Protections in the justice system for women and girls
Prosecutorial powers to impose non-harassment orders
Background
A non-harassment order (NHO) is an order which requires a person to refrain from certain conduct in relation to the victim. This prohibited conduct will be determined by the court, informed by the circumstances of the case. Examples of prohibited conduct may include not approaching the victim’s home or place of work.
Criminal offending by men against women and girls often involves harassment. Where a conviction arises in a case involving harassment, such as a domestic abuse conviction, the criminal court has powers to put in place protective measures for the victim. One of the main ways in which protection can be provided is through imposition of an NHO.
NHOs can provide security and protection for victims, with breaches of NHOs being a criminal offence.
Context to the issue that is being raised
The Crown Office and Procurator Fiscal Service (COPFS) has powers to offer people accused of having committed a criminal offence an alternative to prosecution.
Alternatives to prosecution may be used when COPFS considers that it is in the public interest to take action, but prosecution may not be the most appropriate course of action. This way, the accused accepts responsibility for the crime but will not have a formal criminal conviction recorded against their name, and witnesses are not required to attend court to give evidence.
COPFS has no powers to require that, when accepting an alternative to prosecution, the accused must agree that a NHO is put in place. At present, only a court can make an NHO following conviction
Prosecutors are understandably reluctant to offer alternatives to prosecution in domestic abuse cases where doing so means that a potential victim would forfeit the possibility of having an NHO put in place to protect them from future abuse by the accused person.
As a result, cases that might otherwise be capable of being dealt with by the use of an alternative to prosecution are currently prosecuted in court, with the resultant increased stress and uncertainty for the victim, as well as diverting COPFS, judicial and defence resource away from other cases.
Within this context, COPFS has asked the Scottish Government to consider developing legislation that would provide new powers for prosecutors to offer NHOs as an alternative to prosecution.
Our view
We consider it is appropriate to assess whether new powers should be provided for COPFS to help improve protection for victims.
We are looking for views on the principle of whether powers to offer alternatives to prosecution that include NHOs should be provided for COPFS.
You read more about the main considerations about the new powers may operate below.
Main considerations about the new powers may operate
Variation or revocation of an NHO
Where an NHO is made by a criminal court, both the person against whom it is made and COPFS can apply to the court for that NHO to be varied or revoked.
An application for a variation might be made where the circumstances of either the victim or perpetrator changes in ways that may be require to be reflected in the conditions of an NHO. For example, the NHO may prohibit the perpetrator from attending or approaching the victim’s address and the victim may move during the time period within which the NHO has effect. An application for an NHO to be revoked may be made when there has been (or where the applicant claims there has been) a reconciliation between the perpetrator and victim, and the victim no longer wishes for the NHO to be in place.
Where an NHO has been made by a court, it follows that consideration of whether to vary or revoke an NHO is also properly a decision for the court. It might be argued that where an NHO made as a condition of an alternative to prosecution has been made by COPFS, it might be more reasonable for any such application to be considered by COPFS in the first instance. However, there may be a case for providing the person against whom an NHO is made to have a right of appeal to a court if they do not accept the decision of COPFS on an application to vary or revoke an NHO (this could be either a refusal on the part of COPFS to vary or revoke an NHO on the application of the accused/perpetrator or a decision to vary at the request of the complainer/victim).
Length of NHO
There is no statutory limit to the length of time for which a court can make an NHO on conviction. There is considerable variation in the length of time for which NHOs have effect, with a court sometimes making an NHO that will have effect for a period of 12 months, and on occasion - when dealing with conviction for the most serious offences - it may make an NHO that has effect for an indefinite period.
It is expected that an alternative from prosecution would only be offered in cases at the less serious end of the spectrum, which would otherwise be prosecuted in the summary courts. As such, it seems reasonable that there should be a limit to the length of time for which an NHO imposed by COPFS as part of an alternative to prosecution should have effect. It is suggested a period of 12 months would be reasonable as, if COPFS consider a longer NHO may be required to deal with the risk posed by the accused, they could prosecute the case in court.