To mark Domestic Abuse Awareness month, Associate Emma Letham has written a short article on Non-Harassment Orders.
What is Harassment?
If someone is behaving in a way which causes you “distress and alarm”, then this can be harassment if (i) they intend to harass you or (ii) what they are doing “occurs in circumstances where it would appear to a reasonable person to be harassment”.
Behaviour which amounts to harassment can include speech and includes sending messages, emails, facebook messages etc.
What is a Non-Harassment Order?
A non-harassment order is an order that the court can make to help protect you from someone who is harassing you.
How do I get a Non-Harassment Order?
You apply to the Court for a non-harassment order. One of our Family Law solicitors can assist you with applying for a non-harassment order and would prepare a document called the “Initial Writ”.
How long does it take to get a Non-Harassment Order?
The court process can take some time to get a non-harassment order – often from 6 months to 1 year or possibly longer.
What about immediate protection?
As part of the court process, we can ask the court for an “interim interdict”. This is a temporary emergency order the court can put in place while the court process for the non-harassment order is ongoing.
Your solicitor would ask for a “pre-service” hearing and this is a Court hearing where the Sheriff will decide whether to put the interim interdict in place or not. This hearing should take place as soon as possible after the court documents are sent to the court. Usually the person harassing you will not be notified of this hearing.
In making a decision on the request for an interim interdict, the Sheriff needs to agree that:-
(i) There is, at least, a reasonable argument that you have been harassed
(ii) The consequences of an order not being in place would be worse for you than the consequences for the person harassing you if an order is put in place (sometimes referred to as the “balance of convenience”).
What happens if the person ignores the interim interdict?
Your solicitor can ask the Sheriff to attach a “Power of Arrest” to the interim interdict. Your solicitor would need to explain to the Sheriff why a Power of Arrest is needed to protect you.
If a Power of Arrest is granted, it means that if the person ignores the interim interdict, you can contact the police and the police have the power to arrest the person harassing you.
If a Power of Arrest if not granted, if the person ignores the interim interdict, they will still be considered in “contempt of court”. You would tell your solicitors about this and they could be charged with contempt of court. It is likely the Sheriff would then attach a Power of Arrest to the interim interdict.
What happens next?
There will be a second Court Hearing, usually 1-2 weeks after the first hearing and at that hearing, the person who has been harassing you can provide their position on the interim interdict.
The Sheriff will then make a decision on whether the interim interdict should remain in place or not.
There will then be further court procedure in respect of the non-harassment order. It is likely you will require to come to court and given evidence about the harassment you have suffered. Your solicitor can ask the court for you to be treated as a vulnerable witness and if the Sheriff agrees, special measures can be put in place for you, for example, the court may let you give your evidence by video-link or from behind a screen.
At the end of the court process, the Sheriff will make a decision on whether a non-harassment order should be granted or not.
What happens if the person ignores the non-harassment order?
If the person breaches a non-harassment order, they are guilty of a criminal offence. They can be arrested and if convicted, they can be fined or sent to prison (or both).
Associate, Emma Letham, and Senior Solicitor, Iona Whyte, have both undertaken the Scottish Women’s Rights Centre Approved Domestic Abuse Training for solicitors and are happy to talk you through the legal process for applying for a Non-Harassment Order and answer any questions you may have.
If you ever fear for your safety, please contact the police in the first instance.