Domestic Abuse (Protection) (Scotland) Act 2021

Domestic Abuse (Protection) (Scotland) Act 2021

2021 asp 16

The Act

Part 1 – Domestic abuse protection notices and orders

Domestic abuse protection notices

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).