Protection From Abuse (Scotland) Act 2001

The ability to attach a power of arrest has been extended to circumstances in which an interdict has been applied for, or already obtained, for the purpose of protection against abuse. [1] 'Abuse' is defined as including abuse, harassment, threatening conduct, and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress. This is not an exhaustive list and conduct includes speech and presence in a specified place or area. [2] A power of arrest must also be attached on application to an exclusion order or interdict that has been granted ancillary to an exclusion order. [3]

A power of arrest increases the effectiveness of an interdict, if the terms of the interdict are breached, as it gives the police power to intervene and remove the perpetrator from the scene until the next court day and then possibly for a further 48 hours. [4]

A person who has rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 can chose to exercise these or to use the Protection from Abuse (Scotland) Act if s/he wishes to do so. S/he cannot rely on both pieces of legislation in relation to the same interdict and power of arrest. S/he would have to decide under which Act to make an application to the court to attach a power of arrest. This is to avoid any possible confusion about which legislative provisions are relevant. For example, the rules on the duration of powers of arrest differ.

Where a person applies for, or has already obtained, an interdict to protect her/him against abuse, and s/he wishes a power of arrest to be attached, the court must grant this if it is satisfied that:

• the interdicted person has had the chance to be heard by, or represented before, the court

• a matrimonial interdict is not already in force

• attaching the power of arrest is necessary to protect the applicant from a risk of abuse in breach of the interdict. [5]

It is not sufficient that the interdicted person is being abusive or is likely to be so, s/he must be in breach of the specific actions contained in the interdict.

The Act does not restrict the application for a power of arrest to interdicts that are granted after 6 February 2002, the date the Act itself came into force. As a result, a person who has already been granted an interdict prior to this date can return to the court and request that a power of arrest is attached at a later date, provided that the interdict itself is still in force.

A power of arrest does not become effective immediately the court grants this. It will only be effective from the date it and any other documents prescribed by the court are served on the interdicted person. [6] It is not therefore effective until the interdicted person is aware of its existence.

When the court grants the application to attach a power of arrest, it will also specify the date that the power will expire. The initial maximum period of time that the power will exist for is three years after the date when the power is attached. [7]

A power of arrest will end automatically:

• at the date specified by the court, or

• when it is recalled, or

• when the interdict to which it is attached is itself varied or recalled. [8]

The three year duration can be extended and the court must grant an extension if:

• the interdicted person has had the chance to be heard by, or represented before, the court

• extending the power of arrest is necessary to protect the applicant from a risk of abuse in breach of the interdict. [9]

These are the similar to the tests applied to the initial granting of the power. If the court grants an extension, it must also specify a new end date that is again for a maximum of three years. [10] The Act does not specify a maximum number of extensions that can be applied for. If the relevant tests are met, extensions of a power to arrest will continue to be granted. [11] Again, the first and any subsequent extension only becomes effective once the interdicted person is made aware of it. [12]

A power of arrest must be recalled if the person who obtained it applies for recall or the interdicted person applies for recall. [13]

If the interdicted person applies for recall, the court must be satisfied that the person who obtained the power has had the chance to be heard by, or represented before, the court. It must also be satisfied the power is no longer necessary to protect that person from a risk of abuse in breach of the interdict. [14]

A power of arrest will cease to be effective from the time it is recalled by the court. The Act is silent on the exact point the power will cease but, in practice, a recall is effective from the moment it is signed by the judge.

Before a power of arrest becomes effective, in addition to informing the interdicted person, the person who applied for the power must inform the Chief Constable of any police area within which the power has effect of its existence. [15] This may involve informing more than one police force and, if the interdict is granted in the Court of Session, possibly every police force unless the interdict is restricted to particular locations. Once they have been informed, the police then have power to arrest, without warrant, a person of whom they have reasonable suspicion of breaching the interdict and where they consider that there is a risk of further abuse if an arrest does not take place. [16]

Once the perpetrator has been arrested the police have the power to detain her/him until the next court day. [17] The procurator fiscal may decide to proceed with a criminal prosecution if a crime has been committed or arrange for her/him to appear at the next court date. If there is not to be a criminal prosecution then the court must decide if, at first glance, the interdict has been breached and if there is a substantial risk of abuse if the interdicted person is freed. If the court decides that this is the case, then it can order a further 48-hour detention. [18]