigative liberation, a full assessment of any risk that the suspect may pose to any victim, witness, or the investigation must be carried out. This assessment should take into account the views of the victim, particularly any views regarding conditions which might be appropriate. Every effort should be made to ensure that victims are advised that a person is to be released before the person is in fact released. The conditions of release must be carefully explained to the victim. 

Where a victim or witness is a child, police officers must also have regard to UNCRC. In particular, the best interests of a child victim or child witness must be a primary consideration in terms of Article 3 of the UNCRC, and the views of the child, where known, should be taken into account, particularly any views in respect of any conditions which might be appropriate.  

Conditions attached to Investigative Liberation

Conditions can be imposed by any constable but must be assessed and approved, as necessary and proportionate for the purpose of ensuring the proper conduct of the investigation, by an officer of the rank of sergeant or above. The details of the officer authorising conditions must be recorded.  

There are no standard conditions for investigative liberation. Conditions which can be imposed include those aimed at securing that the person liberated does not interfere with witnesses or evidence.  

The overriding consideration in respect of any condition is that it is necessary and proportionate to ensure the proper conduct of the investigation. It is not appropriate to use conditions simply as a means of controlling a person, whilst enquiries are ongoing. For example, it is not appropriate to impose a condition that a person must remain at a specific place during a specific period, such as a curfew condition.  

Police officers must be able to demonstrate how the condition assists in the proper conduct of the investigation. It is important that the reasoning behind the imposition of any condition is accurately recorded.  

A record must be kept of the following matters: 

• What further enquiries are to be carried out? 
• What additional evidence may be obtained from such enquiries? 
• How the conditions imposed relate to the evidence which  it is hoped to recover or enquiry which it is hoped to complete, i.e. why the conditions imposed are considered necessary and proportionate for the proper conduct of the investigation?  

Where possible, when using investigative liberation, Police Officers should seek to obtain from a suspect a contact telephone number to allow efficient communication with a view to securing compliance with potential future proceedings.

There is no requirement for a suspect to agree to the conditions imposed on investigative liberation. However, they must be given details of the liberation and conditions imposed.  

Modification of Investigative Liberation Conditions

A constable of the rank of inspector or above must keep investigative liberation cases under review and consider whether: 

• there remains reasonable suspicion that the person has committed the offence(s) in question; and 
• the associated liberation conditions continue to remain necessary and proportionate for the purpose of ensuring the proper conduct of the investigation. 

There are no specific legislative requirements for this review process. The conduct of reviews, including the timing or frequency of reviews, is an operational matter for the police to determine. It is, however, important that accurate records are maintained of the review process. 

If the reviewing officer is of the view that there are no longer reasonable grounds for suspecting that the person has committed an offence, or that any condition is no longer necessary and proportionate for the purpose of ensuring the proper conduct of the investigation, the grant of investigative liberation or any relevant condition(s) must be modified or removed as soon as practicable. 

If a condition is modified or removed, a written notice must be given to the relevant person, specifying the time at which the condition is treated as having been modified or removed.  

Reviewing officers should ensure that notices to withdraw or modify conditions are intimated urgently to persons subject to such conditions. The removal of a condition should also be communicated to any relevant victim or witness. Accurate records must be kept of the time that the decision to remove or modify the condition was made and any reasoning for this. 

Review of Conditions of Investigative Liberation by a Sheriff

A person subject to investigative liberation can apply to a Sheriff to have any relevant condition(s) reviewed.  

The Procurator Fiscal is entitled to be heard in respect of any such application and the police will require to submit a report which details the following matters: 

• A summary of the facts in the case. 
• Detail of any conditions imposed. 
• Detail of the rationale behind the decision to impose any condition(s) including; details of the further enquiries being carried out; any additional evidence that it is hoped will be obtained as a result of these enquiries; and how and why the conditions imposed are deemed necessary and proportionate for the proper conduct of the investigation. 
• Details of any review process undertaken by a police inspector, including the timing of, and rationale for, any decision to remove or modify a condition. 

Any alteration of the liberation conditions by a Sheriff, on review, must be intimated to any relevant victim or witness as soon as possible. 

Breach of Investigative Liberation conditions

A person commits an offence if they fail to comply with a condition of investigative liberation. If a person commits an offence which also amounts to a breach of a condition of investigative liberation, that offence will be aggravated by being committed whilst subject to investigative liberation. 

The status of an accused person in relation to the investigation of any breach of investigative liberation should be determined with reference to the guidance on “Persons Officially Accused” herein. 

Where a person is in custody, having been arrested without warrant, and is charged with an offence, a constable may (section 25; 2016 Act): 

• release the person from custody unconditionally (without an undertaking); 
• release the person from custody with an undertaking; or 
• decide not to release the person from custody. 

In all cases there is a presumption of liberty. The duty, in section 50 of the 2016 Act, to take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody must be considered in every case and reasons why a person was not liberated must be fully recorded. However, for any offending deemed to constitute serious public disorder which is motivated by hate, racism and prejudice there will be presumption that it is necessary and proportionate to keep an individual in custody. This presumption does not apply to children and will be reviewed in December 2024 and this guideline updated if necessary. 

Where, after an appropriate risk assessment, police officers are satisfied that the circumstances of offending behaviour can be reported to the Procurator Fiscal whilst the person is at liberty, including where conditions can be imposed to manage any risk identified, consideration must be given to liberating the person. 

When considering whether to liberate a person, police officers must consider whether there is a substantial risk that the person, if liberated, may: 

• commit further offences which pose a risk of harm to members of the public or specific individuals; interfere with witnesses; 
• otherwise threaten public safety;  
• obstruct the course of justice;
• abscond or fail to appear; or 
• fail to comply with a condition imposed on liberation. 

Specific factors to take into account when deciding whether to liberate a person may include:  

• Any significant risk posed to the safety of a victim, child or other member of the public, including information regarding previous incidents directed towards the same victim. 

• The nature and circumstances of the offence, including the severity of the offending behaviour and whether the incident is part of a course of conduct. A person should not be released on an undertaking where the offending is likely to justify solemn proceedings and the person poses a risk to others. 

• Information that the accused has threatened a relevant witness, with a view to dissuading them from cooperating with the criminal justice process, will interfere with, or dispose of, evidence or otherwise prejudice ongoing enquiries. 

• Any relevant previous convictions or behaviour suggesting non-compliance with conditions or orders.  

• Whether at the time of any new offending, the person was subject to an unexpired portion of sentence, on licence or parole, or subject to any court order, such as deferred sentence, a community payback order, a restriction of liberty order, or otherwise. 

• Where the identity of the person is in doubt or the person does not have a fixed address and no suitable address can be identified. All efforts must be made to overcome any issue regarding an accused who presents as having no fixed abode, or whose identity has not been confirmed prior to the individual being reported in custody. 

Any decision not to liberate person must be regularly reviewed. This is of particular importance where a person is detained in custody for a period in excess of 24 hours. 

If the reason(s) for detention in custody no longer subsist (for example, an address has been provided and confirmed, or the identity of the person is confirmed) police officers should consider releasing the person at that time. 

If liberated Police Officers should ensure the person has provided  a contact telephone number. Provision of a contact number facilitates efficient communication; potentially reduces the risk of absconding; and assists with securing compliance with potential future proceedings.

Where it is not considered appropriate to release the person unconditionally (without being subject to an undertaking), the 2016 Act permits liberation on undertaking for both summary and solemn level offending behaviour.  

The fact that a person has previously been liberated subject to an undertaking or a bail order, which remain live, is not an absolute barrier to their liberation. Police officers must consider the full circumstances, including the presumption of liberty and all of the factors listed above. 

Where, after an appropriate risk assessment, police officers are satisfied that the circumstances of offending behaviour can be reported to the Procurator Fiscal whilst the person is at liberty, but that conditions are necessary and proportionate to manage any risk identified, consideration should be given to liberating the person subject to an undertaking with appropriate conditions, having regard to any risk that the suspect may pose to any victim, witness, or, where appropriate, the investigation. This assessment should take into account the views of the victim, particularly any views regarding appropriate conditions. 

A constable may release a person on undertaking if the person undertakes to appear at a specified court at a specified time; and to comply with any conditions which may be imposed. The conditions which may be imposed are that the person 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. 

In terms of section 26 of the 2016 Act it may be appropriate to impose conditions in addition to the standard terms of any undertaking. A constable of the rank of sergeant or above can authorise any further condition necessary and proportionate for the purpose of ensuring that any of the conditions above are observed, except the imposition of a curfew condition, which can only be authorised by a constable of the rank of inspector or above. 

Examples of further conditions include the following: 

• not to approach, contact or communicate with a witness 
• not to enter a particular street or area 
• not to have contact with any person aged under 16 years 
• not to enter within a certain distance of a sports ground within a certain time period before or after a specified sporting event 
• to report to a police station at certain times 
• a curfew condition 

This list is not exhaustive and there may be a variety of conditions which might be appropriate in the specific circumstances of a case. In addition to specific conditions, Police Officers should seek from the person a contact telephone number. Provision of a contact number facilitates efficient communication; potentially reduces the risk of absconding; and assists with   securing compliance with potential future proceedings. 

In cases involving serious offending by an accused person with a primary address outwith the United Kingdom, it may be appropriate to impose a condition that the accused person surrender their passport/other travel document. In such circumstances, the undertaking must specify a court date which pre-dates the date on which the accused intends to leave the United Kingdom, where possible. 

A person can only be released on undertaking if that person consents to the terms of the undertaking and signs the undertaking form. If a person does not consent to the terms of the undertaking they cannot be released subject to an undertaking and should, in most circumstances, be kept in custody to appear at a court on the next lawful day. 

Police officers should be cognisant of the fact that, notwithstanding the right of a person to ask that undertaking conditions are reviewed by a Sheriff (section 30; 2016 Act), there will, under most circumstances, be no judicial oversight of conditions attaching to an undertaking until a person appears before a court. It is imperative that any condition attached to an undertaking should be easily understood by any person to whom it applies. It will be good practice to provide a map, or similar, to a person where that will be of assistance to a person in facilitating their compliance with any condition. 

Every effort should be made to ensure that any relevant victim is advised that a person is to be released subject to an undertaking, before the person is in fact released. The conditions of release must be carefully explained to the victim. Any victim should also be updated about any changes in conditions as a result of modification by the Procurator Fiscal or review by the Sheriff. 

Police officers must have regard to the terms of the Domestic Abuse Protocol when considering liberation on undertaking for persons charged with an offence involving domestic abuse. Whilst there is a general presumption of liberty, the Protocol sets out the criteria to be considered in each case which must be considered in conjunction with these guidelines. Given the particular risks associated with domestic abuse cases, in some cases it will be both reasonable and necessary to keep an accused person in custody pending the submission of a report to the Procurator Fiscal.  

Where it is proposed to release a suspect in a domestic abuse case subject to an undertaking, consideration must be given to imposing appropriate further conditions of undertaking, having regard to risk and safety considerations. Account should be taken of the views of the victim or witness, particularly in respect of any conditions which might be appropriate. The best interests of a child witness or victim must be a primary consideration. Every effort should be made to ensure that victims are advised that a suspect is to be released before the suspect is in fact released. The conditions of that undertaking must be carefully explained to the victim. Where the victim or witness is a child, care must be taken to explain the conditions so that they understand. 

Given the risks associated with domestic abuse cases, in some cases, it will be both reasonable and necessary to keep a person in custody pending the submission of a report to the Procurator Fiscal. Police officers must have regard to the terms of the Domestic Abuse Protocol when considering release of persons arrested for domestic abuse offences. Whilst there is a general presumption of liberty, the Protocol sets out the factors to be considered and applied in each case.  

Where a victim or witness is a child, police officers must also have regard to the UNCRC. In particular, the best interests of a child victim or child witness must be a primary consideration in terms of Article 3 of the UNCRC, and the views of the child, where known, should be taken into account, particularly any views in respect of any conditions which might be appropriate. Where the victim or witness is a child, care must be taken to explain the conditions so that they understand. 

Date of Court Appearance

(i) 28 Days – General Rule

The date of the appearance at court should, where possible, be no later than 28 days after the date of liberation, or otherwise in accordance with specific agreements between Police Scotland, COPFS and the Scottish Courts and Tribunals Service (SCTS).  

(ii) 14 Days – Domestic Abuse

In respect of domestic abuse offences, the court appearance should be no later than 14 days after the date of liberation. 

(iii) 7-10 Days - Children (under 18)

In most cases children should be released on undertakings to appear within 7-10 days. Undertakings involving children should be fixed to call at 12pm to allow the child to avoid waiting at court for extended periods of time. 

(iv) Next Day Undertakings

There will be circumstances where it is appropriate to release a person on an undertaking to appear on the next day on which a relevant court is sitting.  

Next day undertakings should only be considered appropriate where: 

• The person is one of a number of accused persons, where one or more is held in police custody to appear at court on the next lawful day, but the person’s individual circumstances mean that it is not necessary to hold them in custody pending their court appearance; 
• The person would otherwise have been held in police custody but has a medical condition rendering them unsuitable to remain in custody or a healthcare professional advises that they are unfit to remain in custody; 
• Where the person resides ordinarily outwith the United Kingdom and they are likely to leave the United Kingdom before the date of any court appearance; 
• Where the circumstances are such that a person would otherwise be held in police custody, but doing so would cause significant adverse consequences for another person, such as a child who is dependent on the person; 
• Where having considered all the circumstances of the offence and the personal circumstances of the person, it would not be proportionate to hold them in custody, but there is a significant factor which means that it is in the interests of justice to commence proceedings as soon as possible. 
• It will not be appropriate to report a child until the relevant investigation is complete and a “next day” undertaking is unlikely to be appropriate where the relevant evidence against the child is complex to the extent that detailed enquiry will be necessary to inform a decision on appropriate prosecutorial action. This may be particularly relevant to allegations of solemn level sexual offending.  It will only be in exceptional cases that a child should be reported as a “next day” undertaking: where the person is a child, the offending is likely to be considered at solemn level, and due to the circumstances of the individual case, it is in the interests of the child that proceedings commence without delay. 

In all circumstances, the reason for the “next day” undertaking must be recorded in the SPR.

Submission of SPR

The Standard Prosecution Report (SPR) must be submitted to the Procurator Fiscal as soon as is reasonably practicable and, in any case, no later than seven days after the date of liberation.  

The SPR should clearly indicate the court and time at which the accused must appear on the undertaking. Any conditions attached to the undertaking must be clearly specified in the report together with details of the officer who authorised the special conditions. 

A copy of the signed undertaking form must also be submitted. 

Modification of undertaking conditions

Once a person has been released on undertaking, the terms of the undertaking can only be modified by the Procurator Fiscal: the police have no power to amend the terms of the undertaking. However, the Procurator Fiscal cannot impose any condition more stringent than that imposed by the relevant police officer.  

Review of undertaking conditions

A person released on undertaking with further condition(s) may seek a review of the condition(s) by the sheriff. However, they cannot seek a review of a condition not to commit an offence, interfere with witnesses or behave in a manner causing alarm or distress to witnesses. Officers should record the reasons for any further condition being imposed and detail regarding why it was felt that such a condition was necessary and proportionate. 

Breach of undertaking conditions

A person liberated on undertaking commits an offence if they: 

• fail to appear at court as required by the undertaking; or  
• fail to comply with any other condition of the undertaking  

Any breach of an undertaking condition must be reported to the Procurator Fiscal at the earliest opportunity. The status of the accused in relation to any breach of undertaking should be determined with reference to the guidance on Officially Accused Persons.  

Where an undertaking is breached by the commission of another offence, the new offence will be aggravated by the fact that it was committed whilst the person was subject to an undertaking and that aggravation should be libeled as part of the charge for the new offence.  

Where a person is in custody having been arrested on a warrant, a constable may either: 

• liberate the person on an undertaking; or  
• decide not to liberate the person 

It is not competent to liberate a person arrested on warrant (other than in terms of section 297A of the Criminal Procedure (Scotland) Act 1995) without making them subject to an undertaking and, if necessary and appropriate, further conditions.  

It is important to note that where the court has issued a warrant for a person’s arrest, it follows judicial consideration of the appropriateness of doing so, in light of the circumstances of the non-appearance, the history of the proceedings, the charges before the court and, if any is provided, the reason or explanation for the failure to appear. It will accordingly only be appropriate to liberate such persons on undertaking in exceptional circumstances.  

Exceptional circumstances may include:

• Where a medical professional declares that the person is not medically fit to be detained in custody.  
• Where the person requires prolonged hospital treatment. 
• Where there is a particular welfare concern, which would justify the person being released from custody. 

This guidance applies to both accused persons arrested on a pre-conviction warrant and persons arrested on a witness warrant.  

A person arrested on warrant for Post Charge Questioning under section 37 of the 2016 Act must not be liberated. They should be kept in custody to allow for questioning to take place under the terms of the warrant granted.

In terms of section 51 of the 2016 Act, where a constable decides whether to hold a child in police custody, they must treat the need to safeguard and promote the wellbeing of the child as a primary consideration. 

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. 

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.