Domestic Abuse (Scotland) Act 2011

Breach of domestic abuse interdict with power of arrest S

2 Breach of domestic abuse interdict with power of arrest S

(1) This section applies where—

(a) on or after the date on which this section comes into force, an interdict is granted against a person,

(b) a determination has been made under section 3(1) that the interdict is a domestic abuse interdict,

(c) that determination is in effect,

(d) a power of arrest is attached to the interdict under section 1(1A) or (2) of the Protection from Abuse (Scotland) Act 2001 (asp 14), and

(e) that power of arrest is in effect.

(2) A person who breaches an interdict to which this section applies is guilty of an offence.

(3) A person guilty of an offence under subsection (2) is liable––

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both,

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine or to both.

(4) Following conviction, a breach of an interdict to which this section applies is not punishable other than in accordance with subsection (3).

(5) Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.

(6) A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court.

(7) In this section and section 3, “interdict” includes interim interdict.

3 Determination as to whether an interdict is a domestic abuse interdict S

(1) A person who is applying for, or who has obtained, an interdict may apply to the court for a determination that the interdict is a domestic abuse interdict.

(2) The court may make the determination if satisfied that the interdict is, or is to be, granted for the protection of the applicant against a person who is (or was)—

(a) the applicant's spouse,

(b) the applicant's civil partner,

(c) living with the applicant as if they were husband and wife or civil partners, or

(d) in an intimate personal relationship with the applicant.

(3) Before making a determination under subsection (1), the court must give the person against whom the interdict is, or is to be, granted (“A”) an opportunity to make representations.

(4) A determination under subsection (1) is of no effect for the purposes of section 2 until a copy of the interlocutor containing the determination has been served on A.

(5) Where a court varies an interdict in relation to which a determination under subsection (1) is in effect, the court must—

(a) review whether the interdict as varied continues to be a domestic abuse interdict, and

(b) if not, recall the determination.

(6) A determination under subsection (1) ceases to have effect for the purposes of section 2 if it is recalled under subsection (5).