This article explains the main protective measures available in Scotland, including bail conditions, non-molestation interdicts, exclusion orders, powers of arrest and Non-Harassment Orders.
Protective measures may be available through the criminal courts, the civil courts, or both. The right option will depend on the specific circumstances of your case.
Under the Domestic Abuse (Scotland) Act 2018, a domestic abuse offence may be committed where a person engages in a course of behaviour that is abusive towards their partner or former partner. The behaviour must be such that a reasonable person would consider it likely to cause physical or psychological harm, including fear, alarm or distress. The person carrying out the behaviour must either intend to cause that harm or be reckless as to whether harm is caused. Importantly, domestic abuse is not limited to physical violence. It can include threatening, intimidating, controlling, coercive, isolating, humiliating or degrading behaviour, including behaviour which restricts a person’s freedom or monitors their day-to-day activities.
If you consider that your partner or former partner has behaved in this way, their conduct may amount to a criminal offence. You may wish to call Police Scotland to report your concerns and discuss the next steps with a trained officer. If you are in immediate danger, call 999.
Our Criminal Law team regularly advises on matters arising in the context of domestic abuse proceedings. We can provide guidance to those seeking to understand how the criminal process operates, including the practical effect of bail conditions, reporting of breaches, and the potential for protective orders through the court.
Where a person has been charged with a domestic abuse offence and released on bail, the court may impose conditions designed to protect the complainer and reduce risk while the case is ongoing. These commonly include prohibitions on contacting the complainer (directly or indirectly), attending at their home or place of work, or approaching them in any manner.
A breach of bail conditions constitutes a separate criminal offence and may result in further prosecution, including the imposition of a custodial sentence or financial penalty. Where there is a concern that such conditions have been breached, this can be reported to Police Scotland.
The criminal courts may also impose a Non-Harassment Order (“NHO”), most commonly following conviction for offences involving harassment or domestic abuse. An NHO can prohibit specified conduct, including any form of contact or other behaviour amounting to harassment. These are intended to provide longer-term protection beyond the conclusion of criminal proceedings. An NHO can also be sought in the civil courts.
A breach of a Non-Harassment Order is treated as a serious criminal matter and may result in further prosecution.
Criminal proceedings can take time to conclude, depending on the nature and complexity of the allegations. As Non-Harassment Orders are generally imposed following conviction, they do not always provide immediate protection at the outset of proceedings.
Where more immediate or wider protection is required, it may be appropriate to consider parallel civil remedies that we will go on to consider within this article. A joined approach can ensure that appropriate safeguards are in place at all stages.
Our Family Law team regularly advises on civil protective measures available in Scotland. These orders are designed to provide practical protection for individuals experiencing domestic abuse, including by restricting contact, preventing further abusive behaviour, or regulating who may remain in the family home. The appropriate remedy will depend on the individual circumstances, including the parties’ relationship, the nature of the behaviour involved, and the level of protection required.
A non-molestation interdict is a civil court order designed to protect a person from abusive, threatening, harassing or intimidating behaviour, whether in person, by phone, online or through another person. It can be tailored to the person’s circumstances and may prohibit specific conduct, such as attending at their home, workplace or a child’s school.
Where the parties have, or had, a domestic relationship, the interdict may be treated as a domestic abuse interdict under the Domestic Abuse (Scotland) Act 2011.
A power of arrest can be attached to certain domestic abuse interdicts under the Protection from Abuse (Scotland) Act 2001 if the court is satisfied that it is necessary to protect the person seeking protection from the risk of a breach of the interdict. A power of arrest allows the police to arrest the person subject to the order if they have reasonable cause to suspect that the interdict has been breached. Its purpose is to provide immediate practical protection and a clear legal boundary around future conduct.
The Domestic Abuse (Scotland) Act 2011 also provides that breach of a domestic abuse interdict with a power of arrest may amount to a criminal offence.
Under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, an exclusion order can be obtained to require an abusive partner or former partner to leave the family home and prevent them from returning, even where they are a part-owner or have occupancy rights. Such an order will be granted where the court is satisfied that it is necessary to protect the applicant or any child of the family from the other party’s conduct, or threatened conduct, which is or would be harmful to their physical or mental health.
A Non-Harassment Order (“NHO”) can also be sought at the conclusion of a civil case and has the same effect a NHO obtained in criminal proceedings.
If you need require advice about protective measures against domestic abuse in Scotland, our family law and criminal law teams can help you understand your options and take urgent steps where required.
Where criminal proceedings are ongoing, our Criminal and Family Law teams can work together to provide coordinated, practical and sensitive advice. Early advice is particularly important where criminal allegations arise from family matters. However, even where no criminal proceedings are raised, our Family Law team can assist you in seeking protective orders in the civil courts.
If you are affected by domestic abuse, whether as a complainer or an accused person, our Criminal and Family Law teams are available to provide clear, balanced guidance tailored to your circumstances. Please contact us for further advice.
Kay Richardson, Family Law Team – kri@bto.co.uk
Stacey Fox, Criminal Defence Team – sfo@bto.co.uk
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