Civil Partnership Act 2004

116 Procedure after arrest S

(1) The provisions of this section apply only where—

(a) the non-applicant civil partner has not been liberated under section 115(1), and

(b) the procurator fiscal decides that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.

(2) The non-applicant civil partner who has been arrested under section 114(4) is wherever practicable to be brought before the sheriff sitting as a court of summary criminal jurisdiction for the district in which that civil partner was arrested not later than in the course of the first day after the arrest, such day not being a Saturday, a Sunday or a court holiday prescribed for that court under section 8 of the Criminal Procedure (Scotland) Act 1995 (c. 46).

(3) Nothing in subsection (2) prevents the non-applicant civil partner being brought before the sheriff on a Saturday, a Sunday or such a court holiday when the sheriff is, in pursuance of that section of that Act, sitting for the disposal of criminal business.

(4) Subsections (1) to (3) of section 15 of that Act (intimation to a named person) apply to a non-applicant civil partner who has been arrested under section 114(4) as they apply to a person who has been arrested in respect of any offence.

(5) The procurator fiscal is at the earliest opportunity, and in any event prior to the non-applicant civil partner being brought before the sheriff under subsection (2), to take all reasonable steps to intimate—

(a) to the applicant civil partner, and

(b) to the solicitor who acted for that civil partner when the interdict was granted or to any other solicitor who the procurator fiscal has reason to believe acts for the time being for that civil partner,

that the criminal proceedings referred to in subsection (1) will not be taken.

(6) On the non-applicant civil partner being brought before the sheriff under subsection (2) (as read with subsection (3)), the following procedures apply—

(a) the procurator fiscal is to present to the court a petition containing—

(i) a statement of the particulars of the non-applicant civil partner,

(ii) a statement of the facts and circumstances which gave rise to the arrest, and

(iii) a request that the non-applicant civil partner be detained for a further period not exceeding 2 days,

(b) if it appears to the sheriff that—

(i) the statement referred to in paragraph (a)(ii) ostensibly discloses a breach of interdict by the non-applicant civil partner,

(ii) proceedings for breach of interdict will be taken, and

(iii) there is a substantial risk of violence by the non-applicant civil partner against the applicant civil partner or any child of the family,

he may order the non-applicant civil partner to be detained for a further period not exceeding 2 days, and

(c) in any case to which paragraph (b) does not apply, the non-applicant civil partner is, unless in custody in respect of any other matter, to be released from custody.

(7) In computing the period of 2 days referred to in paragraphs (a) and (b) of subsection (6), no account is to be taken of a Saturday or Sunday or of any holiday in the court in which the proceedings for breach of interdict will require to be raised.