Non-Harassment Orders in Scotland - what are they and how do you get one?

Section 8 of the Protection from Harassment Act 1997 outlines the law in Scotland when dealing with harassment.

It provides that every individual has a right to be free from harassment. It confirms that a person must not pursue a course of conduct with amounts to harassment of another person and is intended to amount to harassment of that person; or occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.

Harassment in the context of family law most often relates to separating spouses or cohabiting couples who have separated. In terms of such behaviour between two people who have been involved in a relationship with one another, rather than a Non-Harassment Order being applicable, a Domestic Abuse Interdict is the remedy that is more commonly used.

However, in some circumstances harassing behaviour can arise from other third parties such as new partners or family members. It can also be a form of domestic abuse.

What is ‘Harassment’ and a ‘Course of Conduct’?

Harassment of a person includes causing the person alarm or distress. It is important to note that alarm or distress can be both physical and psychological.

‘Conduct’ is the actions taken by a person to cause another person to feel alarmed or distressed. Conduct may include speech or such other actions amounting to a course of conduct occurring on at least two occasions.

Examples of harassing behaviours may include:

• A person sending text messages
• Repeated phone calls
• Stalking (including the use of fitness or tracking apps such as Strava or Garmin to gain a person’s location)
• Loitering and being present in an area
• Unwanted letters, emails or visits from a person
• Posting messages using social media about them
• Threatening and abusive behaviour
• Cyberbullying on the internet for example via Facebook, Twitter, YouTube, Snapchat, Instagram, online gaming services and other social media forums
• Spreading rumours
• Blackmailing

When a behaviour of a harassing nature is directed towards a person’s race, disability, religion, gender or sexual orientation, there are specific areas of law in place to protect the victim.

What is a ‘Non-Harassment Order’?

A Non-Harassment Order is designed to protect a victim from a course of conduct which amounts to harassment and causes the victim fear, alarm and distress.

How do I get a ‘Non-Harassment Order’?

A Non-Harassment Order can be obtained by applying to the Sheriff Court or the Court of Session as a civil order. This means that the police and criminal courts are not involved. A criminal offence does not have to have been committed by the harasser for a Non-Harassment Order to be sought.

In some circumstances, where a person has in fact been convicted of a criminal offence, a Court may also grant a Non-Harassment Order against that person. In these circumstances, the order would be applied for by the Procurator Fiscal requiring the offender to refrain from such conduct in relation to the victim as specified in the Order.

A Non-Harassment Order will not be granted unless the Defender has been given an opportunity to be heard in Court. As a result, it is common practice to apply for an Interim Interdict Order to be granted until such time as the Defender has had an opportunity to be heard and a Non-Harassment Order has been granted. An Interim Interdict Order ensures that a victim has protection in place while the court makes its decision. It allows a victim to get protection as soon as possible.

Victims will not have to go to Court unless ordered to do so however, further down the line a victim will need to give evidence about the harassment they have suffered. It is worth noting that other options than physically being in court in close proximity to the harasser are available.

What is an ‘Interdict’ or ‘Interim Interdict’?

An Interim (temporary) Interdict or Interdict is an Order whereby the court stipulates that an individual is to refrain from carrying out a specified action or behaviour. For example, a victim of domestic abuse could ask the Court to interdict their partner from approaching them or coming within a certain distance of the family home.

When an Interdict is granted, it is also possible for the Court to attach a Power of Arrest to the order. This means that in the event that a person may have breached the terms of the Interdict, the police have an automatic right to arrest the person.

How does the Court decide whether to grant an Interim Interdict or a Non-Harassment Order?

Whether the Court decides to grant a Non-Harassment Order is determined by the balance of probabilities (more likely than not) and the order that is most appropriate to protect the victim from further harassment.

When deciding whether an Interim Interdict should be granted, the Court will make the decision on the balance of convenience.

How do I defend a Non-Harassment Order being granted against me?

If you are a person who has had a court action whereby a Non-Harassment Order has been raised against them, this can be defended if it can be shown that the course of conduct complained of was authorised under any rule of law; was pursued for the purpose of preventing or detecting crime or, was reasonable in the particular circumstances. If an order has been granted against you, it is possible to apply to the Court to seek for the order to be revoked or varied.

What happens if someone breaches a ‘Non-Harassment Order’?

It is important that if a person has breached the Non-Harassment Order it is reported to the police. The police may then charge the person and the matter will be considered by the Procurator Fiscal on whether the person will be prosecuted. Evidence may be required to demonstrate the breach of the order took place.

Breaching a Non-Harassment Order is a criminal office which can result in a person being sentenced with a fine or imprisonment.

In addition, a victim of the breach of a Non-Harassment Order can also apply to the Court for a civil-based claim. This can result in the person being entitled to an award of damages (financial compensation) or the court may grant a further order known as an Interdict or Interim Interdict against that person to stop specified types of behaviour.

What support is available for victims?

Police Scotland – Phone: 999 (in an emergency) or 101 (in a non-emergency). It is important to report instances of harassment when they occur as the police will keep a record of it and can investigate the complaints.

Police Scotland also has various online forms which can be used to report domestic abuse, stalking, harassment or hate crimes on their website. https://www.scotland.police.uk/secureforms/c3/