Domestic abuse protection notices
Section 4 – Making of domestic abuse protection notice
28.Section 4 sets out the test for making a DAPN and the process by which a senior constable can make a DAPN. A definition of a “senior constable” is provided at section 21. A senior constable is a constable holding the rank of inspector or above.
29.Section 4(1) sets out the conditions which must be met for a senior constable to make a DAPN.
30.Section 4(1)(a) provides that the senior constable must have reasonable grounds for believing that person A has engaged in behaviour that is abusive of person B. A definition of abusive behaviour is contained at sections 2 and 3.
31.Section 4(1)(b) provides that the senior constable must have reasonable grounds for believing that it is necessary for a DAPO to be made for the purpose of protecting person B from abusive behaviour by person A. Only a sheriff can make a DAPO but this part of the test reflects the fact that a DAPN can only exist as a precursor to an application for a DAPO under section 8(1).
32.Section 4(1)(c) provides that the senior constable must also have reasonable grounds for believing that there is a risk of person A engaging in further abusive behaviour towards person B immediately and it is necessary to make a DAPN to protect person B from that abusive behaviour.
33.Section 4(2) makes clear for the purposes of section 4(1)(c), “immediately” means in the period before the sheriff can make an interim DAPO or a full DAPO.
34.Section 4(3) provides that, in determining whether person A has been abusive towards person B, it does not matter whether the abusive behaviour occurred in Scotland or elsewhere.
35.Section 4(4) sets out the steps which the senior constable must take and factors which the senior constable must take into account before making a DAPN.
36.Section 4(4)(a) provides that they must take such steps as are reasonable in the circumstances to establish whether person A and person B have any views in relation to the notice which they wish to be taken into account, and if so, to obtain those views. It does not need to be the senior constable who personally obtains the views from person A and person B but could, for example, be a constable who attends an incident involving person A and person B.
37.Section 4(4)(b) provides the senior constable must take into account any views of which the senior constable is aware as a result of the duty contained in section 4(4)(a) and the welfare of any child whose interests the senior constable considers to be relevant to the making of a DAPN. In the majority of cases, this is likely to be a child who normally resides with person B.
38.Section 4(5) provides, for the avoidance of doubt, that the senior constable does not require to obtain the consent of person B before making a DAPN.
Section 5 – Content and effect of notice
39.Section 5 sets out what conditions may be included in a DAPN and the period for which it has effect.
40.Section 5(1) provides a list of prohibitions and requirements that may be included in a DAPN. The list is exhaustive and a DAPN cannot include a prohibition or requirement that is not listed in this subsection.
41.Section 5(2) provides that a prohibition or requirement listed at section 5(1) can only be imposed in a DAPN if the senior constable who makes the notice considers that it is necessary to do so to protect person B from abusive behaviour by person A.
42.For example, a senior constable may consider that it is not necessary to require person A to leave a home where person B lives only some of the time, if it appears to the senior constable that person B could live at their other residence for the period in which the DAPN is in effect.
43.Section 5(3) allows the senior constable to make it a requirement of a DAPN for person A, at the time the notice is delivered, to either: provide an address at which person A can be notified with details of the hearing to be held on the application for a DAPO; or undertake to provide such an address within a specified time or to attend a specified police station at a specified time for the purpose of being given notice of the hearing. Person A would then be required to comply with any undertaking given.
44.Section 5(4)(a) generally provides that a DAPN takes effect when it is given to person A in accordance with section 6(4), which requires that it must be delivered in person to person A by a constable. The exception is that the requirement mentioned in section 5(3) takes effect only if and when person A fails to provide an address in response to a request under section 6(5), which places a duty on the constable, when giving the notice, to ask person A for an address at which person A may be given notice of the hearing on the application for a DAPO. Even where the DAPN includes the requirement mentioned in section 5(3) therefore, person A can avoid that particular requirement taking effect by voluntarily providing an address.
45.Section 5(4)(b) provides that a DAPN ceases to have effect in accordance with section 11(9). That section provides that if the sheriff makes a DAPO or interim DAPO at the hearing under section 11(3) then the DAPN ceases to have effect when the sheriff makes the order. If the sheriff does not make a DAPO or interim DAPO at the hearing then the DAPN ceases to have effect when the hearing ends.
46.Section 5(5) makes clear that the term “specified” as contained in section 5(3) means specified by the constable delivering the notice to person A under section 6(4).
Section 6 – Further requirements in relation to notice
47.Section 6 sets out further requirements regarding the content and giving of a DAPN.
48.Section 6(1) provides that a DAPN must be in writing.
49.Section 6(2) sets out the information that must be included in a DAPN.
50.Section 6(2)(a) provides that a DAPN must state that the senior constable who made the notice had reasonable grounds for believing that: person A has engaged in behaviour which is abusive of person B; it is necessary for a DAPO to be made to protect person B from abusive behaviour by person A; and there is a risk of person A engaging in further behaviour which is abusive of person B immediately and it is necessary to make the DAPN to protect B from that behaviour. Section 6(3) makes clear that the reference to “immediately” in section 6(2)(a)(iii) has the same meaning given by section 4(2) which means in the period before the sheriff can make an interim DAPO or a full DAPO.
51.Section 6(2)(b) provides that a DAPN must state that the person against whom it has been made commits an offence if, without reasonable excuse, they fail to do anything that they are required to do by the notice, or do anything which they are prohibited from doing by the notice (see section 7).
52.Sections 6(2)(c) to (g) set out the information about the procedure for applying for a DAPO that requires to be included in a DAPN. It must explain that the police will make an application to the sheriff for a DAPO no later than the first court day after the day on which the DAPN is given to person A, that person A will be given notice of the hearing on the application for a DAPO which, in accordance with section 11(3), will be held no later than the first court day after the day on which the application is made, that the DAPN ceases to have effect when the sheriff makes a DAPO or interim DAPO, or otherwise when the hearing ends and that a DAPO may impose such requirements and prohibitions as the sheriff considers to be necessary for the purpose of protecting person B from abusive behaviour by person A. Section 6(4) requires the DAPN to be given in person to person A by a constable.
53.Section 6(5) places a duty on the constable to ask person A for an address at which they can be contacted in order to give them notice of the hearing on the application for a DAPO. If an address is not voluntarily provided in response to such a request and the DAPN includes the requirement mentioned in section 5(3), person B then becomes obliged to provide such an address (or alternatively to undertake to provide an address at a later point in time or to attend a specified police station at a specified time to be given notice of the hearing).
Section 7 – Offence of breaching notice
54.Section 7 provides that it is a criminal offence for a person to breach the terms of a DAPN without reasonable excuse. The maximum penalty (on summary conviction) is 12 months imprisonment or a fine not exceeding level 3 on the standard scale (or both).
