EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations implement, in part, Directive 2011/99/EU of the European Parliament and of the Council on the European Protection Order. They extend to Scotland only.
Regulation 2 adds five new sections to the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) so as to allow Scottish courts to issue a European Protection Order (“EPO”) and to recognise and implement an EPO issued in another member state of the European Union.
New section 254A to be added to the 1995 Act provides a number of definitions for the terms used in sections 254A to 254E. A “protected person” is an individual who is the object of the protection given by a protection measure and a “protection measure” involves the imposition of certain prohibitions or restrictions on the conduct of one individual in order to protect another individual. The issuing state is the member state of the European Union whose competent authority issues the EPO and the executing state is the member state of the European Union in which the protected person resides or stays or intends to reside or stay.
New section 254B to be added to the 1995 Act allows the court to issue a European Protection Order (“EPO”) on the application of a protected person or their authorised representative. The court must be satisfied that a protection measure is in place and that the protected person either resides or stays, or has decided to reside or stay, in the executing state . Subsection (3) provides two matters which the court must take into account in deciding whether to issue an EPO. Subsection (4) obliges the court to inform the protected person if the application for an EPO is refused. Subsection (5) obliges the court, once it has issued an EPO, to transmit the EPO to the competent authority of the executing state. Subsection (6) obliges the court to modify or revoke the EPO and inform the executing state if the protection measure imposed in Scotland is modified or revoked.
New sections 254C, 254D and 254E to be added to the 1995 Act cater for the situation where an EPO is received by a sheriff. New section 254C deals with the recognition of an incoming EPO. Subsection (2) obliges the sheriff to recognise the EPO unless one of the grounds for refusal specified in subsection (3) apply. Subsection (4) obliges the sheriff to request further information from the competent authority of the issuing state where the sheriff considers the EPO to be incomplete. Subsection (5) provides for the competent authority of the issuing state and the protected person to be informed of a decision to refuse to recognise the EPO.
New section 254D deals with the implementation of an EPO once it has been recognised under section 254C. Subsection (1) provides that the court must take steps to implement the EPO by imposing a non-harassment order (NHO). Subsection (2) places some restrictions on the requirements as to the offender’s behaviour which may be contained in the NHO. Subsection (3) specifies two matters which the sheriff must consider when considering which requirements to impose on the offender in the NHO. Subsection (4) applies section 234A of the 1995 Act to an NHO made in pursuance of section 254D(1) in the same way as it applies to NHOs made following conviction in Scotland but subject to certain modifications. Subsections (5) and (6) place an obligation on the sheriff to provide certain information to the offender, the competent authority of the issuing state and the protected person where it makes an NHO in pursuance of section 254D(1). Subsection (7) places an obligation on a court which convicts the offender of a breach of an NHO made in pursuance of section 254D(1) to inform the competent authority of the issuing state.
New section 254E to be added to the 1995 Act, provides powers and duties for sheriffs to revoke or modify an NHO made in pursuance of section 254D(1). Subsection (2) provides powers by which the NHO can be modified or revoked in response to a modification of the European Protection Order to which the non-harassment order relates. Subsection (3) creates a process by which the offender can apply to a sheriff for a modification of the NHO. Subsection (4) obliges a sheriff to revoke the NHO where the sheriff is informed by the competent authority of the issuing state that the EPO to which the NHO relates has been revoked or withdrawn. Subsection (5) creates a process by which the offender can apply to a sheriff for a revocation of the NHO. Subsection (6) obliges the sheriff to inform the issuing state and, where possible, the protected person and the offender where the NHO is modified or revoked under section 254E.