THERE are big changes coming to Scottish policing in the next few days and with big changes can come big problems. The aim of the new measures, we are told, is to modernise the arrest, custody and questioning procedures in Scotland and improve access to legal advice for people taken into custody. That is the aim. The reality appears to be shaping up rather differently.

Much of the concern around the new rules, which will come into force this Thursday, focuses on the idea of so-called investigative liberation, which, like some of the rest of the Criminal (Scotland) Justice Act 2016, is fine in principle but more worrying in practice.

Based on the recommendations in Lord Carloway’s review of criminal law, the idea is that suspects should not be held in custody for more than 12 hours without being charged. Instead, they could be freed for up to 28 days while the police carry out their investigations. In theory, this is perfectly reasonable and would give the police much greater flexibility to manage cases which can often be complicated and time-consuming.

However, the changes will have to be carefully managed if they are not to be extended for the wrong reasons – a lack of resources, for example, or a pressure on staff. A balance will also have to be struck between the greater flexibility for the police and public safety – quite understandably, much of the concern around the changes has focused on the risk of releasing people suspected of domestic abuse or other violent offences. It is all still to be tested on the ground, but the worry must be that investigative liberation quickly becomes the automatic norm and is not rigorously tested case by case.

It also doesn’t help that another troublesome element of the new rules means that solicitors have begun pulling out of the police station duty rota, which provides legal advice to suspects. Again, the change is sound in principle: everyone being questioned in a police station will have the right to legal advice, regardless of the severity of the offence or whether they have been charged. It is a sound measure that upholds the principles of fairness and equality that should be at the centre of the justice system.

However, the problem is that the new rules, while sound in principle, are going to lead to significantly increased workloads for the lawyers in the duty scheme – workloads which many lawyers have judged unsustainable. It is why the Edinburgh Bar Association, whose members account for around 100 of the 845 solicitors in the police station duty scheme, voted to withdraw from it and many more solicitors will probably follow.

No one quite knows what will happen when the new rules come into force, although it is likely that the Scottish Legal Aid Board will have to make up the shortfall with its own lawyers or take on extra staff to cope, with an unknown increased cost for taxpayers. Another risk is that the shortage of lawyers increases pressure on the police to release suspects. As one source told The Herald: “If the police can’t provide suspects with the lawyer they have the statutory right to, they’ll have to make sure the suspects are not in custody.”

The Scottish Government will have to keep its promise to keep a close watch on the situation as it unfolds, but already some of the lessons of the changes are emerging, mainly that reforms without adequate funding or staffing can do more damage than good. The principles of the Criminal (Scotland) Justice Act 2016 have attracted widespread support, but the danger is that the principle at the heart of the law – that anyone suspected of a criminal offence should be treated openly, fairly and quickly – will be undermined by an offence of which politicians are far too frequently guilty, namely changing the law without checking how much it will cost.