Taking out abuse

The main provisions of the Protection from Abuse (Scotland) Act 2001 and an appeal by the Society for practitioners' experiences of its working

The Journal, September 2004, page 42

For the client who comes into the office with a tale of being on the receiving end of frightening or aggressive behaviour, whether from a spouse, partner or someone outside the immediate family, the obvious option is the protection of an interdict. An anti-molestation interdict offers limited protection, but the addition of a power of arrest can be a helpful additional layer of protection. Until recently, the added protection of a power of arrest was only available for those who were being abused by a spouse or cohabitee. In November 2001 the Protection from Abuse (Scotland) Act (which had started life as the first “Committee Bill” of the Scottish Parliament’s Justice 1 Committee) quietly became part of Scots law. There was little fanfare, and while specialist family law practitioners are well aware of the change, those who do less work in this area may not be so familiar with the options provided by this valuable legislation.

Under section 14(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 a spouse was able to apply to the court for a matrimonial interdict, and if circumstances warranted, for the attachment of a power of arrest under section 15. The major flaw of the Act was that the power of arrest fell when the parties divorced. All too often the solicitor would have to advise a client that while the sheriff had granted the power of arrest, it would only last a few weeks until the divorce was granted. Many clients may have wondered what on earth the point of it was. The limitation of the granting of powers of arrest to anti-molestation interdicts between spouses or cohabitees was another major disadvantage.

Section 1(2) of the new statute improves matters greatly. A power of arrest is available, where circumstances warrant, for anyone who is applying for an anti-molestation interdict. The parties do not have to be spouses or cohabitees. The procedure is very much the same as the older law. A solicitor should still apply for the attachment of the power of arrest in the same way, although it is necessary to narrate in the crave that it is a power of arrest in terms of the relevant section of the Act. A standard crave is likely to be along these lines: “and to grant interim interdict and to attach a power of arrest to the said interdict and interim interdict in terms of section 1(2) of the Protection from Abuse (Scotland) Act 2001 and that for a period of three years from the date of the attachment of the said power of arrest”.  

 The Act has been embraced in the Borders with what the sheriff clerk there describes as “considerable enthusiasm”, and it would be helpful to know more about the situation across Scotland. It should be noted that not all practitioners make it clear in the writ which Act they are relying on. The writ should specify to the court that the 2001 Act is being applied.

Section 1(1) reads: “A person who is applying for, or who has obtained, an interdict for the purpose of protection against abuse may apply to the court for a power of arrest to be attached to the interdict under this Act.” The Act describes the test at section 1(2)(c) very simply as “necessary to protect the applicant from a risk of abuse in breach of the interdict”. An essential difference from the old law is that the new legislation has reversed the burden from the defender to the pursuer. Under the 1981 Act it was required that the defender should give sufficient cause why the power of arrest should not be attached.  The 2001 Act requires the pursuer to show that a power of arrest is necessary.

The power of arrest can only be attached if the interdicted person has been given an opportunity to be heard by, or represented before the court. As with the 1981 Act, a power of arrest under the 2001 Act is not effective until it has been served on the chief constable. It is important to note that it is not possible to apply for a power of arrest under the 1981 Act and the 2001 Act in the same writ. Section 2(3) of the Act allows for the power of arrest to be extended if it is necessary to protect the applicant from the risk of abuse, but again only after the defender has had the opportunity of addressing or being represented in court. The extension is not effective until served, and the court must “specify a new date of expiry for the power, being a date not later than three years after the date when the extension is granted” (section 2(4)).

If the application for interdict and power of arrest is part of a divorce action, it is essential at decree stage to ask the court to continue the power of arrest for a period of three years in terms of the Act. This is in effect a new interdict and power of arrest, which then must be served again on the defender and the chief constable.

The 2001 Act makes provision for the lifting of the power of arrest. The language of the statute is rather strongly worded. Section 2(7) says that “the power of arrest must [my italics] be recalled if (a) the person who obtained it applies for recall, or (b)… the power is no longer necessary to protect that person from a risk of abuse in breach of the interdict”. There is at least one recent case of recall of a power of arrest where the pursuer was abusing the power of arrest. The procedure is to minute under the original action, to vary the interlocutor. It would be wise, in the case of an applicant who was legally aided in the original action, to check with SLAB as to whether a new legal aid application is necessary, or whether it can be done under the original certificate.

There is no doubt that the 2001 power of arrest is more useful than that under the 1981 Act, and has a much wider application. The Act does specify in some detail in section 4 the powers and duties of the police, and in section 5 the court appearance of any person detained under the Act. If someone is arrested under the power of arrest, and the procurator fiscal decides that no criminal proceedings are to be brought, the matter does not end there. The detained person must appear at court not later than the first court day after the arrest. The procurator fiscal must narrate the particulars, facts and circumstances, and any other relevant information that he or she may have, and request the court to consider whether “on the information presented, a further period of detention is justified” (section 5(3)(a)-(e)). The sheriff can order a further period of detention of up to two days.

If you have had recent experience of the operation of the Protection from Abuse (Scotland) Act 2001, please contact Michael P Clancy, Director, Law Reform at the Society either in writing to 26 Drumsheugh Gardens, Edinburgh EH3 7YR (Legal Post: LP – 1, Edinburgh 1) or by email to moiragoll@lawscot.org.uk.

Morag Driscoll, Council Member, Convener of Law Reform Committee and Convener of Family Law Subcommittee