The European Protection Order (Scotland) Regulations 2015

Amendment of the Criminal Procedure (Scotland) Act 1995

2.—(1) The Criminal Procedure (Scotland) Act 1995(1) is amended as follows.

(2) After section 254 (forfeiture: search warrant for forfeited articles), insert—

“European Protection Orders

European Protection Orders: interpretation

254A.   In this section and in sections 254B, 254C, 254D and 254E, except where the context otherwise requires—

“competent authority” means the judicial or equivalent authority in a member state of the European Union which has power to issue and recognise a European Protection Order;

“European Protection Order” means a decision—

(a)

taken in relation to a protection measure by a competent authority in a member state of the European Union; and

(b)

on the basis of which the competent authority of another member state of the European Union may take any appropriate measure or measures under its own national law with a view to continuing the protection of the protected person,

“issuing state” in relation to a European Protection Order, means the member state of the European Union, other than the United Kingdom, whose competent authority has issued the Order;

“offender” in relation to a protection measure or, as the case may be, a non-harassment order made under section 254D(1), means the individual whose conduct is the subject of the measure or order;

“protected person” in relation to a protection measure or, as the case may be, a non-harassment order made under section 254D(1), means the individual who is the object of the protection given by the measure or order;

“protection measure” means a decision taken in criminal matters which is intended to protect a protected person from the criminal conduct of the offender by imposing one or more of the following prohibitions or restrictions—

(a)

prohibiting the offender from entering certain localities, places or defined areas where the protected person resides or visits;

(b)

prohibiting the offender from contacting, or regulating the offender’s contact with, the protected person in any form (for example by telephone, electronic or ordinary mail or fax); or

(c)

prohibiting the offender from coming closer than a prescribed distance to the protected person or regulating the approach of the offender to the protected person within such a distance.

Issuing of a European Protection Order

254B.— (1) A protected person, or an authorised representative of such a person, may apply to a court for a European Protection Order.

(2) A court may issue a European Protection Order in respect of a protected person if the court is satisfied that—

(a) a protection measure which has been taken in Scotland is in force; and

(b) the protected person—

(i) resides or stays in the executing state, or

(ii) has decided to reside or stay in the executing state.

(3) In deciding whether to issue a European Protection Order, the court must take into account—

(a) the period or periods of time during which the protected person intends to reside or stay in the executing state; and

(b) the seriousness of the need for protection of the protected person.

(4) Where the court decides not to issue a European Protection Order, the court must inform the protected person of that decision.

(5) Where a court issues a European Protection Order under subsection (2) the court must, as soon as reasonably practicable, transmit the European Protection Order to the competent authority of the executing state.

(6) Where a European Protection Order has been issued by a court under subsection (2) and the court subsequently modifies or revokes the protection measure on which it is based, the court must, as soon as reasonably practicable—

(a) modify or revoke the European Protection Order accordingly; and

(b) inform the competent authority of the executing state of that decision.

(7) For the purposes of this section—

“court” means the High Court, a sheriff or a justice of the peace court; and

“executing state” means a member state of the European Union, other than the United Kingdom in which the protected person resides, stays, or intends to reside or stay.

Recognition of a European Protection Order

254C.— (1) This section applies where a sheriff receives a European Protection Order from a competent authority of an issuing state.

(2) Except where one or more grounds specified in subsection (3) applies, the sheriff must recognise the European Protection Order.

(3) The grounds are—

(a) the sheriff, after complying with subsection (4), decides that the European Protection Order is incomplete;

(b) the European Protection Order does not relate to a protection measure;

(c) the prohibitions or restrictions contained in the European Protection Order have been adopted in relation to conduct that does not constitute a criminal offence in Scotland;

(d) the protection created by the prohibitions or restrictions contained in the European Protection Order derives from the execution of a penalty or measure that is covered by an amnesty under the law of Scotland;

(e) there is immunity conferred on the offender in Scotland, which would make it impossible to adopt a protection measure following recognition of the European Protection Order;

(f) criminal proceedings against the offender for the conduct in relation to which the prohibitions or restrictions contained in the European Protection Order have been adopted would be prohibited in Scotland under any enactment had the conduct occurred in Scotland;

(g) recognition of the European Protection Order would be inconsistent with the rule against double jeopardy provided for in section 1(1) of the Double Jeopardy (Scotland) Act 2011(2);

(h) the offender, by reason of the offender’s age, could not have been held criminally responsible for the conduct in relation to which the prohibitions or restrictions contained in the European Protection Order have been adopted had the conduct occurred in Scotland;

(i) the prohibitions or restrictions contained in the European Protection Order relate to a criminal offence which, under the law of Scotland, is regarded as having been committed, wholly or for a major or essential part, within Scotland.

(4) Where the sheriff considers that the European Protection Order is incomplete, the sheriff must—

(a) inform the competent authority of the issuing state in writing;

(b) request that the competent authority of the issuing state provide the missing information; and

(c) allow the competent authority of the issuing state such reasonable period of time as the sheriff may specify in order to comply with that request.

(5) Where the sheriff refuses to recognise a European Protection Order on any of the grounds specified in subsection (3), the sheriff must inform the competent authority of the issuing state and the protected person of the refusal and the grounds of refusal.

Implementation of a recognised European Protection Order

254D.— (1) Where a sheriff recognises a European Protection Order under section 254C(2), the sheriff must make a non-harassment order in relation to the offender requiring the offender to refrain from such conduct in relation to the protected person as may be specified in the order for such period (which includes an indeterminate period) as may be so specified.

(2) Subsection (4) of section 234A(3) applies to a non-harassment order made under subsection (1) of this section as it applies to a non-harassment order made under section 234A subject to the restrictions in paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972.

(3) Subsections (4A) and (4B) of section 234A apply to a non-harassment order made under subsection (1) of this section as they apply to a non-harassment order made under section 234A.

(4) A non-harassment order made under subsection (1) may impose on the offender only such requirements as to the offender’s conduct—

(a) as may constitute a protection measure; and

(b) which correspond, to the highest degree possible, to the prohibitions or restrictions contained in the European Protection Order.

(5) In considering which requirements to specify in a non-harassment order made under subsection (1), the sheriff must consider—

(a) the nature of the prohibitions or restrictions contained in the European Protection Order; and

(b) the duration of the prohibitions or restrictions contained in the European Protection Order.

(6) Where a sheriff makes a non-harassment order under subsection (1), the sheriff must provide the information in subsection (7) to—

(a) the offender;

(b) the competent authority of the issuing state; and

(c) the protected person.

(7) The information is—

(a) that the non-harassment order has been made;

(b) that a breach of the non-harassment order is an offence under section 234A(4);

(c) information about the punishments to which the offender may be liable following conviction for an offence under section 234A(4); and

(d) information about the powers of arrest available to a constable under section 234A(4A) and (4B).

(8) Where the offender is convicted of an offence consisting of, or involving, a breach of a non-harassment order made under subsection (1), the convicting court must notify the competent authority of the issuing state.

Modification and revocation of non-harassment orders made under section 254D

254E.— (1) This section applies to non-harassment orders made under section 254D(1).

(2) Where a sheriff is informed by a competent authority of an issuing state that the European Protection Order to which a non-harassment order relates has been modified, the sheriff must—

(a) modify the non-harassment order so that the requirements as to the offender’s conduct contained in the modified non-harassment order correspond, to the highest degree possible, to the prohibitions or restrictions contained in the modified European Protection Order;

(b) where the information submitted by the competent authority of the issuing state in relation to the modification of the European Protection Order is incomplete, refuse to modify the non-harassment order until the missing information is provided by the competent authority of the issuing state; or

(c) where the prohibitions or restrictions contained in the modified European Protection Order no longer constitute a protection measure, revoke the non-harassment order.

(3) A sheriff may, on the application of an offender to whom a non-harassment order relates, modify the order on either or both of the following grounds—

(a) that the requirements as to the offender’s conduct contained in the non-harassment order do not correspond, or do not correspond sufficiently, to the prohibitions or restrictions contained in the European Protection Order to which the non-harassment order relates;

(b) the European Protection Order to which the non-harassment order relates has been modified by the competent authority of the issuing state and the non-harassment order should be modified in a similar manner.

(4) Where a sheriff is informed by a competent authority of an issuing state that the European Protection Order to which a non-harassment order relates has been revoked or withdrawn, the sheriff must revoke the non-harassment order.

(5) A sheriff may, on the application of an offender to whom a non-harassment order relates, revoke the order on any of the following grounds—

(a) the recognition of the European Protection Order to which the non-harassment order relates should have been refused on one of the grounds specified in section 254C(3);

(b) the protected person no longer resides or stays in Scotland;

(c) where the prohibitions or restrictions contained in the European Protection Order have been modified and no longer constitute a protection measure;

(d) the European Protection Order has been revoked or withdrawn by the competent authority of the issuing state; or

(e) a decision on supervision measures, within the meaning of Article 4 of Framework Decision 2009/829/JHA(4), which includes the prohibitions or restrictions contained in the European Protection Order, is transferred to Scotland after the recognition of the European Protection Order.

(6) Where a sheriff modifies or revokes a non-harassment order under this section, the sheriff must inform—

(a) the competent authority of the issuing state; and

(b) where possible—

(i) the protected person, and

(ii) the offender.”.

(1)

1995 c.46.

(2)

2011 asp 16.

(3)

1995 c.46. Section 234A was added by the Protection from Harassment Act 1997 (c.40) section 11 and was subsequently amended by the Crime and Punishment (Scotland) Act 1997 (c.48) Schedule 3, paragraph 1; the Criminal Justice (Scotland) Act 2003 (asp 7) section 49; and the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) section 15.

(4)

Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention. OJ L 294, 11.11.2009 (p.20).