Lesson 7.3 Domestic Abuse - Police Powers Flashcards
What is the differance between matrimonial homes and family homes?
Matrimonial home - couple occupying it must be either married or in a civil partnership
Family home - couples who have not undertaken a ceremony of marriage or civil partnership
Civil partnerships Act 2004 gives equivalent legal protection to same sex couples as married hetrosexual couples.
Define entitled and non- entitled spouses and partners under “Matrimonial Homes (Family Protection) (Scotland) Act 1981)
“Entitled” - partner who is the registered owner or tenant of the property
“Non-entitled” - spouse or partner who is not officially recorded as being an owner or tenant of the property
1981 act gives automatic occupancy rights to both entitled and non entitled parners in a marriage or civil partnership
Neither can be excluded from the home. But the non entitled spouse or partner despite occupancy rights is at a disadvantage as no rights of ownership or tenancy
Define occupancy rights?
For marriage, civil partnership and same sex.
“• The right, if in occupation, to continue to occupy the matrimonial home.
•If not in occupation, a right to enter into and occupy the matrimonial home.
• And in either case the right to do so together with any child of the family”
When are automatic occupancy rights lost?
When not used by non entitled partner.
When there has been non cohabitation for two continuous years and the non-entitled partner has not resided in the home during that period.
Does not apply to someone with ownership- this is never lost
Court can both grant and suspend occupancy rights. As in civil law, it depends on the relationship between the abused partner and the abuser.
What happens with cohabiting couples where only one is the sole owner/tenant? In terms of the “Matrimonial Homes (Family Protection) (Scotland) Act 1981?
The sole tenant or owner can require the partner to leave and thereafter the partner could be refused access to the property. Even if they have lived there for years.
Other partner could apply to the court to have occupancy rights granted. But its a slow process and only grants occupancy rights for 6 months
What is s22 of the Rent (Scotland) Act 1984?
Creates criminal offence for anyone to deprive a ‘residential occupier’ of a premises.
This could be done by harassing the occupier from the home, or changing the locks and preventing access, or depriving the occupier of utilities required to make normal habitation possible.
Designed to protect tenants from landlords. However, ‘residential occupier’ is extended to include people in relationships who have occupancy rights.
What powers do police have in terms of s22 Rent (Scotland) Act 1984?
In domestic incidents consider cautioning and charging person depriving their partner of their occupation of the Marital home, only if the excluded partner has occupancy rights (marriage, civil partnership, joint ownership/tenancy, court order)
Otherwise if they no occupancy rights , they are not a “residential occupier” and act offers them no protection.
NO POWER OF ENTRY.
In reality not used for domestic incidents. Rarely used for this purpose.
Who can apply for an interdict?
Any spouse or partner of either sex and whether married, unmarried or in a civil partnership
What can an introdict prohibit?
- Any conduct of one spouse towards the other spouse
- A spouse from entering or remaining in the matrimonial home
- Entering or remaining in any other residence occupied by the applicant spouse
- The abusive partner entering or remaining in the place of work of the other partner
- The abusive partner entering or remaining in the school attended by any child in thr care of another partner
Can offer protection not only to abused parner, but also any children of the family.
All interdicts are served on the person by sherrif officers, so they cant claim to not know.
What if an interdict doesnt have a power of arrest?
You cant arrest boo hoo.
But see if you can establish any criminality from the abusive partners behavior.
When is a power of arrest attached to an interdict?
Protection from abuse (scotland) act 2001
- the interdicted person has been given am oppertunity to be heard or represented before the court and
- the court is satisfied that the power of arrest is necessary to protect the applicant from the risk of further abuse.
Court must specify a date of expiry. NO LATER THAN 3 YEARS
Who needs a copy of an interdict?
Served to interdicted person by sherrif officer. Also a copy must be delivered to cheif constable in the area the matrimonial home is situated and the cheif constable of another area if the applicant lives somewhere else
What action can Police take under an interdict?
Where a power of arrest is attached to an interdict a constable me arrest the interdicted person without a warrant if you:-
•Have reasonable cause to suspect the person of being in breach of interdict, and
•Consider that there would be, if the person were not arrested, a risk of abuse or further abuse by that person in breach of interdict.
POWER OF ARREST COMES FROM S4 PROTECTION FROM ABUSE (SCOTLAND) ACT 2001
You just need reasonable cause to suspect that there has been a breach of interdict. Hence you can arrest without full corroborative evidence.
When will a person be brought before court when in breach of a domestic abuse interdict?
The next lawful day. The court will be provided with a copy of the interdict to show assosiated power of arrest.
This crime is also punishable by imprisonment.
If the court is satisfied that the arrested person continues to present a risk to the person named in the interdict he or she may authorise the arrested person to be detained in custody for up to 48 hours. In addicion to any time already spent in police custody.
What is an exclusion order and who does it apply to?
Its a court order which has the effect of suspending one partners occupancy rights to the matrimonial/ family home.
Married persons, persons in civil partnerships, co- habiting couples who have occupancy rights, people given occupancy rights by the court - can all apply to have an exclusion order granted.
Served by sherrif officer
Non applicant partner must leave the home usually with 7 days notice and assosiated interdicts will be granted.
Power of arrest almost always granted
When appling a solicitor must present evidence that the applicant or children are in danger of the non applicants behavior
