Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Antisocial Behaviour etc. (Scotland) Act 2004

Type Act of the Scottish Parliament

Publication 2004-07-26

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — Antisocial behaviour strategies

Antisocial behaviour strategies

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(1) Each local authority and the chief constable shall, acting jointly, prepare a strategy for dealing with antisocial behaviour in the authority’s area.

(2) Each local authority shall publish the strategy.

(3) The strategy shall in particular—

(a) set out an assessment of the extent of occurrences of antisocial behaviour in the authority’s area;

(b) set out an assessment of the types of antisocial behaviour occurring in the authority’s area;

(c) specify arrangements for consulting community bodies and other persons (including in particular young persons) in each part of the authority’s area in which there are (or are likely to be) occurrences of antisocial behaviour, about how to deal with antisocial behaviour in the part;

(d) specify the range and availability in the authority’s area of any services—

(i) for persons under the age of 16 years; and

(ii) for persons generally,

which are designed to deal with antisocial behaviour occurring there, the consequences of such behaviour or the prevention of such behaviour;

(e) in so far as not specified under paragraph (d), specify the range and availability in the authority’s area of any services for—

(i) victims of antisocial behaviour;

(ii) persons who witness occurrences of antisocial behaviour; and

(iii) the provision of mediation in relation to disputes arising from antisocial behaviour; and

(f) make provision about—

(i) how the authority and the ... chief constable are to co-ordinate the discharge of their functions in so far as they may be discharged in relation to antisocial behaviour in the authority’s area;

(ii) the exchange of information relating to such behaviour between the authority and the ... chief constable;

(iii) the giving by the authority and the ... chief constable of information of that kind to such other persons as appear to the authority and the chief constable to have an interest in dealing with antisocial behaviour and the receipt by the authority and the chief constable of information of that kind from those other persons; and

(iv) the exchange of information relating to antisocial behaviour among such other persons as are mentioned in sub-paragraph (iii).

(4) The local authority and the ... chief constable—

(a) shall keep the strategy under review; and

(b) may from time to time revise the strategy.

(5) If a strategy is revised under subsection (4), the local authority shall publish the revised strategy.

(6) In preparing, reviewing and revising the strategy, the local authority shall consult—

(a) the Principal Reporter;

(b) registered social landlords which provide or manage property in the authority’s area; and

(7) In considering which persons to consult, the local authority shall seek to include those who are representative of persons adversely affected by antisocial behaviour.

(8) Each local authority and ... chief constable shall, in discharging functions under this section and in implementing a strategy as published under it, have regard to any guidance issued by the Scottish Ministers about those matters.

(9) Before issuing any such guidance, the Scottish Ministers shall consult such persons as they see fit.

(10) For the purposes of subsection (1), the Scottish Ministers may by directions require such persons as appear to them to hold information relating to antisocial behaviour to supply—

(a) such information as may be specified in the direction; or

(b) information of a description specified in the direction,

to a local authority and ... chief constable.

(11) In this section—

“community bodies” has the meaning given by section 15(4) of the Local Government in Scotland Act 2003 (asp 1); and

“chief constable” means the chief constable of the Police Service of Scotland.

Reports and information

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(1) Subject to subsection (3)(b), each local authority shall from time to time publish reports on—

(a) how the authority and the ... chief constable have implemented the strategy as published under section 1(2) or (5); and

(b) what were the results of that implementation.

(2) It shall be the duty of—

(a) the ... chief constable;

(b) the Principal Reporter; and

(c) any registered social landlord which provides or manages property within the area of the local authority that published the strategy,

to provide such information as the authority may reasonably require in order to enable the authority to comply with the duty under subsection (1).

(3) The Scottish Ministers may by regulations make provision as to—

(a) the form and content of reports under subsection (1); and

(b) the frequency and timing of publication of such reports.

(4) Before making regulations under subsection (3) the Scottish Ministers shall consult—

(a) such associations of local authorities; and

(b) such other persons,

as they think fit.

(5) A local authority shall, on being so required by the Scottish Ministers, provide them with reports or other information (being reports or information about the matters referred to in subsection (1)) of such kind as they specify in the requirement.

(6) In this section “ chief constable ” has the same meaning as in section 1.

Scottish Ministers' power to apply sections 1 and 2 to registered social landlords

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(1) The Scottish Ministers may make regulations for the purpose of securing the participation of a registered social landlord in the preparation, review or revision of a strategy such as is mentioned in section 1(1).

(2) Regulations under subsection (1) may in particular make such modifications of sections 1(1), (3), (4), (6) and (8) and 2(1) as the Scottish Ministers consider necessary or expedient for that purpose.

Part 2 — Antisocial behaviour orders

Antisocial behaviour orders

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(1) On the application of a relevant authority, the sheriff may, if satisfied that the conditions mentioned in subsection (2) are met as respects the person to whom the application relates (the “specified person”), make an antisocial behaviour order.

(2) Those conditions are—

(a) that the specified person is at least 12 years of age;

(b) that the specified person has engaged in antisocial behaviour towards a relevant person; and

(c) that an antisocial behaviour order is necessary for the purpose of protecting relevant persons from further antisocial behaviour by the specified person.

(3) For the purpose of determining whether the condition mentioned in subsection (2)(b) is met, the sheriff shall disregard any act or conduct of the specified person which that person shows was reasonable in the circumstances.

(4) Where the specified person is a child, the sheriff shall, before determining the application, require the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to whether the condition mentioned in subsection (2)(c) is met; and the sheriff shall, in determining whether that condition is met, have regard to that advice.

(5) Subject to subsections (6) and (7), an antisocial behaviour order is an order which prohibits, indefinitely or for such period as may be specified in the order, the specified person from doing anything described in the order.

(6) The prohibitions that may be imposed by an antisocial behaviour order are those necessary for the purpose of protecting relevant persons from further antisocial behaviour by the specified person.

(7) If an antisocial behaviour order is made on the application of a local authority the order may, in addition to imposing prohibitions that are necessary for the purpose mentioned in subsection (6), impose such prohibitions as are necessary for the purpose of protecting other persons (“affected persons”) from further antisocial behaviour by the specified person.

(8) Before making an antisocial behaviour order, the sheriff shall, where the specified person is present in court, explain in ordinary language—

(a) the effect of the order and the prohibitions proposed to be included in it;

(b) the consequences of failing to comply with the order;

(d) the entitlement of the specified person to appeal against the making of the order.

(9) Failure to comply with subsection (8) shall not affect the validity of the order.

(10) An application for an antisocial behaviour order shall be made by summary application to the sheriff within whose sheriffdom the specified person is alleged to have engaged in antisocial behaviour.

(11) Before making an application under this section—

(a) a relevant authority shall consult the relevant consultees; and

(b) a registered social landlord shall—

(i) in the case where the specified person is a child, consult the local authority within whose area the specified person resides or appears to reside about the proposed application;

(ii) in the case where the specified person is not a child, notify that local authority of the proposed application.

(12) Nothing in this section shall prevent a relevant authority from instituting any legal proceedings otherwise than under this section against any person in relation to any antisocial behaviour.

(13) In this section, “relevant person” means—

(a) in relation to an application by a local authority, a person within the area of the authority; and

(b) in relation to an application by a registered social landlord—

(i) a person residing in, or otherwise in or likely to be in, property provided or managed by that landlord; or

(ii) a person in, or likely to be in, the vicinity of such property.

Antisocial behaviour orders: variation and revocation

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(1) On the application of—

(a) the relevant authority that obtained an antisocial behaviour order; or

(b) the person subject to such an order,

the sheriff may vary or revoke the order.

(2) Where the person subject to the order is a child, the sheriff shall, in determining whether to vary or revoke it, have regard to any views expressed by the Principal Reporter.

(3) Before making an application under this section—

(a) a relevant authority shall consult the relevant consultees; and

(b) a registered social landlord shall—

(i) in the case where the person subject to the order is a child, consult the local authority within whose area the person resides or appears to reside about the proposed application;

(ii) in the case where the person subject to the order is not a child, notify that local authority of the proposed application.

Appeals: effect on competence of application under section 5

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Where a person appeals against—

(a) the making of an antisocial behaviour order; or

(b) the variation, under section 5, of such an order,

it shall not be competent for that person to make an application under that section before the appeal is disposed of or abandoned.

Interim antisocial behaviour orders

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(1) Subsection (2) applies where—

(a) an application is made under section 4; and

(b) the application has been intimated to the specified person.

(2) If the sheriff is satisfied—

(a) that the condition mentioned in paragraph (a) of section 4(2) is met;

(b) that prima facie the condition mentioned in paragraph (b) of that section is met; and

(c) that the making of an interim antisocial behaviour order (an “interim order”) is necessary for the purpose mentioned in paragraph (c) of that section,

the sheriff may make an interim order.

(3) Where the specified person is a child, the sheriff shall, in determining whether to make an interim order, have regard to any views expressed by the Principal Reporter.

(4) An interim order is an order which prohibits, pending the determination of the application, the specified person from doing anything described in the order.

(5) Sections 4(6) and (7) shall apply to an interim order as they apply to an antisocial behaviour order.

(6) Before making an interim order, the sheriff shall, where the specified person is present in court, explain in ordinary language—

(a) the effect of the order and the prohibitions proposed to be included in it;

(b) the consequences of failing to comply with the order;

(d) the entitlement of the specified person to appeal against the making of the order.

(7) Failure to comply with subsection (6) shall not affect the validity of the order.

(8) An interlocutor granting or refusing an interim order is an appealable interlocutor.

Notification of orders

Notification of making etc. of orders and interim orders

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(1) Subsection (2) applies where—

(a) an antisocial behaviour order is made or varied; or

(b) an interim order is made.

(2) The clerk of the court by which the order is made or varied shall cause a copy of the order as so made or varied to be—

(a) served on the person subject to the order; and

(b) given to the relevant authority on whose application the order was made.

(3) Subsection (4) applies where—

(a) an antisocial behaviour order is revoked; or

(b) an interim order is recalled.

(4) The clerk of the court by which the order is revoked or recalled shall notify—

(a) the person subject to the order; and

(b) the relevant authority on whose application the order was made,

of the revocation or recall.

(5) For the purposes of subsection (2)(a), a copy is served if—

(a) given to the person subject to the order; or

(b) sent to that person by registered post or the recorded delivery service.

(6) For the purposes of subsection (4)(a), the person subject to the order is notified if notification is sent to the person by registered post or the recorded delivery service.

(7) A certificate of posting of a letter sent under subsection (5)(b) or (6) issued by the postal operator concerned shall be sufficient evidence of the sending of the letter on the day specified in such certificate.

(8) In subsection (7), “postal operator” has the meaning given by section 27 of the Postal Services Act 2011 (c.5).

Breach of orders

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(1) Subject to subsection (3), a person who—

(a) is subject to an antisocial behaviour order or an interim order; and

(b) without reasonable excuse, does anything that the order to which the person is subject prohibits the person from doing,

shall be guilty of an offence.

(2) A person guilty of an offence under subsection (1) shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both; or

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine or to both.

(3) If—

(a) otherwise than under subsection (1), the thing done by the person constitutes an offence (a “separate offence”); and

(b) the person is charged with the separate offence,

the person shall not be liable to be proceeded against for an offence under subsection (1).

(4) Subject to subsection (5), if a person is convicted of a separate offence, the court which sentences the person for that offence shall, in determining the appropriate sentence or disposal, have regard to—

(a) the fact that the separate offence was committed while the person was subject to the antisocial behaviour order or, as the case may be, interim order;

(b) the number of antisocial behaviour orders and interim orders to which the person was subject at the time of commission of the separate offence;

(d) the extent to which the sentence or disposal in respect of any previous conviction of the person differed, by virtue of this subsection, from that which the court would have imposed but for this section.

(5) The court shall not, under subsection (4)(a), have regard to the fact that the separate offence was committed while the person was subject to the antisocial behaviour order or, as the case may be, the interim order unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.

(6) The fact that the separate offence was committed while the person was subject to an antisocial behaviour order or, as the case may be, an interim order, shall, unless challenged—

(a) in the case of proceedings on indictment, by the giving of notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of the Criminal Procedure (Scotland) Act 1995 (c. 46); or

(b) in summary proceedings, by preliminary objection before the person’s plea is recorded,

be held as admitted.

Breach of orders: prohibition on detention of children

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(1) The Criminal Procedure (Scotland) Act 1995 (c. 46) shall be amended as follows.

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