A power of arrest attached to an interdict is an important legal tool designed to protect individuals at risk of abuse. Section 2 of the Protection from Abuse (Scotland) Act 2001 sets out the rules about when a power of arrest begins, how long it lasts, how it can be extended, and when it must be brought to an end.
When a Power of Arrest Takes Effect
A power of arrest does not come into force immediately when granted by the court. It only becomes effective once it has been served on the interdicted person, together with any documents required by law. Until the person has been formally served, the police cannot arrest them for breaching the interdict under the power of arrest.
When a Power of Arrest Comes to an End
Section 2 sets out three circumstances in which a power of arrest will cease to have effect. It ends on whichever of the following happens first:
- The expiry date set by the court is reached
- The court recalls (cancels) the power of arrest
- The underlying interdict is varied or recalled
This means that if the interdict itself changes or is removed, the attached power of arrest automatically stops, even if its original expiry date has not yet arrived.
Extending the Duration of a Power of Arrest
A person who has been granted a power of arrest may apply to the court to extend it. The court must grant the extension if two conditions are met:
- The interdicted person has been given the opportunity to appear or be represented at the hearing.
- The court is satisfied that the extension is necessary to protect the applicant from a risk of abuse in breach of the interdict.
If an extension is granted, the court must set a new expiry date. This new date cannot be more than three years from the date the extension is made.
When an Extension Takes Effect
Like the initial power of arrest, any extension only becomes effective once it has been served on the interdicted person, along with any required documents. Once served, it replaces the previous expiry date with the new one set by the court.
The rules on extension and service apply not only to the first extension but also to any further extensions the applicant may require, provided the legal tests are met each time.
When a Power of Arrest Must Be Recalled
Under Section 2, the court must recall a power of arrest in either of the following situations:
- The applicant asks the court to recall it.
- The interdicted person asks for recall and the court is satisfied that:
- The applicant has had an opportunity to be heard or represented, and
- The power of arrest is no longer necessary to protect the applicant from a risk of abuse.
This ensures that a power of arrest remains in place only for as long as it is needed for protection.
Section 3 of the Act states that as soon as possible after—
(a) a power of arrest has been served;
(b) an extension of the duration of a power of arrest has been served;
(c) a recall of a power of arrest has been granted; or
(d) the relevant interdict has been varied or recalled,
the person who has obtained such power, extension, variation or recall, or such other person as may be prescribed, must deliver such documents as may be prescribed to the chief constable of the Police Service of Scotland.
Conclusion
Section 2 of the Protection from Abuse (Scotland) Act 2001 provides a clear framework for managing the lifespan of a power of arrest. It ensures that protective measures come into effect properly, remain in force only when justified, and can be extended when necessary to safeguard those at risk.
If you need guidance on applying for an interdict, attaching a power of arrest, or seeking an extension or recall, our team at XK Family Law Solicitors can provide tailored advice and support.
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For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.