Civil partners: competency of interdict

Civil Partnership Act 2004
2004 Chapter 33 - continued
PART 3, CIVIL PARTNERSHIP: SCOTLAND - continued

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	CHAPTER 4
	INTERDICTS
113	Civil partners: competency of interdict
	(1) It shall not be incompetent for the Court of Session or the sheriff to entertain an application by one civil partner in a civil partnership for a relevant interdict by reason only that the civil partners are living together in civil partnership.
	(2) In subsection (1) and in section 114, "relevant interdict" means an interdict, including an interim interdict, which-
	(a) restrains or prohibits any conduct of one civil partner towards the other civil partner or a child of the family, or
	(b) prohibits a civil partner from entering or remaining in a family home or in a specified area in the vicinity of a family home.
114	Attachment of powers of arrest to relevant interdicts
	(1) Subject to subsection (2), the court is, on the application of an applicant civil partner, to attach a power of arrest-
	(a) to any relevant interdict which is ancillary to an exclusion order (including an interim order under section 104(6));
	(b) to any other relevant interdict where the non-applicant civil partner has had the opportunity of being heard by or represented before the court, unless it appears to the court that in all the circumstances of the case such a power is unnecessary.
	(2) The court may attach a power of arrest to an interdict by virtue of subsection (1) only if satisfied that attaching the power would not result in the non-applicant civil partner being subject, in relation to the interdict, to a power of arrest under both this Chapter and the Protection from Abuse (Scotland) Act 2001 (asp 14).
	(3) A power of arrest attached to an interdict by virtue of subsection (1) does not have effect until such interdict together with the attached power of arrest is served on the non-applicant civil partner; and such a power of arrest, unless previously recalled, ceases to have effect upon the dissolution of the civil partnership.
	(4) If, by virtue of subsection (1), a power of arrest is attached to an interdict, a constable may arrest without warrant the non-applicant civil partner if the constable has reasonable cause for suspecting that civil partner of being in breach of the interdict.
	(5) If, by virtue of subsection (1), a power of arrest is attached to an interdict, the applicant civil partner is, as soon as possible after service of the interdict, to ensure that there is delivered-
	(a) to the chief constable of the police area in which the family home is situated, and
	(b) if the applicant civil partner resides in another police area, to the chief constable of that other police area,
	a copy of the application for the interdict and of the interlocutor granting the interdict together with a certificate of service of the interdict and, where the application to attach the power of arrest to the interdict was made after the interdict was granted, a copy of that application and of the interlocutor granting it and a certificate of service of the interdict together with the attached power of arrest.
	(6) Where any relevant interdict to which, by virtue of subsection (1), there is attached a power of arrest, is varied or recalled, the civil partner who applied for the variation or recall is to ensure that there is delivered-
	(a) to the chief constable of the police area in which the family home is situated, and
	(b) if the applicant civil partner resides in another police area, to the chief constable of that other police area,
	a copy of the application for variation or recall and of the interlocutor granting the variation or recall.
	(7) In this section and in sections 115 and 116-
	"applicant civil partner" means the civil partner who has applied for the interdict, and
	"non-applicant civil partner" is to be construed accordingly.
115	Police powers after arrest
	(1) Where a person has been arrested under section 114(4), the officer in charge of a police station may-
	(a) if satisfied that there is no likelihood of violence to the applicant civil partner or any child of the family, liberate that person unconditionally, or
	(b) refuse to liberate that person.
	(2) For such refusal and the detention of that person until appearance in court by virtue of section 116(2) or of any provision of the Criminal Procedure (Scotland) Act 1975 (c. 21) the officer is not to be subjected to any claim whatsoever.
	(3) Where a person arrested under section 114(4) is liberated under subsection (1), the facts and circumstances which gave rise to the arrest are to be reported forthwith to the procurator fiscal who, if he decides to take no criminal proceedings in respect of those facts and circumstances, is at the earliest opportunity to take all reasonable steps to intimate his decision to the persons mentioned in paragraphs (a) and (b) of section 116(5).
116	Procedure after arrest
	(1) The provisions of this section apply only where-
	(a) the non-applicant civil partner has not been liberated under section 115(1), and
	(b) the procurator fiscal decides that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.
	(2) The non-applicant civil partner who has been arrested under section 114(4) is wherever practicable to be brought before the sheriff sitting as a court of summary criminal jurisdiction for the district in which that civil partner was arrested not later than in the course of the first day after the arrest, such day not being a Saturday, a Sunday or a court holiday prescribed for that court under section 8 of the Criminal Procedure (Scotland) Act 1995 (c. 46).
	(3) Nothing in subsection (2) prevents the non-applicant civil partner being brought before the sheriff on a Saturday, a Sunday or such a court holiday when the sheriff is, in pursuance of that section of that Act, sitting for the disposal of criminal business.
	(4) Subsections (1) to (3) of section 15 of that Act (intimation to a named person) apply to a non-applicant civil partner who has been arrested under section 114(4) as they apply to a person who has been arrested in respect of any offence.
	(5) The procurator fiscal is at the earliest opportunity, and in any event prior to the non-applicant civil partner being brought before the sheriff under subsection (2), to take all reasonable steps to intimate-
	(a) to the applicant civil partner, and
	(b) to the solicitor who acted for that civil partner when the interdict was granted or to any other solicitor who the procurator fiscal has reason to believe acts for the time being for that civil partner,
	that the criminal proceedings referred to in subsection (1) will not be taken.
	(6) On the non-applicant civil partner being brought before the sheriff under subsection (2) (as read with subsection (3)), the following procedures apply-
	(a) the procurator fiscal is to present to the court a petition containing-
	(i) a statement of the particulars of the non-applicant civil partner,
	(ii) a statement of the facts and circumstances which gave rise to the arrest, and
	(iii) a request that the non-applicant civil partner be detained for a further period not exceeding 2 days,
	(b) if it appears to the sheriff that-
	(i) the statement referred to in paragraph (a)(ii) ostensibly discloses a breach of interdict by the non-applicant civil partner,
	(ii) proceedings for breach of interdict will be taken, and
	(iii) there is a substantial risk of violence by the non-applicant civil partner against the applicant civil partner or any child of the family,
	he may order the non-applicant civil partner to be detained for a further period not exceeding 2 days, and
	(c) in any case to which paragraph (b) does not apply, the non-applicant civil partner is, unless in custody in respect of any other matter, to be released from custody.
	(7) In computing the period of 2 days referred to in paragraphs (a) and (b) of subsection (6), no account is to be taken of a Saturday or Sunday or of any holiday in the court in which the proceedings for breach of interdict will require to be raised.



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Prepared 25 November 2004