Domestic Abuse - Police Powers PDF

OFFICIAL Unit 6 Lesson 7.3...

OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Learning Aim: The learner will be able to explain the impact of Domestic Abuse and the Police role in protecting victims Learning Outcomes: Introduction On successful completion of the lesson, When used effectively the law can offer students will be able to:- victims of domestic abuse protection and security. When dealing with cases of 1. Explain the options available regarding domestic abuse you will find that both criminal the release or otherwise of accused and civil law are involved. Criminal law does persons. not differentiate between married, cohabiting 2. State the options open to the court or separated couples or civil partners. when a person appears from custody However some aspects of civil law are charged with a crime relating to dependent on the relationship between the domestic abuse. abused partner and the perpetrator. 3. Explain the terms ‘Matrimonial Home’ During your training so far you have been and ‘Family Home’. learning about how the criminal law protects the public. When dealing with cases of 4. Define ‘Occupancy Rights’ under the domestic abuse the victim is afforded Matrimonial Homes (Family Protection) protection under the civil law as well as (Scotland) Act 1981. criminal law. 5. Explain how occupancy rights are There are a number of pieces of legislation, affected by different categories of which protect victims of domestic abuse, the relationship. primary ones being the Matrimonial Homes 6. Explain the provisions of Section 22 of (Family Protection) (Scotland) Act 1981, the the Rent (Scotland) Act 1984 with Protection from Abuse (Scotland) Act 2001, regard to domestic incidents. the Civil Partnership Act 2004 and the Family 7. Explain the purpose of Interdicts. Law (Scotland) Act 2006. The Protection from Harassment Act 1997 also offers some 8. State the correct police action in protection in domestic abuse situations. relation to Interdicts without a power of arrest. 9. State the police powers and procedures to be followed in relation to Interdicts with a power of arrest. 10. State the purpose of an Exclusion Order. 11. Explain the purpose of Non- Harassment Orders in relation to domestic abuse under the Protection from Harassment Act 1997 and their associated police powers. 1 th Amended 13 March 2024 v.5 OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Officer in Charge of Police Station When a perpetrator is arrested in relation to Domestic crimes, Custody Officers should take cognisance of the Lord Advocate's Guidelines relating to Liberation by the Police and the Police Scotland/COPFS joint protocol, "In partnership challenging domestic abuse". Where there is a sufficiency of evidence and the accused has been cautioned and charged, they will either be released on an undertaking to appear at court at an early diet or, in appropriate circumstances, held in custody pending appearance at court. Police officers must take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody. Given the particular risks associated with domestic abuse cases, in some cases, it will be both reasonable and necessary to hold an accused in custody pending the submission of a report to the PF. When considering whether to release an accused by way of an undertaking or hold them in custody, a risk assessment is carried out by the custody sergeant. Where the accused is not traced at the time of the incident and there is sufficient evidence, the police will report the circumstances to the PF within the same accelerated timescales as if the accused was detained in custody and (where appropriate) a warrant will be sought for the apprehension of the accused. The PF would deal with this request as a matter of priority. Court Proceedings When an accused appears in court from custody, generally they will be liberated that day. If the accused pleads “guilty” the matter can be dealt with that day, and if no custodial sentence is passed, the accused is free to return home. Often, however, the sentence is deferred for reports from social work which helps the Sheriff decide on an appropriate disposal. If the accused pleads “not guilty”, a date will be fixed for the trial. The accused may then be released on bail. Sometimes the court will attach special conditions to the bail, usually prohibiting the accused’s return to the family home or from prohibiting the accused from approaching or contacting the victim of the domestic abuse until the date of the trial. 2 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Activity 1 A1 Consider the following scenario and discuss what actions you would take in these circumstances. Scenario At 10am on Monday Mr Neil McDonald appears at Brookbank Sheriff Court on a charge of assaulting his wife. He pleads not guilty and is released on bail pending a court appearance in 3 months. The sheriff attaches the following special bail conditions. “Mr McDonald should not enter or approach within 50 metres of the matrimonial home and must not contact or attempt to contact, or approach or attempt to approach Mrs MacDonald. At 11am, Mrs McDonald phones the police station stating she is terrified as her husband is currently at the front door demanding that she gives him some toiletries and his clothes. Key Information KI To ensure the Crown Office Procurator Fiscal Service (COPFS) are provided all required information relating to your case when submitting a Standard Prosecution Report (SPR), a Domestic Abuse Template (Appendix A) is available on your local intranet. 3 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Feedback 1 F1 Regardless of the fact that Mr McDonald may need his clothes and toiletries he is clearly breaching his bail conditions. In doing so, he has committed a criminal offence under Section 27(1) (b) of the Criminal Procedure (Scotland) Act 1995. You should arrest him and convey him to the Police Station to appear at court the next lawful day. You should caution and charge him with the breach of bail. Mr McDonald could have made alternative arrangements to get his possessions. He had no need to go to the house in person. His attendance at the house would be intimidating for his wife. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 In general the act establishes who in a relationship has rights to occupy and remain in the family or "matrimonial" home otherwise known as 'occupancy rights’. It enforces these rights with the provision of interdicts and exclusion orders issued by the court. In cases of domestic abuse it is common for one partner to eject or threaten to eject the other from the home, so it is important that you have an understanding of how the act works to protect victims and their children. Note:- The protection in the act applies equally to male and female victims of domestic abuse and incidents affecting same sex couples. The terms "Matrimonial Home" and "Family Home" are almost the same and include traditional homes in the form of house, flats, apartments, etc., and also less conventional homes such as caravans and houseboats. Where the terms differ significantly is that before a home can be considered a “Matrimonial Home” , the couple occupying it must either be married or in a civil partnership. 4 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers The term "Family Home" relates to homes occupied by couples who have not undertaken a ceremony of marriage or civil partnership. In either case the term "home" extends beyond the residence itself and includes associated grounds and gardens and other buildings, e.g., garages, sheds, etc. Categories of Relationship Where the Couple are Married or in a Civil Partnership Under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, couples are divided into "Entitled" and "Non-Entitled" spouses or partners. Essentially, an "Entitled" partner is someone who is the registered owner or tenant of the property (i.e. their name is on the mortgage or rent book). In many cases, both partners will be "Entitled" with joint mortgages or Tenancy agreements. A "Non-Entitled" spouse or partner is someone who is not officially recorded as being an owner or tenant of the property. The 1981 Act confers automatic occupancy rights to both "Entitled" and "Non-Entitled" partners in a Marriage or Civil Partnership. Neither can exclude the other from the home. However, the "Non- Entitled" spouse or partner, despite having occupancy rights, is in a disadvantaged position in that they have no right of ownership or tenancy to the property. As we shall see in the forthcoming activity, legal complications arise when such a "Non-Entitled" spouse or partner has been excluded from the home. So, What are ‘Occupancy Rights’? We have already mentioned occupancy rights, now let’s look at how they are defined by the act. This relates to occupancy rights of a spouse i.e. the couple occupying it must either be married or in a civil partnership. 5 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Occupancy Rights are:- The right, if in occupation, to continue to occupy the matrimonial home. If not in occupation, a right to enter into and occupy the matrimonial home. And in either case the right to do so together with any child of the family. Note:- Automatic occupancy rights can be lost if they are not used by the “non-entitled” partner. If there has been no cohabitation for two continuous years and the “non-entitled” partner has not resided in the home during that period, then they lose their occupancy rights. This rule cannot apply to someone with sole or joint ownership of the property. Rights of ownership are never lost. A court has the power to both grant and suspend occupancy rights. As we have already said civil law is dependent on the relationship between the abused partner and the abuser. Cohabiting Couples who are Joint Tenants/Owners A cohabiting couple (i.e. not married or in civil partnership) who are joint owners or tenants of the home both have the automatic right to reside there, i.e. they are entitled to remain in the house that they legally own or rent. Both names would have to be present on the mortgage, rent book, title deeds or lease. Neither can lawfully exclude the other from the house. Cohabiting Couples Where Only One is the Sole Owner/Tenant Where the couple are cohabiting and only one partner is the sole tenant/owner of the home the other person does not automatically have occupancy rights regardless of the length of the relationship. The sole tenant or owner can require the partner to leave, and thereafter the partner could be refused access to the property. This can be difficult to understand especially when a couple have lived together for years. However, the partner who is not the sole 6 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers owner or tenant can apply to the court to have occupancy rights granted (this is a slow process and would only extend such rights for 6 months). Note:- It is not your responsibility as a police officer to eject a partner in these circumstances. You should advise both partners to consult a lawyer and suggest that it would be reasonable to give a few days’ notice to the person being ejected. Please note the term 'Common Law' husband/wife is not recognised under Scottish Law. See Appendix B for the occupancy rights flowchart. Section 22 of the Rent (Scotland) Act 1984 This piece of legislation creates a criminal offence for anyone to deprive a ‘residential occupier’ of premises of their occupation of the premises. This could be done by harassing the occupier from the home, or by changing the locks and thereby preventing access. The same result can be achieved by depriving the occupier of utilities required to make normal habitation possible (e.g. turning off the gas or electricity supply). This act was specifically designed to protect tenants from harassment from their landlords. However the term ‘Residential Occupier’ is extended to include people in relationships who have occupancy rights. When Would You Be Able To Make Use Of the Act? With regard to domestic incidents, you could consider cautioning and charging a person for depriving their partner of their occupation of the Matrimonial Home, but only if the excluded partner has occupancy rights (i.e. by virtue of marriage, civil partnership, and joint ownership/tenancy or through a court order). If the person excluded is a cohabiting partner with no occupancy rights, they are not by definition a ‘Residential Occupier’ and have no protection under this act. The Rent (Scotland) Act 1984 does NOT give a power of entry. 7 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers In reality, this act is not designed to deal with domestic incidents and is rarely used for this purpose. A more lasting remedy can be achieved through the civil courts and the wronged party should be encouraged to consult with a solicitor at the earliest opportunity. Activity 2 A2 You will receive calls for assistance or advice from members of the public who have been excluded by their partner from the family home. These can be very emotive and difficult situations to deal with. It is important that you can give accurate and impartial advice to both parties about their rights and responsibilities. Consider the following scenarios and what advice you would give to the excluded party in relation to their occupancy rights:- Scenarios Alice and Brian are married and joint owners of the matrimonial home. The relationship has deteriorated and while Brian has been out visiting his Mother, Alice has had the locks to the house changed and refuses to let Brian back in to the house. Colin and Daniel are Civil Partners. Colin is the sole registered tenant of the matrimonial home. Following a breakdown in the relationship, Colin excludes Daniel from the house. 8 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Activity 2 continued A2 Edward and Fiona are married. Following a breakdown of the relationship, Fiona left the matrimonial home to stay with her mother. She has lived there now for several weeks. The matrimonial home is owned solely by Edward. Fiona has now decided that she wishes to resume occupancy of the matrimonial home and has been refused entry by Edward. Gail and Harry are a cohabiting couple who are joint owners of the family home. After an argument on a night out, Gail tells Harry not to come home and locks him out. Ian and Julie are a cohabiting couple who have lived together for 10 years in rented accommodation. Ian is the sole registered tenant. Ian suddenly tells Julie that the relationship is over and orders her out the house. 9 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Professional Standards PS The basic legal advice in respect of the above scenarios does not take into account the realities of human relationships. Nor does it take into account the likely consequences of any action taken. Although one party might be legally entitled to enter and/ or remain in the matrimonial home, exercising this right might well place them or another family member at risk of further abuse. Any advice given about occupancy rights should be tempered with this warning. Both parties should be advised to consult a solicitor at the earliest opportunity and warned about taking the law into their own hands. As stated before, it is not the function of the police to assist in ejecting anyone from their home or assisting others in gaining access. However, we are often called to such situations. As always, our remit is to protect public safety and the peace. When attending a domestic incident, it can be an intolerable and dangerous situation to leave the feuding parties within the home. You should make every effort at exploring other accommodation possibilities with both parties. Aside from any civil dispute over occupancy rights, if there is a suggestion of a criminal offence having been committed you should fully investigate this and take the appropriate action in respect of the alleged offender. 10 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Feedback 2 F2 In this situation Brian has occupancy rights by virtue of the relationship and also the joint right of ownership to the property. Brian is entitled to force entry to the home, causing damage if necessary (it’s his property) and continue his residency. Daniel has automatic occupancy rights through the registered civil partnership. However, as he has no right of ownership or tenancy, he cannot force entry to the property in order to exercise these rights. If he can gain access to the property without causing any damage that is legally acceptable. Otherwise he needs to apply to the court for an order to enforce his rights of occupancy. The question here is whether the matrimonial home has ceased to be the usual residence of Fiona. This will be a matter of circumstances. For example if she had gone for a planned holiday at her mother’s and it was always expected that she would return to the matrimonial home after a few weeks, then the matrimonial home is still her usual residence and she is entitled to return to it (see Alice and Brian). But if she walked out and has indicated that she is not returning, then she is no longer in occupation of the matrimonial home. Although she has automatic occupancy rights, she has no right of ownership to the property. As she has been refused entry by Edward, she cannot force entry at the risk of causing damage and must apply to the court before exercising her occupancy rights. In this circumstance, Harry has full occupancy and ownership rights. He may force entry to the property, causing damage if necessary and continue his occupancy. 11 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Feedback 2 F2 If one of a cohabiting couple (who are not married or civilly registered) is the sole owner or tenant of the family home, then the other partner has no automatic right to reside there, regardless of the length of the relationship between them. In this situation, Ian can ask Julie to leave and if she refuses to go, a court order can be obtained in order to eject her. The court will normally require a short period of notice to be given, usually a few days. Naturally, Ian may not physically eject Julie from the house. Doing so might constitute a Breach of the Peace or an Assault. Despite her situation, Julie can apply herself to the court for occupancy rights to be awarded to her. This would grant her the same status as a married person or civil partner who is not the owner/tenant of the home. Furthermore, she could then apply for an exclusion order which if granted would suspend Ian’s occupancy rights. Interdicts Interdicts generally are court orders made to prevent the commission of a wrongful or illegal act, they are issued under civil law. In domestic abuse situations, legislation has been passed to allow a power of arrest to be attached to certain interdicts obtained by married and cohabiting couples, in heterosexual or same sex relationships. Such interdicts are called “Matrimonial”, “Domestic” or sometimes “Relevant” interdicts, depending on the nature of the relationship between the couple. The relevant legislation is the Matrimonial Homes (Family Protection) (Scotland) Act 1981, the Protection from Abuse (Scotland) Act 2001 the Family Law (Scotland) Act 2006 and the Civil Partnership Act 2004. 12 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers It should be noted that any spouse or partner, of either sex and whether married, unmarried or in a civil partnership can apply to the court for an interdict to protect them from abuse. An interdict can prohibit:- any conduct of one spouse towards the other spouse, or a spouse from entering or remaining in the matrimonial home or a specific vicinity of the matrimonial home entering or remaining in any other residence occupied by the applicant spouse the abusive partner entering or remaining in the place of work of the other partner the abusive partner entering or remaining in the school attended by any child in the care of the other partner The interdict can offer protection not only to the abused partner but also to children of the family. All interdicts are served on the person to whom they are addressed by Sheriff Officers, so that the person cannot claim not to have known about the existence of the interdict. Interdict without a Power of Arrest Prior to 2002, there were technical legal difficulties for some types of cohabiting couples in having a power of arrest attached to an interdict. Some people choose to apply for an interdict but do not seek a power of arrest. Unfortunately, such interdicts can be ineffective in protecting the applicant from domestic abuse. You may come across such interdicts without power of arrest, though they will not be recorded on any police information systems. If you are called to an incident where a partner has had an interdict granted without a power of arrest attached and there is evidence that the interdict has been breached, you do not have the power to arrest the other partner for a breach of interdict. The complainer should be advised to contact their solicitor with a view to raising breach of interdict proceedings. 13 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers You should, however, look at all the circumstances and consider whether or not a crime has also been committed e.g., if the behaviour of the person subject to the interdict has constituted an assault or a breach of the peace. If so, you could then consider using your power of arrest under Section 1 of the Criminal Justice (Scotland) Act 2016 and report the offender for the relevant crime in the usual manner. Note:- Remember, your priority is the safety of the applicant and any children. Interdict with a Power of Arrest A power of arrest may be attached to an interdict dealing with domestic abuse. The legislation under which the interdict itself is granted may vary, but the procedures and powers of arrest in relation to all interdicts of this type are conferred by the Protection from Abuse (Scotland) Act 2001. The court will, on application, grant a power of arrest to an interdict provided:- The interdicted person has been given an opportunity to be heard or represented before the court AND The court is satisfied that the power of arrest is necessary to protect the applicant from the risk of further abuse. The court, on attaching a power of arrest, must specify a date of expiry for the power, being a date not later than three years after the date when the power is attached. Notification If an interdict has a power of arrest attached to it, a copy must be served on the interdicted person by Sheriff Officers. A copy must also be delivered to the Chief Constable of the area in which the matrimonial home is situated, and, if the applicant resides in another area, to the Chief Constable of that area. Details of ‘live’ interdicts with a power of arrest can be held on PNC. You should check with the control room to confirm their existence and validity. In any case, both parties will have a copy of the Interdict. 14 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Police Action Where a power of arrest is attached to an interdict a constable may arrest the interdicted person without warrant if you:- have reasonable cause to suspect the person of being in breach of interdict, and consider that there would be, if the person were not arrested, a risk of abuse or further abuse by that person in breach of interdict The term “abuse” is widely defined in the act and includes violence, harassment, threatening conduct and any other conduct, including speech or even mere presence in a particular place, giving rise to physical or mental injury, fear, alarm or distress. The power of arrest is conferred by S4 of the Protection from Abuse (Scotland) Act 2001 Note:- When arresting a person using this legislation consider using the “INRAN” procedure discussed in the Evidence module, alternatively use your arrest Aide Memoire replacing the reference to S1 Criminal Justice (Scotland) legislation with S4 Protection from Abuse (Scotland) Act 2001. Interdicts are issued under civil legislation and an officer may arrest if there is reasonable cause to suspect that there has been a breach of the interdict. In reality, this means that you should use the power of arrest to protect the applicant even though full corroborative evidence may not be immediately available at the time of arrest. Guidelines from the Lord Advocate state that an offending spouse "will" be arrested in all but the most trivial cases. An example of a trivial case would be a coincidental meeting in a shop between the applicant and the subject where no threatening behaviour is apparent and the safety of the applicant and/or child of the family is not in doubt. Before deciding if a case is trivial, discuss the circumstances with your supervisor. Where an interdict with a power of arrest is in force, it is not open to the applicant to waive the power of arrest. 15 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Situations whereby an interdict remains in force but a reconciliation appears to have taken place between the couple are common place. It should be remembered that this reconciliation may not have been made on the full and free will of the applicant, who may still be at risk of abuse. In these circumstances, the arrest should be made irrespective of the apparent wishes of the applicant and details of the incident, including any mitigating factors, brought to the attention of the court. Where a person has been arrested for a breach of domestic abuse interdict, they will be brought before court on the next lawful day. The court will be provided with a copy of the interdict showing the associated power of arrest. Note:- A breach of a domestic abuse interdict with a power of arrest is a criminal offence punishable by imprisonment. You should endeavour to make further enquiries to establish all the available corroborative evidence before submitting a SPR. On appearance at court, if the Sheriff is satisfied that the arrested person continues to present a risk to the person named in the interdict, they may authorise the arrested person to be detained in custody for up to 48 hours. This is in addition to any time already spent in police custody following arrest. Exclusion Orders Married persons, persons in a civil partnership (and co-habiting couples (who have occupancy rights i.e. joint owners/tenants or persons who have been awarded occupancy rights by the court) can apply to have an Exclusion Order granted. An Exclusion Order is a court order which has the effect of suspending one partner’s occupancy rights to the matrimonial/family home. They usually come with a package of interdicts, including an interdict prohibiting the abusive partner from entering or remaining on the premises. Like interdicts, Exclusion Orders are served on the person to whom they are addressed by Sheriff Officers. 16 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Purpose and Effect of Exclusion Order Once served, the Exclusion Order means that the non-applicant partner must leave the matrimonial/family home (usually on 7 days notice). Associated interdicts will be granted as required, prohibiting the partner from entering or returning to the home, damaging the property or removing furnishings and fittings. A power of arrest is almost always attached to interdicts associated with an Exclusion Order. When applying to the court for an Exclusion Order a solicitor on behalf of the applicant must present evidence which shows that the applicant or any children living in the matrimonial home are in danger from the behaviour or threatened behaviour of the non- applicant which is or would be injurious to their physical or mental health. The important point here is that the non-applicant need only to have threatened the other partner or children. It is not necessary for actual physical harm to have occurred. Note:- The period an Exclusion Order depends on the variations of each case, i.e. relationship status etc. Protection from Harassment Act 1997 Section 8(A) Harassment amounting to Domestic Abuse Section 8 of the Protection from Harassment Act 1997 provides that every individual has a right to be free from harassment and accordingly a person must not engage in conduct which amounts to harassment of another and:- is intended to amount to harassment of that person, or occurs in circumstances where it would amount to harassment of that person Harassment includes a person behaving in a way, which is designed to cause alarm or distress to another person. This might include, for example, following a person, sending letters or unsolicited gifts, repeatedly telephoning, turning up at place of work without cause etc. This legislation only applies where the conduct referred to above, amounts to Domestic Abuse. Note:- Harassment must involve conduct on at least two occasions. 17 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers A Non-Harassment Order (NHO) under this legislation can be used to prohibit such behaviour, which may otherwise be lawful. Applying for Non-Harassment orders In civil proceedings, A Non-Harassment order (NHO) can be applied for by victims of domestic abuse or otherwise, through a solicitor under Section 8 Protection from Harassment Act 1997. In criminal proceedings (domestic or otherwise), where the perpetrator is convicted of an offence involving harassment of a person, the PF can apply to the court to grant an NHO (non- harassment order) in addition to any other disposal which might be made. A NHO through criminal proceedings is not made automatically and officers are required to provide supporting evidence for any subsequent application for an NHO within the ‘Remarks’ section of the Standard Prosecution Report (SPR). In all such cases the police must first obtain the views of the victim on; The need for a NHO and The appropriate conditions to be included in any such order There must be a charge or charges libelled that show conduct on more than one occasion before the PF can consider seeking an NHO on behalf of the victim. Note:- The PF will be unable to apply for such an order if this information is not included in the SPR. Interdict/NHO Generally speaking, it is easier for those persons eligible to apply for an interdict and/or exclusion order with powers of arrest, as they are quicker and easier to obtain. However interdicts can only be used to prohibit unlawful behaviour such as threats, assault and verbal abuse whereas Non-Harassment Orders are used to prohibit behaviour, which would otherwise be lawful It must be explained to the victim that whilst a NHO can be requested by the prosecutor on conviction of the accused, the decision to grant such a protective order rests with the Sheriff. 18 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Domestic Abuse (Scotland) Act 2018 – NHO Reform The Domestic Abuse (Scotland) Act 2018 makes a number of reforms to Non-Harassment Orders and these extend to both cases under Section 1 of the new Act and to offences aggravated by domestic abuse under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The main changes to NHOs are:- NHOs are available not just for the victim but for any child usually residing with the accused or victim or both, if the court is satisfied that it is appropriate for the child to be protected by the order The court must in every case, on conviction, consider whether to make a NHO There is a presumption in favour of the court making a NHO in every case unless satisfied that there is no need for the victim or children to be protected by such an order The views of older children on having a NHO is relevant, but for younger children, it may not be appropriate to seek their views Breach of Non-Harassment Order NHO’s granted under either civil or criminal proceedings is a criminal offence and is punishable by imprisonment. Where it has been established or suspected that the conditions of a NHO have been breached the suspect should be arrested under power of Section 1 Criminal Justice (Scotland) Act 2016. Conclusion The reduction in domestic abuse is a major priority for today’s Government. The Scottish Government finances high profile advertising campaigns aimed to raise the public’s awareness of domestic abuse and encourage victims to seek assistance. In some parts of Scotland abusers who have been found guilty of domestic abuse at court must attend and complete an anger management course in the hope that this will change their behaviour. You are now aware of how the law can help protect victims and children from domestic abuse. 19 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Appendix A Criminal Justice Division December 2016 DOMESTIC ABUSE TEMPLATE, SCOTTISH POLICE REPORT To ensure that Crown Office Procurator Fiscal Service (COPFS) are in full possession of all relevant information and in compliance with the Domestic Abuse Toolkit. The following information is required to be included within the Summary section of Standard Prosecution Reports (SPR2) in all Domestic Abuse cases. SUMMARY - SUB SECTION - ANTECEDENTS Using sub headings this non disclosable section of the SPR2 should contain the following information. Relationship: State the nature of the relationship, its duration, current status, (date of commencement / separation as appropriate) and whether parties reside together. Children: State if there are children as a result of the relationship or if either party have children from a previous relationship and if children reside with them. State if there are any concerns or issues around child contact and the safety of the victim and children. State if children were present during the current offence and if so, confirm if appropriate referrals have been made in respect of any child welfare concerns. Include views of the child on the incident and their views and the views of their parents/carers (other than the accused) on giving evidence against the accused. History: 20 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Include details of all previously reported incidents of domestic abuse involving the accused, whether or not these resulted in charges being libelled. (Please check across all available IT systems for this information). Also include details of incidents which have not previously been brought to the attention of the police (e.g. where the victim or other witnesses disclose incidents which have previously gone unreported and are not reported in the summary because of insufficient evidence) Provide a brief overview of each allegation and specify whether it involved the current victim. Provide details of any previous convictions for domestic abuse or other relevant convictions, again specifying whether the incident involved the current victim. Court orders: Provide details of any bail conditions and all other relevant court orders (civil and criminal) Non-Harassment Orders, Interdicts etc. Risk assessment: Provide details from the Domestic Abuse Questions (DAQ) risk assessment: specify the score, categorisation of risk and all relevant information provided by the victim. Where any other criminal behaviour is disclosed, please provide details and confirm if the victim has formally reported this for investigation. Include the victim’s views about the risk presented and any anecdotal information about previous controlling or abusive behaviour; highlight any information about escalation of behaviour or other factors which indicate increased risk. Include any identified risk to children and other witnesses. Victim’s Opinion: Provide details of the victim’s opinion expressed to police, or a specialist support or advocacy service in relation to court proceedings against the accused. Specify views on requests to remand the accused or application of special bail conditions. Provide details of the victim’s views in relation to the need for a Non-Harassment Order especially in cases where there is serious misconduct or which involve a pattern of offending behaviour or where the victim is fearful of further offending. Specify the victim’s views on the appropriate conditions to include within the order. 21 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Vulnerability: Provide information on the vulnerability of the accused and any witnesses, including those 'deemed' vulnerable under the Victims and Witnesses (Scotland) Act 2014, who have automatic entitlement to standard special measures when giving evidence (including victims of domestic abuse, stalking, sexual offences, human trafficking and children and young people under 18). Individual support needs: State if there is a need for an interpreter, other communication or support needs and support requirements around a disability. SUMMARY - SUB SECTION - DESCRIPTION OF EVENTS This disclosable section, as per all SPR2, must include a full narrative of the events and available evidence in the case, in chronological order. Provide details of accounts of witnesses, injuries sustained, medical treatment received, any property damaged and cost of repair. Details of the interview with the accused, including any relevant admissions or exculpatory comments, must also be included. Exculpatory or other information which undermines the Crown case or assists the defence should be included under sub heading Exculpatory Information. Counter allegations: “In the case where the alleged perpetrator makes a counter allegation, it will not always be necessary for a report to be submitted to the Procurator Fiscal in respect of the counter allegation. In particular where the circumstances of the offence, history of the relationship and criminal history of the parties suggest that the counter complaint may be without substance, it will be sufficient following investigation for full details of the counter allegation to be contained within the report submitted against the alleged perpetrator” “If it is required, the Procurator Fiscal can then request a full report in respect to the counter allegation” - (Domestic Abuse Toolkit, Section 5.13) The full details of counter allegations should be included under sub heading Counter Allegation. 22 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers It will not generally be appropriate to arrest and report both parties to the PF and every effort must be made to identify the principal perpetrator. Only in limited circumstances should both parties be reported to the PF. Where this occurs and separate SPR2s are submitted, both SPR2s must be cross referred and the Description of Events sections in each must contain a common narrative of the full events. Reasons for reporting both parties should be included within the SPR2. SUMMARY - SUB SECTION - ANALYSIS OF EVIDENCE/ IDENTIFICATION OF ACCUSED In addition to stating what each witness speaks to, this section should include a short summary outlining the corroborative evidence to prove that both:- 1. a crime had been committed, and; 2. the accused has been identified as the perpetrator Example of summary: Proof of Crime: Witness Smith (complainer) speaks to being assaulted by the accused. Police Witness Jones and White speak to her injury and distress. Proof of Identification (of accused as perpetrator): Witness Smith identifies the accused as the perpetrator and the accused admits to being in a physical altercation with the complainer. SUMMARY - SUB SECTION - REMARKS In this non disclosable section include any other relevant information which the Procurator Fiscal should have before making a decision about the case. SUMMARY - SUB SECTION - FURTHER ENQUIRIES In this non disclosable section outline details of any further enquiry identified and being pursued. 23 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Appendix B 24 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers For further information, use the resources shown below:- Domestic Abuse Toolkit Review: You can explain the options available regarding the release or otherwise of accused persons You can state the options open to the court when a person appears from custody charged with a crime relating to domestic abuse You can explain the terms ‘Matrimonial Home’ and ‘Family Home’ You can define ‘Occupancy Rights’ under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 You can explain how occupancy rights are affected by different categories of relationship You can explain the provisions of Section 22 of the Rent (Scotland) Act 1984 with regard to domestic incidents You can explain the purpose of interdicts You can state the correct police action in relation to interdicts without a power of arrest You can state the police powers and procedures to be followed in relation to interdicts with a power of arrest You can state the purpose of an Exclusion Order You can explain the purpose of Non-Harassment Orders in relation to domestic abuse under the Protection from Harassment Act 1997 and their associated police powers 25 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 7.3 Domestic Abuse - Police Powers Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 26 Protection and Wellbeing in Our Communities OFFICIAL