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Chapter 11: Banning and temporary banning orders
1. This chapter provides guidance on banning and temporary banning orders. These orders permit an application to the sheriff for an order to ban a person from a specified place. A banning order will be granted only where the adult at risk is in danger of being seriously harmed, and banning the subject of the order from the place occupied by the adult at risk is likely to safeguard the adult's well-being and property more effectively than would the removal of the adult at risk.
What is a banning order or temporary banning order?
2. A banning or temporary banning order is one of three protection orders available under the Act. The other two are assessment orders and removal orders. (For further information on assessment orders and removal orders, please see Chapters 9 and 10 respectively)
3. There is no requirement under the Act for the council to have previously arranged a visit under section 7, an interview under section 8, or medical examination under section 9 or to have applied for either an assessment or removal order. Protection orders may be applied for at any time in the process, depending on the individual case. Any proposed action must be judged on a case by case basis, including the use of other legislation, and be necessary to provide benefit to the individual.
4. Section 19 of the act provides for the granting of a banning order by the sheriff which bans the subject of the order ("the subject") from being in a specified place. Section 21 allows the sheriff to grant a temporary banning order pending determination of an application for a banning order.
5. A banning or temporary banning order may:
- ban the subject from being in a specified area in the vicinity of the specified place;
- authorise the summary ejection of the subject from the specified place and the specified area;
- prohibit the subject from moving any specified thing from the specified place;
- direct any specified person to take specified measures to preserve any moveable property owned or controlled by the subject which remains in the specified place while the order has effect;
- be made subject to any specified conditions; and
- require or authorise any person to do, or to refrain from doing, anything else which the sheriff thinks necessary for the proper enforcement of the order.
6. A condition specified in an order may authorise the subject of the order to be in a place or area from which they are banned, but only in specified circumstances, for example while being supervised by another person or during specified times.
7. The subject of the order may be a child
What needs to be considered before applying for an order?
8. Action can only be considered where an adult is an adult at risk for the purposes of the Act. (For further information on what constitutes an adult at risk please refer to Chapter 1)
9. Before the council or any person makes a decision or undertakes any function under the Act, they must have regard to the principles of the Act, in particular that any action will be the least restrictive action and be necessary to provide a benefit to the adult. The adult's wishes and needs must always be considered. (For further information on the principles of the Act, please refer to Chapter 1)
10. Consideration must also be given as to whether the adult should be referred to an independent advocacy organisation or provided with other services. (For further information on adult support, please refer to Chapter 3)
11. The use of other legislation may also be considered, for example, social work, mental health or criminal justice legislation.
12. It would be best practice to ensure wherever practicable the adult is kept fully informed at every stage of the process e.g. whether an order has been granted, what powers it carries, what will happen next, whether they have the right to refuse, what other options are available etc.
13. If it is considered that the adult will refuse consent to the granting of the order the council should re-consider the merit of the application. This may be in the form of a multi-disciplinary case conference. Protection orders should be only used when all other options have been explored and exhausted.
14. If the council decides to pursue an application where the affected adult has capacity to consent and has made known their refusal to consent, then the council must prove that the adult has been " unduly pressurised" by the person suspected of harming the adult. Where the adult does not have such capacity, then this requirement does not apply.
15. Where the adult is incapable of consent, it would be best practice to approach the Office of the Public Guardian to ascertain whether a guardian or attorney has powers to consent on their behalf.
16. Failure to report a breach of an order will not result in any action being taken against the adult at risk.
Who can apply for an order?
17. Section 22 provides that an application for a banning order may be made by or on behalf of:
- an adult whose well-being or property would be safeguarded by the order; or
- any other person who is entitled to occupy the place concerned.
18. However under section 22(2) the council is under an obligation to apply for a banning order if it is satisfied that:
- nobody else is likely to apply for a banning order in respect of the circumstances which caused the council to be satisfied as to the matters set out in section 20 (criteria for granting banning order - see paragraph 22 below); and
- no other proceedings to eject or ban the person concerned from the place concerned are depending before a court.
19. This means that an adult at risk or anyone living in the same premises may apply for a banning order. The council have a duty to apply for a banning order where it is known that an adult at risk is being or is likely to seriously harmed and that no one else is likely to apply.
20. The applicant may also apply for a temporary banning order at the same time as making application for a banning order, or at a later date. This allows an order to be granted pending final determination of a banning order application and may be used in cases where it is deemed inadvisable to wait until a full hearing on the banning order application takes place.
21. If the adult at risk is the applicant, it would be best practice for the council to assist with the application.
What are the criteria for an order?
22. Section 20 of the Act provides that a sheriff may grant a banning order or temporary banning order only if they are satisfied that:
- an adult at risk is being, or is likely to be, seriously harmed by another person;
- the adult at risk's well-being or property would be better safeguarded by banning the other person from a place occupied by the adult than it would be by moving the adult from that place; and that either:
- the adult at risk is entitled, or permitted by a third party, or
- neither the adult at risk nor the subject is entitled, or permitted by a third party
to occupy the place from which the subject is to be banned.
23. The applicant may apply for a temporary banning order at the same time as making application for a banning order or before the banning order is determined by the sheriff.
24. The subject of the banning order may not necessarily be living with the adult at risk. The point of the banning order is to put some distance between them to protect the adult at risk from further serious harm.
25. The order allows a person to be banned from being in a specific place, usually where the adult at risk lives. The main test of the order is whether the person is, or is likely to be, seriously harming an adult at risk. The banning order bans the subject from contact with the adult at risk for up to a maximum period of six months. This could be to allow a breathing space between the adult at risk and the subject to allow time for mediation or to secure the adult at risk's future on a permanent basis.
Who can be banned from a property?
26. Section 23 provides that the granting of a banning or temporary banning order does not affect the adult at risk's rights, as a non-entitled spouse, to occupy a home within the place from where the subject of the order is banned under the Matrimonial Homes (Family Protection)(Scotland) Act 1981. This means that a banning order, despite affecting the subject's right to occupy the property in question, does not affect any rights that the adult at risk has under the 1981 Act.
27. Where the adult at risk is not entitled to occupy a place, the Act does not allow a person who is entitled to occupy that place to be banned.
28. Banning orders may be used in respect of public places and may also be used where neither the adult at risk nor the subject has a right to occupy a property.
How long can a banning order be granted for?
29. A banning order can last for any period up to a maximum of six months.
30. The applicant should consider what would be the shortest a period possible in line with the general principles of the adult at risk's wishes and what would be beneficial to the adult.
31. The period for a banning order will be specified by the sheriff. A banning order may be recalled or varied.
How long can a temporary banning order be granted for?
32 Section 21(4) of the Act provides that a temporary banning order expires on the earliest of the following dates:
- the date the sheriff determines the banning order or is required to determine the banning order by virtue of Court Rules;
- the date on which it is recalled; or
- any specified expiry date.
33. A temporary banning order may also be recalled or varied.
What conditions can be attached to an order?
34. A banning order may specify a number of matters and may have conditions attached. (see also paragraphs 5 and 6).
35. The order may be tailored to allow contact between the subject and the adult at risk under supervised conditions, perhaps as a first step to resolving the issue. This may include supervision of the subject in the area or place banned to allow some form of mediation between the subject and the adult at risk or to allow the subject access to the adult at risk's children or family. The conditions for this contact could be specified in an Access Plan, showing dates, times and location.
Attaching a power of arrest
36. The sheriff has discretion at the time of granting the banning or temporary banning order to attach a power of arrest.
37. Where a banning or temporary banning order has been granted without an attached power of arrest and the facts and circumstances of the case have changed since the order was granted, then application may subsequently made to the sheriff to vary the order by attaching a power of arrest. ( see also paragraphs 49 to 52)
38. The evidence for this would be based on the likelihood of the subject breaching the banning order or any of the conditions attached to the banning order. If any of these conditions were breached the subject may be arrested without warrant if a constable reasonably suspects them to be in breach of the order and that they are likely to breach the order again if not arrested. (see also paragraphs 61 to 77)
Who does the applicant have to notify of the application for an order?
39. The applicant for the banning order or temporary banning (or application for variation or recall) must notify the subject of the application and the affected adult at risk of their application (where the applicant is not the adult at risk). Notification must be in writing. It would also be best practice for the council to advise any persons who may have an interest in the person's welfare of the application. This may enable such persons to enter the proceedings.
Court hearing
40. Section 19(4) provides that, where it is proposed to attach a condition authorising the subject of the order to be in the place or area from which they are banned during specified circumstances, the sheriff must have regard to any relevant representations made by:
- the applicant for the order;
- the adult at risk;
- any other person who has an interest in the adult at risk's well-being or property; and
- the subject of the application.
41. Where the adult concerned has indicated that they do not wish legal representation, or it appears that they do not understand the process, this should be indicated to the court
42. Under section 41(6), the sheriff also has discretion to appoint a safeguarder before deciding on the order. The role of the safeguarder is to safeguard the interests of the affected adult at risk in any proceedings relating to an application. The sheriff may instruct the safeguarder to report on the issue of consent.
43. In cases where the sheriff has decided that a hearing should be held and the council becomes aware that the person suspected of harming the adult may also attend e.g. where the adult wishes to be accompanied by that person, the council should inform the sheriff prior to the hearing being held. The sheriff will then be able to decide whether to apply the provisions available under the Vulnerable Witnesses (Scotland) Act 2004.
Does the adult at risk have to consent to the grant of an order?
44. If the council decides to pursue an application where the affected adult has capacity to consent and has made known their refusal to consent, then the council must prove that the adult has been " unduly pressurised" by the person suspected of harming the adult. Where the adult does not have such capacity, then this requirement does not apply.
45. Section 35 provides that where the adult at risk has refused to consent, the sheriff, or the person carrying out the order, may ignore the refusal where the sheriff reasonably believes:
- that the affected adult at risk has been unduly pressurised to refuse consent; and
- that there are no steps which could reasonably be taken with the adult's consent which would protect the adult from the harm which the order or action is intended to prevent.
46. Section 35(4) states that an adult at risk may be considered to have been unduly pressurised to refuse to consent if it appears that:
- harm which the order or action is intended to prevent is being, or is likely to be, inflicted by a person in whom the adult at risk has confidence and trust; and
- that the adult at risk would consent if the adult did not have confidence and trust in that person.
Must notification always be given and a hearing held?
47. Section 41(2) provides that the sheriff may disapply the requirement for notification and a hearing in those cases where a condition is to be specified in the banning order authorising the subject to be in the place or area from which they have
been banned for specified circumstances (under section 19(3)). The sheriff must be satisfied that:
- by doing so this will protect the adult from serious harm; or
- will not prejudice any other person affected by the disapplication.
48. Where the council, or any other person, considers that it would be prejudicial to the person's welfare for a hearing to be held by the sheriff, then the council ask the sheriff to dispense with intimation to the adult who is the subject of the application and the persons listed at paragraph 40. The council should provide the sheriff with their reasons in coming to this conclusion to assist the sheriff in reaching a decision.
Application for variation or recall of an order
49. Section 24 provides that application may be made to the sheriff to recall or vary an order by:
- the subject of the order;
- the applicant for the order;
- the adult at risk to whom the order relates; or
- any other person who has an interest in the adult at risk's well-being or property.
50. The sheriff may vary or recall an order if satisfied the variation or recall is justified by a change in the facts or circumstances in respect of which the order was granted, or as the case may be, last varied.
51. A variation may not vary the date on which the order expires.
52. A banning or temporary banning order can be varied any number of times within the specified period. If the sheriff recalls the order the subject can return to the adult at risk's place. The grounds therefore for recalling the order should show that further harm is not likely to take place.
Right of appeal against a decision to grant or a refusal to grant an order
Banning order
53. Section 51(2) provides for a right of appeal against a decision to grant, or a refusal to grant banning order. An appeal must be made to the sheriff principal in the first instance. The sheriff principals' decision may be appealed to the Court of Session, but only by those who were party to the appeal to the sheriff principal.
Temporary banning order
54. An appeal against a sheriff's decision to grant, or refuse to grant a temporary banning may be made to the sheriff principal. However an appeal is only competent with the leave of the sheriff. An appeal against the sheriff principal's decision to the Court of Session is only competent with the leave of the sheriff principal.
How long does an order continue to have effect?
55. Where a sheriff principal decides to quash a banning order or temporary banning order, the order will continue to have effect until either the end of the period for appeal (if no appeal is made) or, where an appeal is made, when it is abandoned or where the decision is confirmed.
56. Alternatively, the order will continue to have effect until the order expires or, in the case of a temporary banning order, the sheriff principal refuses leave to appeal against the decision to quash the order.
Who does the applicant have to notify of the granting, variation or recall of an order?
57. Where the sheriff grants a banning order, temporary banning order, variation or recall, the applicant (where not the adult at risk) must notify the adult at risk and such other person specified by the sheriff, by delivering a copy of the order and any power of arrest attached to the adult or any other person with an interest in the adult's well-being or property. However, failure to deliver an order does not invalidate it.
58. Where a power of arrest has been attached, section 27 provides that the police, via the chief constable, must be notified, as soon as possible, by delivering a copy of the order and any power of arrest attached.
Who is responsible for preserving the banned person's property during an order?
59. Section 19(2)(d) of the Act states that a banning order may also direct any specified person to take specified measures to preserve any moveable property owned or controlled by the subject which remains in the specified place while the order has effect.
60. The Act allows for specific measures to be taken to preserve the subject's property. The applicant should obtain an inventory of moveable property belonging to the subject of the banning order that can remain in the adult at risk's home or specified place, where the subject is banned. It would be best practice to obtain a signature from the subject confirming that the inventory is correct. The subject can formally request any of these measures. This may be to protect property such as pets or computers.
What happens if an order without an attached power of arrest is breached?
61. Where the subject of the order breaches the order then this will be dealt with on the basis of a failure to obtemper an order of court. As a result of this, if established, the subject of the order can be held in contempt of court.
62. Where the person breaching the order has also committed a criminal offence, then this will be dealt with in the usual manner.
What happens if an order with an attached power of arrest is breached?
63. The power of arrest becomes effective only when served on the subject of the order and will expire at the same time as the order.
64. Under section 28, where a banning order or temporary banning order has a power of arrest attached, a constable can formally arrest the subject of an order if the constable:
- reasonably suspects the subject to be breaching, or to have breached, the order; and
- considers that there would, if the subject were not arrested, be a risk of the subject breaching the order again.
65. In other words, the constable cannot simply arrest the subject for having breached the order alone.
Who must the police notify when someone is detained under section 28?
66. Section 29 provides that the arresting officer must:
- immediately inform the arrested person of the reason for the arrest; and
- take the arrested person as quickly as is reasonably practicable to a police station.
67. Section 30 provides that the officer in charge must ensure that the detained person is informed immediately of their right to have a solicitor and another person of their choice informed that they have been detained and where. They have a right to have a private interview with the solicitor and the solicitor informed of the details of any court appearance.
68. The police must pass the facts and circumstances to the procurator fiscal. The fiscal will then decide if there is sufficient evidence to take any criminal proceedings ( e.g. assault towards the adult at risk) regarding the incident which gave rise to the arrest for breaching the banning order.
Breaching of order with an attached power of arrest - child
69. The subject of the banning order may be child. If this is the case, where the officer in charge knows or believes that a person is a child, then the officer must, where practicable, give intimation without delay of the detention and place of detention to any person known to have parental responsibilities and rights in relation to the child.
Police duty to keep record of detention
70. Under section 31, the officer in charge must ensure that the following matters are recorded in connection with the detention of the subject of the order:
- the time at which the person was arrested;
- the police station to which the person was taken;
- the time when the person arrived at that police station;
- the address of any other place to which the person is, during the detention, taken;
- the time when the person was informed of the rights;
- the time and nature of any request made by the person to exercise any of those rights; and
- the time and nature of any action taken by a police officer under section 30.
(see also paragraph 67)
Duty to bring detained person before sheriff
71. Section 32 makes clear that the procedure under the Act would only apply in circumstances where the procurator fiscal has not yet decided to take criminal proceedings against the arrested person as a result of the facts leading to the arrest.
72. The arrested person should be brought to court, in the district in which the person was arrested. This should be on the next court day on which it is practicable to do so but that does not prevent the sheriff dealing with the matter if sitting on a non-court day for the disposal or criminal business.
Information to be presented to sheriff
73. Under section 33, the fiscal must present a petition to the sheriff setting out various details of the case and requesting the sheriff to consider whether a longer period of detention is justified. The petition should:
- give the detained person's particulars;
- state the facts and circumstances which gave rise to the arrest;
- give any information known to the fiscal:
- about the circumstances which gave rise to the banning order or temporary banning order concerned, and
- which is relevant to an assessment of whether the detained person is likely to breach that orders: and
- request the sheriff to consider whether a longer period of detention is justified.
Sheriff to consider authorising longer detention
74. Where the sheriff is satisfied, based on the information provided by the fiscal, that a breach of the banning order or temporary banning order appears to have taken place and that there is a "substantial risk" the subject will breach the order again, the sheriff may authorise the person to be detained for a further 2 days (not counting days which are not court days).
75. Where the sheriff decides not to authorise further detention, then the detained person must be released (unless already in custody in respect of another matter).
76. The sheriff must provide the arrested person with an opportunity to make representations prior to making any decision.
77. The banning or temporary banning order, any conditions attached, and power of arrest continue notwithstanding breach proceedings.
Expiry of an order prior to any criminal proceedings
78. If the subject was charged for committing an offence as a result of breaching the order and released on bail, the conditions of the order would continue pending the trial. This is an additional safeguard for the adult at risk rather than punishment of the subject of the order.
79. In cases where an order will expire pending trial, the council may wish to consider applying for a new banning order and temporary banning order until such time as the subject is tried. There is nothing in the Act from preventing fresh application being made. The decision to do so would depend on whether there is sufficient evidence to make an application and an order remains justified according to the statutory criteria. The council may also wish to liaise with the police or procurator fiscal regarding the application.
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