Section 38 Right to have intimation sent to other personI1

(1)

A person in police custody has the right to have intimation sent to another person of—

(a)

the fact that the person is in custody,

(b)

the place where the person is in custody.

(2)

Intimation under subsection (1) must be sent—

(a)

where a constable believes that the person in custody is under 16 years of age, regardless of whether the person requests that it be sent,

(b)

in any other case, if the person requests that it be sent.

(3)

The person to whom intimation is to be sent under subsection (1) is—

(a)

where a constable believes that the person in custody is under 16 years of age, a parent of the person,

(b)

in any other case, an adult reasonably named by the person in custody.

(4)

Intimation under subsection (1) must be sent—

(a)

as soon as reasonably practicable, or

(b)

if subsection (5) applies, with no more delay than is necessary.

(5)

This subsection applies where an appropriate constable considers some delay to be necessary in the interests of—

(a)

the investigation or prevention of crime,

(b)

the apprehension of offenders, or

(c)

safeguarding and promoting the wellbeing of the person in custody, where a constable believes that person to be under 18 years of age.

(6)

In subsection (5), “an appropriate constable” means a constable who—

(a)

is of the rank of sergeant or above, and

(b)

has not been involved in the investigation in connection with which the person is in custody.

(7)

The sending of intimation may be delayed by virtue of subsection (5)(c) only for so long as is necessary to—

F1(a)

ascertain whether a local authority will arrange for someone to visit the person in custody under section 41(2) F2, or

(b)

for a local authority to give advice by virtue of section 41(9).

(8)

In this section and section 39—

“adult” means person who is at least 18 years of age,
“parent” includes guardian and any person who has the care of the person in custody.

Annotations

Textual amendments

F1: Words in s. 38(7) renumbered as s. 38(7)(a) (30.3.2026) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 15(6)(a), 38(3); S.S.I. 2025/379, reg. 2(2)(c)
F2: S. 38(7)(b) and word inserted (30.3.2026) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), ss. 15(6)(b), 38(3); S.S.I. 2025/379, reg. 2(2)(c)

Commencement

I1: S. 38 in force at 25.1.2018 by S.S.I. 2017/345, art. 3, sch. (with art. 4)

Notes on Part 1

Modifications

C1: Pt. 1 applied (with modifications) by 2003 c. 20, s. 31A (as inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 2 para. 2 (with art. 6))
C2: Pt. 1 applied (with modifications) by 1994 c. 33, s. 137ZA (as inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 1 para. 4 (with art. 5(2)))
C3: Pt. 1 applied (with modifications) by 2004 c. 20, s. 56A (as inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 2 para. 3 (with art. 6))
C4: Pt. 1 applied (with modifications) by 1987 c. 4, s. 2D (as inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 2 para. 1 (with art. 6))
C5: Pt. 1 applied (with modifications) (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 4 (with art. 8)

Notes on Chapter 5

Modifications

C1: Pt. 1 Ch. 5 applied (with modifications) by 1994 c. 33, s. 137D(3)(b) Sch. 7B Pt. 2 (as inserted (31.1.2017 for specified purposes, 1.3.2018 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 116(1)(3), 183(1)(5)(e), Sch. 16; S.I. 2018/227, art. 2(f))
C2: Pt. 1 applied (with modifications) by 2003 c. 20, s. 31A (as inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 2 para. 2 (with art. 6))
C3: Pt. 1 applied (with modifications) by 1994 c. 33, s. 137ZA (as inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 1 para. 4 (with art. 5(2)))
C4: Pt. 1 Chs. 1-6 applied (with modifications) (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 3 Pt. 3 (with art. 7, Sch. 3 Pts. 5, 6)
C5: Pt. 1 applied (with modifications) by 2004 c. 20, s. 56A (as inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 2 para. 3 (with art. 6))
C6: Pt. 1 Chs. 1-6 applied (with modifications) (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 3 Pt. 2 (with art. 7, Sch. 3 Pts. 5, 6)
C7: Pt. 1 applied (with modifications) by 1987 c. 4, s. 2D (as inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 2 para. 1 (with art. 6))
C8: Pt. 1 Chs. 1-6 applied (with modifications) (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 3 Pt. 4 (with art. 7, Sch. 3 Pts. 5, 6)
C9: Pt. 1 Chs. 1-6 applied (with modifications) (25.1.2018) by The Police Investigations and Review Commissioner (Application and Modification of the Criminal Justice (Scotland) Act 2016) Order 2017 (S.S.I. 2017/465), arts. 1-4
C10: Pt. 1 applied (with modifications) (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 4 (with art. 8)