Criminal Procedure (Scotland) Act 1995

[F1 Non-harassment orders] S

Textual Amendments

F1 S. 234A and cross-heading inserted (16.6.1997) by 1997 c. 40, s. 11; S.I. 1997/1418, art. 2

[F2 234A Non-harassment orders. S

[F3 (1) This section applies where a person is—

(a) convicted of an offence involving misconduct towards another person (“the victim”),

(b) acquitted of such an offence by reason of the special defence set out in section 51A, or

(c) found by a court to be unfit for trial under section 53F in respect of such an offence and the court determines that the person has done the act or made the omission constituting the offence.

(1A) The prosecutor may apply to the court to make (instead of or in addition to dealing with the person in any other way) a non-harassment order against the person.

(1B) A non-harassment order is an order requiring the person to refrain, for such period (including an indeterminate period) as may be specified in the order, from such conduct in relation to the victim as may be specified in the order.]

(2) On an application under subsection [F4 (1A)] above the court may, if it is satisfied on a balance of probabilities that it is appropriate to do so in order to protect the victim from [F5 harassment (or further harassment)], make a non-harassment order.

[F6 (2A) The court may, for the purpose of subsection (2) above, have regard to any information given to it for that purpose by the prosecutor—

(a) about any other offence involving misconduct towards the victim—

(i) of which the [F7 person against whom the order is sought] has been convicted, or

(ii) as regards which the [F8 person against whom the order is sought] has accepted (or has been deemed to have accepted) a fixed penalty or compensation offer under section 302(1) or 302A(1) or as regards which a work order has been made under section 303ZA(6),

(b) in particular, by way of—

(i) an extract of the conviction along with a copy of the complaint or indictment containing the charge to which the conviction relates, or

(ii) a note of the terms of the charge to which the fixed penalty offer, compensation offer or work order relates.

(2B) But the court may do so only if the court may, under section 101 or 101A (in a solemn case) or section 166 or 166A (in a summary case), have regard to the conviction or the offer or order.

[F9 (2BA) The court may, for the purpose of subsection (2) above, have regard to any information given to it for that purpose by the prosecutor about any other offence involving misconduct towards the victim—

(a) in respect of which the person against whom the order is sought was acquitted by reason of the special defence set out in section 51A, or

(b) in respect of which the person against whom the order is sought was found by a court to be unfit for trial under section 53F and the court determined that the person had done the act or made the omission constituting the offence.]

(2C) The court must give the [F10 person against whom the order is sought] an opportunity to make representations in response to the application.]

[F11 (3) A non-harassment order made by a criminal court may be appealed against—

(a) if the order was made in a case falling within subsection (1)(a) above, as if the order were a sentence,

(b) if the order was made in a case falling within subsection (1)(b) or (c) above, as if the person had been convicted of the offence concerned and the order were a sentence passed on the person for the offence.

(3A) A variation or revocation of a non-harassment order made under subsection (6) below may be appealed against—

(a) if the order was made in a case falling within subsection (1)(a) above, as if the variation or revocation were a sentence,

(b) if the order was made in a case falling within subsection (1)(b) or (c) above, as if the person had been convicted of the offence concerned and the variation or revocation were a sentence passed on the person for the offence.]

(4) Any person who is F12 . . . in breach of a non-harassment order shall be guilty of an offence and liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both such imprisonment and such fine; and

(b) on summary conviction, to imprisonment for a period not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both such imprisonment and such fine.

F13 (4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F13 (4B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The person against whom a non-harassment order is made, or the prosecutor at whose instance the order is made, may apply to the court which made the order for its revocation or variation and, in relation to any such application the court concerned may, if it is satisfied on a balance of probabilities that it is appropriate to do so, revoke the order or vary it in such manner as it thinks fit, but not so as to increase the period for which the order is to run.

[F15 (7) For the purposes of this section—

• “harassment” and “conduct” are to be construed in accordance with section 8 of the Protection from Harassment Act 1997 (c.40),

• “ misconduct ” includes conduct that causes alarm or distress.]]

Textual Amendments

F2 S. 234A inserted (16.6.1997) by 1997 c. 40, s. 11; S.I. 1997/1418, art. 2

F3 S. 234A(1)-(1B) substituted for s. 234A(1) (24.4.2017) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), ss. 5(2), 45(2)(3) (with s. 44); S.S.I. 2017/93, reg. 2 (with reg. 4)

F4 Word in s. 234A(2) substituted (24.4.2017) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), ss. 5(3), 45(2)(3) (with s. 44); S.S.I. 2017/93, reg. 2 (with reg. 4)

F5 Words in s. 234A(2) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 15(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F6 Ss. 234A(2A)-(2C) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 15(c), 206(1); S.S.I. 2011/178, art. 2, sch.

F7 Words in s. 234A(2A)(a)(i) substituted (24.4.2017) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), ss. 5(4)(a), 45(2)(3) (with s. 44); S.S.I. 2017/93, reg. 2 (with reg. 4)

F8 Words in s. 234A(2A)(a)(ii) substituted (24.4.2017) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), ss. 5(4)(b), 45(2)(3) (with s. 44); S.S.I. 2017/93, reg. 2 (with reg. 4)

F9 S. 234A(2BA) inserted (24.4.2017) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), ss. 5(5), 45(2)(3) (with s. 44); S.S.I. 2017/93, reg. 2 (with reg. 4)

F10 Words in s. 234A(2C) substituted (24.4.2017) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), ss. 5(6), 45(2)(3) (with s. 44); S.S.I. 2017/93, reg. 2 (with reg. 4)

F11 S. 234A(3)(3A) substituted for s. 234A(3) (24.4.2017) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), ss. 5(7), 45(2)(3) (with s. 44); S.S.I. 2017/93, reg. 2 (with reg. 4)

F12 Words in s. 234A(4) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 49(1)(a), 89; S.S.I. 2003/288, art. 2, Sch.

F13 S. 234A(4A)(4B) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 3(1); S.S.I. 2017/345, art. 3, sch.

F14 S. 234A(5) repealed (1.8.1997) by 1997 c. 48, s. 62(1)(2), Sch. 1 para. 21(30), Sch. 3; S.I. 1997/1712, art. 3 Sch. (subject to arts. 4, 5)

F15 S. 234A(7) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 15(d), 206(1); S.S.I. 2011/178, art. 2, sch.

[F16 234AZA Non-harassment orders: domestic abuse cases S

(1) Section 234A applies subject to this section if an offence referred to in subsection (1) of that section is one listed in subsection (2)(c).

(2) For the purposes of this section—

(a) “victim” has the same meaning as it has in section 234A,

(b) “child” has the same meaning as given by section 5(11) of the Domestic Abuse (Scotland) Act 2018,

(c) the list is—

(i) an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018,

(ii) an offence that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

(3) A non-harassment order in the person's case may include provision for the order to apply in favour of any of the following, in addition to the victim—

(a) in any circumstances, a child usually residing with the person or a child usually residing with the victim (or a child usually residing with both the person and the victim),

(b) where the offence is one under section 1(1) of the Domestic Abuse (Scotland) Act 2018, and is aggravated as described in section 5(1)(a) of that Act, a child to whom the aggravation relates,

if the court is satisfied that it is appropriate for the child to be protected by the order.

(4) The court must—

(a) without an application by the prosecutor, consider whether to make a non-harassment order in the person's case,

(b) after hearing the prosecutor as well as the person, make such an order unless of a negative conclusion on the question,

(c) if of a negative conclusion on the question, explain the basis for this.

(5) Here, a negative conclusion on the question is the conclusion by the court that there is no need for—

(a) the victim, or

(b) the children (if any) in mind by virtue of subsection (3),

to be protected by such an order.

(6) In the operation of section 234A along with subsection (4)—

(a) subsection (1A) of that section is of no effect (and the reference in subsection (2) of that section to an application under subsection (1A) of that section is to be ignored),

(b) further—

(i) the references in subsections (2A), (2BA) and (2C) of that section to the person against whom the order is sought are to be read as being to the person in whose case the making of a non-harassment order is being considered,

(ii) the reference in subsection (2C) of that section to representations in response to the application is to be read as being to representations on the question of whether to make a non-harassment order,

(iii) the reference in subsection (6) of that section to the prosecutor at whose instance the order is made is to be read as being to the prosecutor in the case in which the non-harassment order is made.

(7) For the avoidance of doubt, nothing in this section affects the ability to make a non-harassment order in the case instead of or in addition to dealing with the person in any other way.]

Textual Amendments

F16 S. 234AZA inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5), s. 15(2), sch. para. 9(2); S.S.I. 2018/387, reg. 2 (with reg. 7)