Protective orders for people at risk of domestic abuse: consultation

Part One: Measures to Protect Those at Risk of Domestic Abuse

Introduction

1.1 In February 2018, the Scottish Parliament passed the Domestic Abuse (Scotland) Act 2018, which will, when it comes into force in 2019, provide for a specific statutory offence of domestic abuse. The offence will cover all the types of behaviour that can constitute domestic abuse. Crucially, this includes psychological harm as well as physical harm. While physical harm can be prosecuted using, for example, common law assault and overt threats can be prosecuted using, for example, the statutory offence of threatening or abusive behaviour, psychological harm can be very challenging to prosecute using existing laws. The introduction of this new offence will help address this gap in the criminal law.

1.2 During the passage of the Domestic Abuse Bill, in response to the call for evidence at Stage 1, a number of third sector respondents raised concerns that there is a gap in protection available to victims of domestic abuse. A person wishing to obtain immediate or long-term protection, particularly in relation to keeping a perpetrator away from their home, can only obtain such protection if the perpetrator enters the criminal justice system or if the victim takes out a civil order against the perpetrator.

1.3 In their Stage 1 report^[1], the Scottish Parliament's Justice Committee welcomed the then Cabinet Secretary's undertaking to engage further with third sector organisations on proposed "emergency barring orders" (EBOs), which would ban a perpetrator of abuse from the home of the victim for as long as is considered necessary to secure the victim's safety and indicated that they would take evidence on this issue at Stage 2.

1.4 As part of their consideration of the Bill, the Justice Committee held an evidence session^[2] on these issues in October 2017, taking evidence from Police Scotland, Scottish Women's Aid, the Law Society of Scotland, and Professor Mandy Burton.

1.5 Following that evidence session, the then Cabinet Secretary for Justice wrote to the Justice Committee in November 2017, setting out how the Scottish Government intends to consider these issues. In that letter, he stated that a consultation would be published in 2018 and that it would seek views on questions about how policy to provide for relevant powers to protect those at risk of domestic abuse might be developed.

Background

What are barring orders?

1.6 Barring orders are an immediate, short-term order which remove a suspected perpetrator^[3] of abuse from the home of a person at risk of abuse. They may also prohibit that person from contacting the person at risk^[4].

1.7 They are intended to provide protection to a person at risk of abuse in the immediate term. In the longer term, the person at risk may consider seeking a civil protective order, such as a non-harassment order or an exclusion order. Where, following investigation, the police determine there is sufficient evidence to charge the suspected perpetrator with a criminal offence, the disposal upon conviction for a criminal offence may include as part of any disposal measures to put more long-term protection in place for the person at risk.

1.8 Evidence from other jurisdictions indicates that these short-term protective orders are most effective when they are accompanied by facilitation of access to support services for the person at risk, to advise them on the options they have for ensuring they are protected in the medium to longer term.

International and domestic obligations on domestic abuse

1.9 Measures to enable the police, the courts and/or other authorities to remove a suspected perpetrator of domestic abuse from the person at risk's home are required under the Council of Europe Convention on Action Against Violence Against Women and Domestic Abuse ("the Istanbul Convention"). Article 52 of the Istanbul Convention requires states party to the convention to have in place:

"…measures to ensure that the competent authorities are granted the power to order, in situations of immediate danger, a perpetrator of domestic violence to vacate the residence of the victim or person at risk for a sufficient period of time and to prohibit the perpetrator from entering the residence of or contacting the victim or person at risk."

1.10 A paper published by the Council of Europe in June 2017, Emergency Barring Orders in Situations of Domestic Violence: Article 52 of the Convention^[5] noted that (emphasis added):

"A distinct advantage of Emergency Barring Orders (EBOs) is that they are less restrictive on the rights and freedoms of those upon whom they are imposed than alternative means of protection for victims, such as arrest and detention…EBOs, as required by the Istanbul Convention, are protective measures that require a 'paradigm shift' in understanding interventions to protect victims from domestic violence. Rather than asking victims to seek a place of safety from the violence, it shifts the burden to the perpetrator, who is ordered to leave the residence of the victim or person at risk and not to contact her or him".

1.11 Articles 2 and 3 of the European Convention on Human Rights (ECHR) protect the right to life and prohibit torture or inhuman or degrading treatment or punishment. In previous cases, the European Court has ruled^[6] that states have a duty to take reasonable steps to protect individuals whose life or well-being is at risk as a consequence of domestic abuse. As such, there is an overarching duty under the ECHR for states to put in place mechanisms to protect the life and well-being of a person who is at risk of domestic abuse.

Current criminal and civil protective powers and remedies in Scotland

Police and court powers

1.12 In the context of a criminal investigation, there are a number of existing powers that the police and courts can use to remove a suspected perpetrator of domestic abuse from the home of a person at risk.

1.13 Where a suspected perpetrator of domestic abuse has been charged with a criminal offence, the police can release them on what is known as an 'undertaking' prior to a bail hearing. An undertaking is in place until the accused person first appears in court and such undertakings can include a condition imposed by the police that may require the accused person not to approach the complainer and/or not to return to their shared place of residence.

1.14 Equally, once an accused person appears in court (either immediately after being charged, or following release on undertakings), the court can remand a suspect in custody prior to trial. There is a statutory presumption in favour of granting bail to an accused person, but this may be over-ridden where certain criteria are met, including, for example, where the court has reason to believe that the individual may interfere with witnesses or there are reasonable grounds to believe the accused person would commit further offences before their trial.

1.15 It is worth noting that provisions in the Domestic Abuse (Scotland) Act 2018 will, when they come into effect, add domestic abuse offences^[7] to the list of offences where, if the accused has previously been convicted on indictment and is charged on indictment with a further offence, there is a presumption against bail, with it being granted only in exceptional circumstances.

1.16 Where a court decides to release a suspect on bail, the court will impose standard bail conditions and can, in addition, add special bail conditions. These special bail conditions could require that the accused person does not attempt to approach or contact the complainer, or return to a place of residence that they share with the complainer.

Civil remedies

1.17 There are a number of civil remedies available to a person who is at risk of domestic abuse. For example, in certain circumstances, it is possible for a person at risk to apply to a court for a civil order (an 'exclusion order') to exclude the perpetrator from a shared home. Paragraphs 2.1-2.51 of this consultation discuss whether changes should be made to the legislation concerning exclusion orders.

1.18 It is also possible for a person at risk of domestic abuse to apply for an interdict or for a non-harassment order (NHO). An interdict or NHO can include conditions such as prohibiting the subject of the order from phoning, texting or otherwise attempting to contact the person who has taken out the order, approaching or following them, or loitering outside their home or place of work.

Imposition of measures to protect a person at risk of domestic abuse in other jurisdictions

1.19 Powers to protect persons at risk of domestic abuse without the need for the suspected perpetrator to enter the criminal justice system, or for the person at risk to apply for a civil order, have been introduced in a number of jurisdictions across Europe. They are sometimes referred to as "emergency barring orders."

1.20 In jurisdictions which have implemented powers to bar a suspected perpetrator from returning to a home that they share with the person at risk, there are essentially two different approaches taken to how these operate.

1.21 Some jurisdictions, such as the Netherlands, Austria and England and Wales, allow an 'administrative order' to be made by the 'competent authority' (usually the police, though in some jurisdictions, it is the local authority/mayoralty) which takes immediate effect without first being approved by a court. This order usually runs for a short period of time during which the competent authority can apply to the court to put an order in place for a longer period of time. In England and Wales, such orders are referred to as "Domestic Violence Protection Notices" and "Domestic Violence Prevention Orders" and are provided for in the Crime and Security Act 2010.

1.22 In other jurisdictions, including Bulgaria and Spain^[8], an order requiring a suspected domestic abuser to vacate a home shared with the person at risk requires to be made by a court before it takes effect.

Implementing Protective Orders in Scotland

Power to impose an immediate administrative order

1.23 As noted above, a number of jurisdictions which have introduced protective orders to remove a suspected perpetrator from the person at risk's home have provided a mechanism whereby the competent authority can make an 'administrative' order which puts in place measures to protect a person at risk of domestic abuse immediately, without first having to be approved by a court.

1.24 A paper published by the Council of Europe noted that "The Istanbul Convention leaves it to the discretion of states parties to decide whether they allocate the task of issuing EBOs to the police, the court, or some other authority, and whether the procedure has an administrative, criminal or civil nature." However, the paper goes on to observe of jurisdictions where an order can only take effect after it has been approved by a court that "In the absence of administrative EBOs, this solution presents several disadvantages. The protection can hardly be provided immediately, unless courts are accessible around the clock, which is rarely the case."

1.25 In England and Wales, sections 24-33 of the Crime and Security Act 2010 provide police forces with a power to issue a suspected perpetrator with a Domestic Violence Prevention Notice (DVPN) when attending to a domestic abuse incident. A DVPN is issued by the police and runs for a period of 48 hours, effective from the time of issue. This order may prohibit the suspected perpetrator from returning to the home of the person at risk, or from making contact or otherwise harassing or abusing, the person at risk.

1.26 While there are some jurisdictions, such as the Netherlands, where the formal power to make an administrative order to protect a person at risk of domestic abuse rests with the municipal authorities, we understand that in such circumstances, the municipal authority would usually act on the advice of the police. In view of the police's role in responding to incidents of domestic abuse, the Scottish Government's initial view is that any power to make an administrative order should rest with the police, rather than another body.

Question 1: Do you think the police should have the power to bar a person from a home that they share with a person at risk of domestic abuse for a period of time and prohibit them from contacting that person, without the need to obtain court approval?

If you wish, please give reasons for your answer.

Length of time for which an administrative order should run

1.27 In England and Wales, an application by police to a magistrates' court for a Domestic Violence Prevention Order (DVPO) must be heard within 48 hours or else the DVPN ceases to have effect.

1.28 It is understood that there has been some concern expressed^[9] that the 48 hour period for which an initial, police-issued DVPN runs in England and Wales is too short and does not provide the police and support agencies with sufficient time to prepare an application to a court. In this regard, it is worth noting that in the Netherlands, a municipality-issued administrative order can run for an initial period of 10 days, which can be extended for up to 28 days and in Austria, a police-issued administrative order can run for 2 weeks with the possibility of prolonging to four weeks if the person at risk applies for a civil court protection order.

1.29 It has been suggested that the short period for which these administrative orders are able to run has resulted in police in England and Wales being reluctant to make use of them and that extending this period to a longer period such as, say, 7 days or 14 days would improve their effectiveness.

1.30 Set against this, there is a need to consider how long it is reasonable to a bar a suspected perpetrator whom the police suspect may pose a risk, but who has not been charged with any criminal offence, from their own home, without that order being considered and approved by a court.

1.31 Such an order may constitute an interference in the right of the suspected perpetrator to a private and family life under Article 8 of the ECHR. Any interference in that right must be "in accordance with law" and "necessary in a democratic society". In considering whether such interference is necessary and proportionate, the extent to which it is required to secure the article 2 and 3 rights of the person at risk would have to be considered.

Question 2: If the police are given a power to put in place measures to protect a person at risk of domestic abuse for a period of time, we would welcome views on how long that period should be.

If you wish, please give reasons for your answer.

Power for Courts to impose Protective Barring Order

1.32 As noted above, if powers are given to the police to impose an immediate measure to protect someone at risk of domestic abuse, it is considered important that a court is involved in considering whether protective measures should remain in place. Equally, if you consider that the police should not be given powers to impose an order to protect a person at risk without the approval of a court, then it is still considered important that the courts are given powers to impose measures to protect those at risk of domestic abuse by barring a suspected perpetrator from their home for a period of time.

1.33 There are some issues to consider in respect of the length of time that the protective order imposed by the court can last. As noted earlier in the consultation, equivalent provisions in other jurisdictions are considered a short-term emergency measure to protect a person at risk in the immediate term. The intention is that this provides time for the person at risk to take steps to secure their safety in the longer term. This might include, for example, that person taking out a civil order such as an exclusion order. Alternatively, if the suspected perpetrator becomes subject to criminal proceedings, bail conditions can be put in place at the discretion of the court which can include measures to protect the person at risk.

1.34 In England and Wales, where a magistrates court grants a DVPO, and in Austria, where the victim applies for a civil injunction, such an order can currently run for up to 28 days, though the UK Government have recently consulted on whether courts' powers should be expanded so that such orders can run until such time as a further court order is made^[10]. In Spain, preliminary measures are usually provided for 30 days. After that the measures can be prolonged at the request of the victim. In Bulgaria emergency protective measures can be issued for a period ranging from one month to one and a half years.

Question 3: Do you agree that the courts should be given powers to make an order to protect a person at risk of domestic abuse by prohibiting the person posing the risk from returning to the person at risk's home while the order is in force?

If you wish, please give reasons for your answer.

Question 4: If the courts are given a new power to impose measures to protect a person at risk of domestic abuse, we would welcome views on whether there should be a maximum period of time beyond which such measures would not apply and, if so, what that period should be.

If you wish, please give reasons for your answer.

Who should be able to apply to the courts for a protective order?

1.35 Existing civil protective orders, such as interdicts, NHOs and exclusion orders, are applied for by the person seeking protection through the civil courts. An important element of the proposal that courts should be able to impose measures to protect a person at risk of domestic abuse is that the person at risk is not required to make the application to the court themselves. This reflects the fact that a person experiencing domestic abuse may lack the resources, financial or otherwise, to make a court application, or may be subject to coercive and controlling behaviour to such an extent that they would find it very difficult to do so.

1.36 In England and Wales, the police apply to the courts for a DVPO on behalf of the person at risk. However, the UK Government recently consulted^[11] on proposals to widen the range of people who can apply to the court for such an order. They have sought views on whether the person at risk, family members of the person at risk, local authority social care professionals, and specialist third sector support services, should also be able to apply to the court for a protective order. They also sought views on whether the criminal courts should be able to impose such an order following the conviction or acquittal of an accused person.

1.37 In their consultation document, the UK Government note that this would mean that Domestic Abuse Protection Orders could be made in family, civil and criminal courts. By enabling these orders to be made across all jurisdictions they intend to provide flexibility and improve how the different jurisdictions can respond to domestic abuse.

1.38 There may be advantages to allowing a range of relevant people and bodies to make an application to the court for a protective order. This could be particularly important where a person at risk is, for whatever reason, reluctant to involve the police. In contrast with an emergency administrative order, the court can act as a gate-keeper so as to ensure that an order is not made in circumstances where it is inappropriate to do so.

1.39 However, it is possible that allowing a person at risk or their family members to apply for such an order (rather than having the police act as a 'gatekeeper') could increase the risk that perpetrators of domestic abuse could themselves seek to use this process to remove a victim of domestic abuse from a shared home. If, as the UK Government are proposing in England and Wales, the right to apply for such an order is to be given to family members of the person at risk, we consider that it would be important to ensure that there is a means by which the person at risk's own views can be taken into account by the court when deciding whether to make an order.

Question 5: We would welcome views on which bodies and/or people should be able to make an application to a court to impose measures to protect a person at risk of domestic abuse.

If you wish, please give reasons for your answer.

Question 6: Do you think a criminal court should be able to impose measures to protect a person at risk of domestic abuse that would bar a perpetrator from a shared home for a period of time, when sentencing the offender.

If you wish, please give reasons for your answer.

Question 7: Where an application is made to the court for measures to protect a person at risk of domestic abuse by someone other than the person at risk, should the consent of the person who may be at risk be required for such an order to be made?

If you wish, please give reasons for your answer.

Who should be covered by a protective order?

1.40 The definition of domestic abuse used by Police Scotland and the Crown office and Procurator Fiscal Service for the purpose of investigating and prosecuting such conduct is^[12]:

"Any form of physical, verbal, sexual, psychological or financial abuse which might amount to criminal conduct and which takes place within the context of a relationship.

The relationship will be between partners (married, cohabiting, civil partnership or otherwise) or ex-partners. The abuse can be committed in the home or elsewhere including online."

1.41 As such, domestic abuse is defined as relating to abuse by a partner or ex-partner. This definition is not the exact definition found within the criminal law in relation to domestic abuse. However, the criminal offence of domestic abuse at section 1 of the Domestic Abuse (Scotland) Act 2018 and statutory aggravation at section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 also apply where the perpetrator and victim are either partners or ex-partners.

1.42 This approach reflects the fact that abuse of partners and ex-partners has a particular dynamic that differs from violence or abuse that occurs generally and may occur within a family between, for example, siblings or parents and adult children. There was a concern that extending the legislation to cover other familial relationships could lead to a dilution and diminution of the understanding of and response to domestic abuse.

1.43 Different approaches have been taken in different jurisdictions as to who can be protected by a system which provides protection to those at risk of abuse by preventing the suspected perpetrator from returning to the person at risk's home. These approaches have tended to reflect the different ways in which domestic abuse is defined in different jurisdictions.

1.44 For example, in England and Wales, DVPNs and DVPOs can be served on anyone who is an 'associated person' within the meaning of section 62 of the Family Law Act 1996. This includes partners and ex-partners, but also other family members and people who are members of the same household, other than because one is the other's employee, tenant, lodger or boarder.

1.45 In the Netherlands, a barring order can be issued to protect a person living in the same household as the subject of the order, and it is not a requirement that they are partners or ex-partners, and an order cannot be made to protect a non-resident partner or ex-partner.

1.46 In Austria, a barring order can be issued to provide protection to any person at risk of immediate danger. There is no requirement that the person at risk and person posing the risk are or have been in a relationship, or that they live together. As such, orders can be used to provide protection to suspected victims of stalking, to persons at risk from an acquaintance or family member, or to someone living in a house in multiple occupation who is at risk of violence from someone they are living with.

1.47 However, restricting the circumstances in which such protective orders can be made to partners and ex-partners would have the advantage of locating these powers within the justice system's understanding of domestic abuse. It would also enable the criteria to be used by the police and courts in assessing risk and deciding whether to make such an order to be tailored so as to reflect the kind of coercive and controlling behaviours that can indicate serious risk in cases involving partner abuse.

Question 8: We would welcome views as to which persons should be capable of being made subject to measures to protect a person at risk of domestic abuse. Should such protection be limited to providing protection from abuse by a partner or ex-partner. If not, what other relationships or circumstances should be covered by such provisions?

If you wish, please give reasons for your answer.

What test should the police and courts use in deciding whether to make an order?

1.48 A key aspect of the introduction of new protective measures is the test that is to be applied by the courts or police in deciding whether to make an order to put such measures in place in any given case.

1.49 Different jurisdictions have taken different approaches to this. For example, in England and Wales, the police and courts can make a DVPN or DVPO against a person where there are reasonable grounds for believing that the person against whom the order is sought:

• has either used violence or threatened violence against the person to be protected; and
• that an order is required to protect that person from violence.

1.50 The UK Government recently consulted on proposals which would expand the circumstances in which such an order could be made so that it is linked to their proposed statutory definition of domestic abuse^[13], thereby extending its application to cases involving abuse other than violence or the threat of violence.

1.51 In Austria, a barring order can be made where the police believe that there is an imminent danger to the life, health or freedom of the person at risk. In Bulgaria, an order can be in cases of domestic violence defined as "any act or attempted act of physical, mental or sexual violence, as well as the forcible restriction of individual freedom or privacy". The violence must have occurred within one month before the application for a protection order.

1.52 In the Netherlands, the police can make an emergency order to protect a person "at serious and imminent risk" as a result of a standard risk assessment instrument used by a police officer. In Spain, a court can make a protective order where they conclude there is an objective risk to the life, physical sexual or moral integrity of the person at risk.

1.53 The new criminal offence of domestic abuse at section 1 of the Domestic Abuse (Scotland) Act 2018 explicitly recognises the range of behaviours that can constitute domestic abuse, including behaviours amounting to coercive and controlling behaviour and psychological abuse. It criminalises a person who engages in a course of abusive behaviour which:

• is likely to cause the victim to suffer physical or psychological harm; where
• the perpetrator either intends to cause such harm, or else is reckless as to whether such harm is likely to result from their course of behaviour

1.54 The offence in the 2018 Act provides a non-exhaustive, illustrative definition of what constitutes "abusive behaviour". It includes behaviour which is "violent, threatening or intimidating" and behaviour which has its purpose, or is likely to have any of the following effects on the victim:

• Making the victim dependent on or subordinate to the perpetrator;
• Isolating the victim from friends, relatives or other sources of support;
• Controlling, regulating or monitoring the victim's day-to-day activities;
• Depriving the victim of, or restricting the victim's freedom of action; or
• Frightening, humiliating, degrading or punishing the victim.

1.55 There may be scope to adapt the definition of 'domestic abuse' in this offence to provide a test to be used by the police and courts to determine whether measures to protect people at risk of domestic abuse are necessary.

1.56 However, the domestic abuse offence in the 2018 offence was designed to be applied by a criminal court, where evidence of what happened requires to be corroborated and is tested to the criminal standard of proof.

1.57 In this regard, it is worth considering the tests used in existing provisions which enable certain other protective orders to be made. A Risk of Sexual Harm Order under the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 can be imposed where the court is satisfied that the accused has done certain acts, irrespective of whether they have resulted in a criminal conviction and the order is necessary to protect a child or children generally from harm.

1.58 Another relevant order-making power is the court's power to make a Banning Order under the Adult Support and Protection (Scotland) Act 2007. This order provides protection to "adults at risk" who by reason of disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected. It provides that an order can be made if the adult at risk "is being, or is likely to be, seriously harmed by another person."

1.59 We would welcome views as to what would be an appropriate test that can be used to determine whether a protective order should be made for a person at risk of domestic abuse.

Question 9: We would welcome views on what you think the test should be for deciding whether to impose measures to protect a person at risk of domestic abuse. In particular, do you think it should be a requirement that the person against whom the order is sought must have used or threatened violence against the person to be protected by the order, or do you think a wider test covering our modern understanding of what constitutes domestic abuse (i.e. behaviour likely to cause psychological, as well as physical, harm) should be used?

If you wish, please give reasons for your answer.

The conditions that can be imposed as part of measures to protect those at risk of domestic abuse

1.60 The primary purpose of the measures to protect a person at risk is to remove a suspected perpetrator from the home of the person at risk for a period of time and prohibit them from returning to, entering or approaching the home. The power to impose conditions similar to those in the Matrimonial Homes (Family Protection) (Scotland) Act 1981, which prohibit a person from damaging the property or from removing the property or personal effects of the person at risk would supplement this.

1.61 However, in order to ensure that the person at risk is protected, it is considered important that such an order can also be used to prohibit the subject of the order from approaching or contacting the person at risk outside of their home, for example at their place of work, study or at their friends or relatives' homes.

1.62 It is currently the case that conditions of this kind can be imposed where a person applies for an interdict or a Non-Harassment Order. Where the police or courts consider that measures are necessary to protect a person from the risk of domestic abuse, the person at risk should not have to go through a separate court process in order to prevent the subject of the measures from making contact with them or harassing them away from their home.

1.63 With this in mind, it would seem appropriate that the measures to protect a person at risk of domestic abuse should be capable of being used to bar a suspected perpetrator from contacting the person to be protected by the order, or to require the person not to approach certain specified locations (such as the person at risk's place of work, or relatives' homes).

Question 10: We would welcome views as to whether, as well as prohibiting the subject of the order from entering the person at risk's home, it should also be possible to impose conditions on the subject of the order to prevent them from contacting or approaching the person at risk, or prohibiting them from entering other specified locations (such as the person at risk's place of work or relatives' homes).

If you wish, please give reasons for your answer.

1.64 It is the case that those who pose a risk of domestic abuse will often direct behaviour at others such as children of the person at risk in order to exert control and to further their abuse. This is just one of the ways in which children are victims of domestic abuse.

1.65 The Domestic Abuse (Scotland) Act 2018 strengthened powers for courts to impose Non-Harassment Orders in domestic abuse criminal cases so as to enable provision to apply in favour of a child usually residing with the victim or perpetrator (or both, where they live at the same address) as well as the person directly against whom the domestic abuse has been perpetrated.

1.66 It is considered there is a case for enabling the police and courts to be able to impose conditions to protect any children under the age of 18 who live with the person at risk, both to reduce the risk that the suspected perpetrator will target behaviour at children to further the abuse, and to ensure that those children are themselves protected.

Question 11: Do you agree that, as well as enabling measures to be imposed to protect the person at risk, it should also be open to the police and courts to impose conditions requiring the subject of the order not to approach or contact any children living with the person at risk?

Sanction for breach of conditions imposed as part of measures to protect a person at risk of domestic abuse

1.67 Different jurisdictions that have legislated for measures to protect those at risk of domestic abuse have taken different approaches to the penalty for breaching such measures.

1.68 In England and Wales, breach of a DVPO or DVPN is a civil matter. A person who breaches a civil order can be found in contempt of court, which can result in a fine or imprisonment, though in their 2018 consultation, the UK Government seek views on proposals to criminalise breach of a DAPO (the proposed replacement for a DVPO).

1.69 In Austria, breach of an Emergency Barring Order results in an administrative fine of up to 500 euros and repeated breaches can lead to arrest.

1.70 In Spain, the Netherland and Bulgaria, breach is a criminal offence.

1.71 In Scotland, there are well-established precedents for breach of a civil court order being a criminal offence (e.g. anti-social behaviour orders, sexual risk orders, human trafficking orders etc.).

1.72 It is less common for a criminal offence to be committed as a result of failure to obey an administrative order issued without any court process. However, there are examples concerning 'emergency' orders issued by the police prior to their being confirmed by a court which may be of relevance. For example, breach of a closure notice issued by the police under section 26 of the Antisocial Behaviour (Scotland) Act 2004 is a criminal offence, as is breach of an 'emergency closure order' issued by the police on a licensed premises under section 97(2) of the Licensing (Scotland) Act 2005.

1.73 On the one hand, requiring breach to be proven to a criminal standard of proof for action to be taken against the subject of the order may in some circumstances make it more difficult to take action. However on the other hand, the possibility of a criminal conviction for breaching the terms of measures imposed to protect a person at risk is likely to provide a substantially greater deterrent and, as such, may help to ensure that those made subject to an order comply with it. Equally, if breach of an order is an offence, police would have powers, such as being able to enter a property when an offence has been suspected, that otherwise may not be available. This may provide reassurance to those being protected by such measures that enforcement will be a key element of the operation of the orders.

1.74 The similarities between measures to protect those at risk of domestic abuse and non-harassment orders has been noted above. Breach of a non-harassment order is a criminal offence punishable by a prison sentence of up to 5 years in custody.

Question 12: We would welcome views on whether it should be a criminal offence to breach measures put in place to protect a person at risk of domestic abuse.

If you wish, please give reasons for your answer.

Question 13: If you think breach of such measures should be a criminal offence, we would welcome views on what you think the maximum penalty should be.

If you wish, please give reasons for your answer.

Support for those at risk of domestic abuse

1.75 Measures to protect those at risk of domestic abuse are intended as a direct intervention to ensure the safety of a person considered to be at risk of harm.

1.76 In order to ensure their safety in the long term, a person may need to consider whether to take steps such as, for example, seeking an exclusion order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or the Civil Partnership Act 2004, an interdict, a Non-Harassment Order or other measures that may best suit their particular circumstances.

1.77 In order to enable persons at risk to make an informed decision regarding the most appropriate course of action, it is important that they have access to advice from services specialising in supporting those who have experienced domestic abuse. In many countries that have legislated in this area, the police officer progressing consideration of measures to protect a person at risk of domestic abuse will also act as a point of contact between that person and an agency offering support and assistance.

1.78 There are existing referral mechanisms in place between Police Scotland and domestic abuse advocacy services which may provide a model for how people can be directed to appropriate support.

Question 14: We would welcome views on whether there should be a statutory duty on the police, when making an application to the courts, or putting in place protective measures, to refer a person at risk to support services and, if so, how this should operate

If you wish, please give reasons for your answer.

1.79 A person who is barred from their home by the imposition of protective measures may become homeless as a result of this action by the state, in circumstances where it has not been proven beyond reasonable doubt that they did the things that have been alleged or posed the risks that have been alleged. We are considering whether it may be appropriate, and indeed necessary for human rights reasons, to offer that person some level of support regarding their housing position.

Question 15: Do you have any other comments you wish to make regarding the introduction of protective orders for people at risk of domestic abuse?