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

Last updated 2026-03-26

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

Part 1 — Antisocial behaviour strategies

Antisocial behaviour strategies

1

(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

2

(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.

3

(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

4

(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

5

(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

6

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

7

(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

8

(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

9

(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

10

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

(2) In subsection (2) of section 44 (detention of children), after “offence” there shall be inserted “ (other than, if the child is under the age of 16 years, an offence under section 9(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) or that section as applied by section 234AA(11) of this Act) ”.

(3) In section 208 (detention of children convicted on indictment), after “Act” there shall be inserted “ and subsection (3) below ”.

(4) At the end of section 208 there shall be added—

(3) If the child is under the age of 16 years, the power conferred by subsection (1) above shall not be exercisable in respect of a conviction for an offence under section 9(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) or that section as applied by section 234AA(11) of this Act.

Breach of orders: arrest without warrant

11

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Orders in respect of children

Sheriff’s power to refer case to children’s hearing

12

(1) This section applies where—

(a) the sheriff makes an antisocial behaviour order or an interim order in respect of a child, and

(b) the sheriff considers that a section 67 ground (other than the ground mentioned in section 67(2)(j)) applies in relation to the child.

(1A) The sheriff may require the Principal Reporter to arrange a children's hearing.

(1B) The sheriff must give the Principal Reporter a section 12 statement if—

(a) the sheriff makes a requirement under subsection (1A), and

(b) a compulsory supervision order is not in force in relation to the child.

(1C) A section 12 statement is a statement—

(a) specifying which of the section 67 grounds the sheriff considers applies in relation to the child,

(b) setting out the reasons why the sheriff considers the ground applies, and

(1D) In this section—

“compulsory supervision order” has the meaning given by section 83 of the Children's Hearings (Scotland) Act 2011,

“section 67 ground” means a ground mentioned in section 67(2) of that Act.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sheriff’s power to make parenting order

13

(1) Where a sheriff makes an antisocial behaviour order in respect of a child, the sheriff may, where subsection (2) applies, make a parenting order in respect of a parent of the child.

(2) This subsection applies where—

(a) the sheriff is satisfied that the making of the order is desirable in the interests of preventing the child from engaging in further antisocial behaviour; and

(b) the Scottish Ministers have notified the court that the local authority for the area in which the parent ordinarily resides has made arrangements that would enable the order to be complied with.

(3) In this section—

“parent” has the meaning given by section 117; and

“parenting order” has the meaning given by section 103(1).

Provision of information and records

Provision of information to local authorities

14

(1) Where by virtue of subsection (2)(b) of section 8 a registered social landlord—

(a) is given a copy of an antisocial behaviour order as made or varied; or

(b) is given a copy of an interim order,

it shall give a copy to each relevant local authority.

(2) Where by virtue of subsection (4)(b) of that section a registered social landlord—

(a) is notified of the revocation of an antisocial behaviour order; or

(b) is notified of the recall of an interim order,

it shall notify each relevant local authority of the date on which the order was revoked or recalled.

(3) In this section “relevant local authority” means a local authority whose area includes the premises referred to in section 4(13)(b) in relation to any person for whose protection the order was made.

Records of orders

15

(1) A local authority shall keep records of—

(a) each antisocial behaviour order; and

(b) each interim order,

of which the authority is given a copy by virtue of section 8(2)(b) or 14(1).

(2) A record kept under subsection (1) shall specify—

(a) the person in respect of whom the order was made;

(b) the prohibitions imposed by the order;

(i) whether a prohibition is indefinite or for a definite period and where it is for a period, that period;

(ii) where the authority is, by virtue of section 8(2)(b) or, as the case may be, 14(1), given a copy of the order as varied, the variation and its date; and

(iii) where the authority is, by virtue of section 8(4)(b) or, as the case may be, 14(2), notified of the revocation of the order, the date on which it was revoked;

(d) if the record relates to an interim order, where the authority is, by virtue of section 8(4)(b) or, as the case may be, 14(2), notified of the recall of the order, the date on which it was recalled; and

(e) such other matters relating to the order as the Scottish Ministers may prescribe in regulations.

(3) A local authority shall, on a request to do so being made to it by a person mentioned in subsection (4), disclose to that person information contained in a record kept under subsection (1).

(4) Those persons are—

(a) the Scottish Ministers;

(b) the Principal Reporter;

(d) the chief constable of the Police Service of Scotland;

(e) a registered social landlord.

Guidance and research

Guidance in relation to antisocial behaviour orders

16

A person (other than a court) shall, in discharging functions by virtue of this Part (other than section 13), have regard to any guidance given by the Scottish Ministers about—

(a) the discharge of those functions; and

(b) matters arising in connection with the discharge of those functions.

Arrangement of study into operation of Part

17

(1) The Scottish Ministers shall—

(a) arrange for the carrying out of a study into the operation of this Part; and

(b) lay a report on the results of the study before the Scottish Parliament within 3 years of the date on which the whole of the Part was first in force.

(2) The Scottish Ministers shall make such preparations for the carrying out of the study as are necessary to enable the study to commence as soon as the whole of the Part is in force; and such preparations may include, in particular, the instruction of a research team and the formation of a research advisory group to assist in the direction of the study.

Interpretation

Interpretation of Part 2

18

In this Part—

“affected person” has the meaning given by section 4(7);

“antisocial behaviour order” has the meaning given by section 4(5);

“child” means a person who is under the age of 16 years;

“interim order” has the meaning given by section 7(2)(c);

“relevant authority” means—a local authority; ora registered social landlord;

“relevant consultees” means—in relation to an antisocial behaviour order sought or made on the application of a local authority—the chief constable of the Police Service of Scotland;each local authority in whose area there is an affected person; andif the person in respect of whom the order is sought or made is a child, the Principal Reporter;in relation to an antisocial behaviour order sought or made on the application of a registered social landlord—the chief constable of the Police Service of Scotland;if the person in respect of whom the order is sought or made is a child, the Principal Reporter;

“specified person” has the meaning given by section 4(1).

Part 3 — Dispersal of groups

Authorisations and powers

Authorisations

19

(1) Subsection (2) applies where a police officer of or above the rank of superintendent (a “senior police officer”) has reasonable grounds for believing—

(a) that any members of the public have been alarmed or distressed as a result of the presence or behaviour of groups of two or more persons in public places in any locality in the officer’s police area (the “relevant locality”); and

(b) that antisocial behaviour is a significant, persistent and serious problem in the relevant locality.

(2) The senior police officer may authorise the exercise of the powers conferred by section 21—

(a) during a specified period;

(b) on specified days that fall within a specified period;

(3) An authorisation under subsection (2)—

(a) shall be in writing;

(b) shall be signed by the senior police officer giving it; and

(i) the relevant locality;

(ii) the grounds on which the authorisation is given; and

(iii) when the powers are exercisable.

(4) Before giving an authorisation under subsection (2) the senior police officer who proposes to give it shall ensure that any local authority whose area includes the whole or part of the relevant locality is consulted.

(5) A period specified under subsection (2) shall not exceed 3 months.

(6) In subsection (2), “specified” means specified by the senior police officer.

Authorisations: supplementary

20

(1) Before the powers conferred by section 21 become exercisable by virtue of an authorisation, the senior police officer who gave the authorisation shall ensure that an authorisation notice is—

(a) published in a newspaper circulating in the relevant locality; and

(b) displayed in some conspicuous place or places within the relevant locality.

(2) An “authorisation notice” is a notice which—

(a) states that authorisation has been given;

(b) specifies the relevant locality; and

(3) An authorisation may be withdrawn by—

(a) the senior police officer who gave it; or

(b) any police officer ... whose rank is the same as or higher than that of the senior police officer mentioned in paragraph (a).

(4) Before withdrawing, under subsection (3), an authorisation, the police officer who proposes to withdraw the authorisation shall ensure that any local authority whose area includes the whole or part of the relevant locality is consulted.

(5) The withdrawal of an authorisation shall not affect the exercise, by virtue of the authorisation, of any power which occurred before the withdrawal.

(6) The giving or withdrawal of an authorisation shall not prevent the giving of a further authorisation in respect of a locality which includes the whole or any part of the relevant locality to which the earlier authorisation relates.

(7) In this section, “authorisation” means an authorisation under section 19.

Powers exercisable in pursuance of authorisations

21

(1) Where a constable has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality is causing or is likely to cause alarm or distress to any members of the public, the constable may exercise a power mentioned in subsection (3).

(2) In determining whether to exercise a power mentioned in subsection (3) a constable shall have regard to whether the exercise of the power would be likely to result in the persons in the group causing less alarm and distress to members of the public in the relevant locality than if the power were not exercised.

(3) Subject to subsection (5), the constable may give—

(a) a direction requiring the persons in the group to disperse;

(b) a direction requiring any of those persons whose place of residence is not within the relevant locality to leave the relevant locality or any part of the relevant locality;

(c) a direction prohibiting any of those persons whose place of residence is not within the relevant locality from returning to the relevant locality or any part of the relevant locality during such period (not exceeding 24 hours) from the giving of the direction as the constable may specify.

(4) The constable may require a direction under paragraph (a) or (b) of subsection (3) to be complied with—

(a) immediately or by such time as the constable may specify;

(b) in such way as may be so specified.

(5) A direction under subsection (3) may not be given in respect of a group of persons—

(a) who are engaged in conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52); or

(b) who are taking part in a procession in respect of which—

(i) written notice has been given in accordance with subsections (2) and (3) of section 62 of the Civic Government (Scotland) Act 1982 (c. 45);

(ii) by virtue of subsection (6) or (7) of that section such notice is not required to be given.

Powers under section 21: supplementary

22

(1) A direction under section 21—

(a) may be given orally;

(b) may be given to any person individually or to two or more persons together; and

(2) A person who, without reasonable excuse, knowingly contravenes a direction given to the person under section 21 shall be guilty of an offence and liable on summary conviction to—

(a) a fine not exceeding level 4 on the standard scale; or

(b) imprisonment for a term not exceeding 3 months,

or to both.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Guidance and research

Guidance in relation to dispersal of groups

23

(1) A person exercising a power by virtue of this Part shall, in the exercise of the power, have regard to any guidance given by the Scottish Ministers about—

(a) the exercise of the power; and

(b) any other matter relating to the power.

(2) The Scottish Ministers shall lay before the Scottish Parliament a copy of any guidance such as is mentioned in subsection (1).

Operation of Part: arrangement of study

24

(1) The Scottish Ministers shall—

(a) arrange for the carrying out of a study into the operation of this Part; and

(b) lay a report on the results of the study before the Scottish Parliament within 3 years of the date on which the whole of the Part was first in force.

(2) The Scottish Ministers shall make such preparations for the carrying out of the study as are necessary to enable the study to commence as soon as the whole of the Part is in force; and such preparations may include, in particular, the instruction of a research team and the formation of a research advisory group to assist in the direction of the study.

Interpretation

Interpretation of Part 3

25

(1) In this Part—

“public place” means any place to which the public have access at the material time (whether on payment of a fee or otherwise); and includes—the doorways or entrances of premises abutting on any such place;a road (as defined in section 151(1) of the Roads (Scotland) Act 1984 (c. 54));any common passage, close, court, stair or yard pertinent to any tenement or group of separately owned houses; andany place to which the public do not have access but to which persons have unlawfully gained access; and

“relevant locality” has the meaning given by section 19(1)(a).

(2) In this Part, any reference to the presence or behaviour of a group of persons includes a reference to the presence or behaviour of any one or more of the persons in the group.

Part 4 — Closure of premises

Closure notices

Authorisation of closure notice

26

(1) Subject to subsections (2) to (3B), a senior police officer may authorise the service of a notice (a “closure notice”) prohibiting access to premises by any person other than—

(a) a person who habitually resides in the premises; or

(b) the owner of the premises.

(2) The Scottish Ministers may by regulations specify premises or descriptions of premises in respect of which an authorisation under subsection (1) may not be given.

(3) A senior police officer may , in a case involving antisocial behaviour, authorise the service of a closure notice only where the senior police officer—

(a) has reasonable grounds for believing that—

(i) at any time during the immediately preceding 3 months a person has engaged in antisocial behaviour on the premises; and

(ii) the use of the premises is associated with the occurrence of relevant harm; and

(b) is satisfied that—

(i) the local authority for the area in which the premises are situated has been consulted; and

(ii) reasonable steps have been taken to establish the identity of any person who lives on, has control of, has responsibility for or has an interest in the premises.

(3A) A senior police officer may, in a case involving an exploitation offence, authorise the service of a closure notice only where the senior police officer—

(a) has reasonable grounds for believing that—

(i) such an offence is being (or, at any time in the immediately preceding 3 months, was) committed in the premises, or

(ii) the premises are being (or, at any time in the immediately preceding 3 months, have been) used for or in connection with the commission of such an offence, and

(b) is satisfied that—

(i) the local authority for the area in which the premises are situated has been consulted, and

(ii) reasonable steps have been taken to establish the identity of any person who lives on, has control of, has responsibility for or has an interest in the premises.

(3B) Subsection (3A) is without prejudice to subsection (3) (including in so far as subsection (3) is applicable in relation to a brothel or other place where prostitution may occur).

(4) An authorisation given under subsection (1) shall, if given orally, be confirmed by the senior police officer in writing as soon as is practicable.

Service etc.

27

(1) This section applies where the service of a closure notice in respect of premises is authorised under section 26(1).

(2) The closure notice shall be served by a constable who shall do so by—

(a) fixing a copy of the notice to—

(i) at least one prominent place on the premises;

(ii) each normal means of access to the premises; and

(iii) any outbuildings that appear to the constable to be used with or as part of the premises; and

(b) giving a copy of the notice to—

(i) each person identified in pursuance of section 26(3)(b)(ii) or (as the case may be) (3A)(b)(ii); and

(ii) every other person appearing to the constable to be a person of a description mentioned there.

(3) If after having made reasonable enquiries at the time of serving the closure notice under subsection (2) the constable believes that the access of any person who occupies—

(a) any other part of the building; or

(b) any other structure,

in which the premises are situated would be impeded by the making of an order under section 30, the constable shall give a copy of the notice to that person.

(4) Failure to comply with subsection (2)(b) or (3) shall not affect the validity of the closure notice.

(5) The closure notice shall—

(a) specify the premises to which it relates;

(b) state that access to the premises by any person other than—

(i) a person who habitually resides in the premises; or

(ii) the owner of the premises,

is prohibited;

(d) state that an application is to be made under section 28 for the closure of the premises;

(e) specify such matters about that application as may be prescribed in rules of court;

(f) explain the effects of an order made under section 30; and

(g) give information about the names of, and means of contacting, persons who and organisations which provide advice about housing and legal matters in the locality of the premises.

Closure orders

Application to sheriff

28

(1) Subsection (2) applies where paragraph (a) of section 27(2) is fulfilled in relation to a closure notice.

(2) A senior police officer shall apply to the sheriff for a closure order in respect of the premises specified in the notice.

(3) Subject to subsection (4), an application under subsection (2) shall be made no later than the first court day after the day on which paragraph (a) of section 27(2) is fulfilled in relation to the notice.

(4) The sheriff may, on cause shown, allow an application which is late to proceed.

(5) An application under subsection (2) shall—

(a) specify the premises in respect of which the closure order is sought;

(b) state the grounds on which the application is made; and

(c) be accompanied by such supporting evidence (whether in documentary form or otherwise) as will enable the sheriff to determine the application.

Closure orders

29

(1) A closure order is an order that the premises specified in the order are closed to all persons for such period not exceeding 3 months as is specified in the order.

(2) A closure order may be made only in respect of all or any part of premises that are the subject of a closure notice.

(3) A closure order may include such provision as the sheriff (or, on appeal, the sheriff principal) making it considers appropriate about access to any part of the building or structure of which the premises specified in the order form part.

Application: determination

30

(1) On an application under section 28, the sheriff may, if satisfied that the conditions mentioned in subsection (2) or (2A) are met, make a closure order in respect of premises.

(2) Where the application is in a case involving antisocial behaviour, the conditions are—

(a) that a person has engaged in antisocial behaviour on the premises;

(b) that the use of the premises is associated with the occurrence of relevant harm; and

(c) that the making of the order is necessary to prevent the occurrence of such relevant harm for the period specified in the order.

(2A) Where the application is in a case involving an exploitation offence, the conditions are—

(a) that it appears that—

(i) such an offence is being (or was recently) committed in the premises, or

(ii) the premises continue to be (or recently have been) used for or in connection with the commission of such an offence, and

(b) that the making of the order is necessary to prevent the commission of such an offence for the period specified in the order.

(3) The sheriff shall, in determining whether to make a closure order in respect of premises, have regard to—

(a) the ability of any person who habitually resides in the premises to find alternative accommodation; and

(b) any vulnerability of any person such as is mentioned in paragraph (a) who has not been (as the case may be)—

(i) engaged in antisocial behaviour which has occurred in the premises, or

(ii) involved in the commission of an exploitation offence in or connected with the premises.

(3A) For the purpose of paragraph (b)(ii) of subsection (3), a person such as is mentioned in paragraph (a) of that subsection is not involved in the commission of an exploitation offence where that person is the victim of the offence.

(4) Subject to subsection (5), the sheriff shall determine an application under section 28 no later than the second court day after the day on which the application is made.

(5) The sheriff may postpone determination of the application for a period of not more than 14 days to enable a person mentioned in subsection (6) to show why a closure order should not be made.

(6) Those persons are—

(a) the occupier of the premises specified in the closure notice upon which the application proceeds;

(b) any person who has control of or responsibility for those premises;

(7) Where, under subsection (5), the sheriff postpones determination of an application, the sheriff may order that the closure notice upon which the application proceeds shall continue in effect until the determination of the application.

Enforcement

31

(1) Subject to subsection (3), a constable or an authorised person may—

(a) do anything necessary to secure closed premises against entry by any person;

(b) carry out essential maintenance or repairs to closed premises; and

(2) A constable or an authorised person acting under subsection (1) may use reasonable force.

(3) An authorised person seeking to enter closed premises under paragraph (c) of subsection (1) for the purpose of paragraph (a) of that subsection shall, if requested to do so by or on behalf of the owner, occupier or other person in charge of the premises, produce evidence of identity and authorisation.

(4) In this section, “authorised person” means a person authorised in writing by the chief constable of the Police Service of Scotland.

Extension

32

(1) The sheriff may, on the application of a senior police officer and if satisfied that it is necessary to do so to prevent the occurrence of relevant harm, make an order extending the period for which a closure order has effect for a period not exceeding the maximum period.

(1A) The sheriff may, on the application of a senior police officer and if satisfied that it is necessary to do so to prevent the commission of an exploitation offence, make an order extending the period for which a closure order has effect for a period not exceeding the maximum period.

(2) In subsections (1) and (1A), the “maximum period” is the period of 6 months less—

(a) the period specified in the order when it was made; and

(b) if the order has previously been extended, the total period for which it was previously extended.

(3) A senior police officer may , in a case involving antisocial behaviour, make an application under subsection (1) only if—

(a) it is made while the closure order has effect; and

(b) the senior police officer—

(i) has reasonable grounds for believing that it is necessary to extend the period for which the closure order has effect for the purpose of preventing the occurrence of relevant harm; and

(ii) is satisfied that the appropriate local authority has been consulted about the intention to make the application.

(3A) A senior police officer may, in a case involving an exploitation offence, make an application under subsection (1A) only if—

(a) it is made while the closure order has effect, and

(b) the senior police officer—

(i) has reasonable grounds for believing that it is necessary to extend the period for which the closure order has effect for the purpose of preventing the commission of an exploitation offence, and

(ii) is satisfied that the appropriate local authority has been consulted about the intention to make the application.

Revocation

33

(1) On the application of a person mentioned in subsection (2), the sheriff may if satisfied that a closure order is no longer necessary to prevent (as the case may be)—

(a) the occurrence of relevant harm, or

(b) the commission of an exploitation offence,

revoke the order.

(2) Those persons are—

(a) a senior police officer;

(b) the appropriate local authority;

(c) a person on whom the closure notice relating to the premises in respect of which the closure order has effect was served under section 27(2)(b) or (3); and

(d) a person who has an interest in those premises but on whom the closure notice was not served.

(3) Where an application under this section is made other than by a senior police officer the sheriff shall order service upon such senior police officer as the sheriff considers appropriate.

Access to other premises

34

(1) The sheriff may, on the application of a person who occupies or owns any part of a building or structure—

(a) in which closed premises are situated; and

(b) in respect of which the closure order does not have effect,

make an order making such provision as the sheriff considers appropriate in relation to access to any part of the building or structure in which the premises in respect of which the closure order has effect are situated.

(2) An application under subsection (1) may be made only while the closure order has effect.

(3) An order under subsection (1) may be made notwithstanding any provision made as mentioned in section 29(3).

Reimbursement of expenditure

35

(1) The sheriff may, on the application of the Scottish Police Authority or a local authority, make such order as the sheriff considers appropriate for the reimbursement by a relevant person of relevant expenditure.

(2) An application under this section may not be made after the expiry of the period of 3 months beginning with the day on which the closure order ceases to have effect.

(3) An application under this section shall be served—

(a) where the application is made—

(i) by a local authority, on the Scottish Police Authority;

(ii) by the Scottish Police Authority, on the local authority for the area in which the premises are situated; and

(b) on the relevant person.

(4) In this section—

“relevant person” means the owner of the premises in respect of which the order has (or had) effect; and

“relevant expenditure” means expenditure incurred by the applicant for the purpose of clearing, securing or maintaining the premises in respect of which the closure order has (or had) effect.

Appeals

36

(1) A person who was a party to the proceedings in which the order or decision (as the case may be) was given may appeal against—

(a) a closure order;

(b) an order extending a closure order;

(i) a closure order; or

(ii) an order extending a closure order;

(d) a decision to revoke a closure order;

(e) a decision to refuse to revoke a closure order;

(f) an order under section 34(1);

(g) a decision to refuse to make an order under section 34(1);

(h) an order under section 35(1); or

(i) a decision to refuse to make an order under section 35(1).

(2) An appeal under this section shall be made to the sheriff principal and shall be made within the period of 21 days beginning with the day on which the order or decision appealed against was made.

(3) On an appeal under this section, the sheriff principal may make any order the sheriff principal considers appropriate.

(4) The decision of the sheriff principal on an appeal under this section shall be final.

(5) In subsection (1), “order extending a closure order” means an order made under section 32(1) or (1A).

General

Offences

37

(1) If without reasonable excuse a person remains on or enters premises—

(a) in contravention of a closure notice; or

(b) in respect of which a closure order has effect,

the person shall be guilty of an offence.

(2) If a person obstructs an authorised person acting in pursuance of section 31(1) the person shall be guilty of an offence.

(3) In subsection (2), “authorised person” has the meaning given by section 31(4).

(4) A person guilty of an offence under subsection (1) or (2) shall be liable on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding the prescribed sum within the meaning of section 225(8) of the Criminal Procedure (Scotland) Act 1995 (c. 46) or to both.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Offences under section 37: arrest without warrant

38

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Guidance in relation to closure of premises

39

A person (other than a court) shall, in discharging functions by virtue of this Part, have regard to any guidance given by the Scottish Ministers about—

(a) the discharge of those functions; or

(b) matters arising in connection with the discharge of those functions.

Interpretation

Interpretation of Part 4

40

In this Part—

“appropriate local authority” means the local authority for the area in which the premises in respect of which the closure order has effect are situated;

“closure notice” has the meaning given by section 26(1);

“closure order” has the meaning given by section 29(1);

“closed premises” means premises in respect of which a closure order has effect;

“court day” means a day which is not—a Saturday or Sunday; ora day which, by virtue of an order made under section 28(1) of the Courts Reform (Scotland) Act 2014 (asp 18), is a court holiday in respect of criminal business in the sheriff court in question;

“premises” includes—any land or other place (whether enclosed or not); andany outbuildings which are or are used as part of the premises; and

“relevant harm” means—significant and persistent disorder; orsignificant, persistent and serious nuisance to members of the public.

Part 5 — Noise nuisance

Summary procedure for dealing with noise from certain places

Application of noise control provisions to local authority areas

41

(1) Sections 43 to 47 (the “noise control provisions”) apply to the area of a local authority only if the authority has so resolved.

(2) A resolution for the purpose of subsection (1) shall specify—

(a) a date (being a date at least 2 months after the passing of the resolution) on and after which the noise control provisions are to have effect in the area of the authority (the “commencement date”); and

(b) periods of the week during which noise is to be controlled by virtue of those provisions (each such period being a “noise control period”).

(3) For the purpose of subsection (2)(b), a resolution may specify—

(a) the whole week as a noise control period; and

(b) different noise control periods for different—

(i) areas;

(ii) times of year; or

(iii) other circumstances.

(4) For the purpose of subsection (2)(b), a week begins on Monday.

(5) If a local authority resolves to apply the noise control provisions to its area, it shall—

(a) cause a notice to be published (in consecutive weeks with the second notice appearing at least a month before the commencement date) in a local newspaper circulating in its area; and

(b) at least a month before the commencement date—

(i) give a copy of the resolution to the Scottish Ministers; and

(ii) give a copy of the notice mentioned in paragraph (a) to each local authority whose area adjoins its area.

(6) A notice published under subsection (5)(a) shall—

(a) state that the resolution has been passed;

(b) state the commencement date; and

(i) the general effect of the noise control provisions and sections 48, 49 and 51; and

(ii) the noise control periods specified in the resolution.

(7) Where a local authority is given a notice under subsection (5)(b)(ii), it shall take such steps as it considers necessary for the purpose of making persons in its area aware of the contents of the notice.

Revocation or variation of resolution under section 41

42

(1) A local authority may by resolution—

(a) revoke the resolution made for the purpose of section 41(1);

(b) revoke any noise control period specified in that resolution; or

(i) in addition to; or

(ii) in substitution for,

any such noise control period.

(2) A resolution under subsection (1) shall specify a date (being a date at least 2 months after the passing of the resolution) on which the provision made by the resolution shall come into effect (the “effective date”).

(3) If a local authority passes a resolution under subsection (1), it shall—

(a) cause a notice to be published (in consecutive weeks with the second notice appearing at least a month before the effective date) in a local newspaper circulating in its area; and

(b) at least a month before the effective date—

(i) give a copy of the resolution to the Scottish Ministers; and

(ii) give a copy of the notice mentioned in paragraph (a) to each local authority whose area adjoins its area.

(4) A notice published under subsection (3)(a) shall—

(a) state that the resolution has been passed;

(b) state the effective date; and

(5) Where a local authority is given a copy of a notice under subsection (3)(b)(ii), it shall take such steps as it considers necessary for the purpose of making persons in its area aware of the contents of the notice.

Noise control provisions

Investigation of excessive noise from certain places

43

(1) Where a local authority receives a complaint from an individual that excessive noise is being emitted from relevant property during a noise control period, it shall ensure that an officer of the authority investigates the latter matter.

(2) A complaint under subsection (1) may be made by any means.

(3) If in consequence of an investigation under subsection (1) an officer of a local authority is satisfied that—

(a) noise is being emitted from relevant property (the “offending property”) during a noise control period; and

(b) the noise, if it were measured from a relevant place—

(i) would; or

(ii) might,

exceed the permitted level,

the officer may serve a notice about the noise under section 44.

(4) For the purposes of subsection (3), it is for the officer of the authority dealing with the particular case—

(a) to decide whether any noise, if it were measured from a relevant place—

(i) would; or

(ii) might,

exceed the permitted level; and

(b) for the purposes of that decision to decide—

(i) from what place to assess the noise; and

(ii) whether to use any device for measuring the noise.

(5) Where—

(a) a local authority (the “first local authority”) receives a complaint under subsection (1); and

(b) the offending property is within the area of another local authority,

the first local authority may act under the noise control provisions as if the offending property were within its area, and accordingly may so act whether or not the noise control provisions apply to the area of the other local authority.

Warning notices

44

(1) A notice under this section (a “warning notice”) shall—

(a) state that an officer of the authority considers—

(i) that noise is being emitted from the offending property during a noise control period; and

(ii) that the noise exceeds, or may exceed, the permitted level, as measured from a relevant place; and

(b) state that any person who is responsible for noise which—

(i) is emitted from the offending property in the period specified in the notice; and

(ii) exceeds the permitted level as measured from a relevant place,

may be guilty of an offence.

(2) The period specified in a warning notice shall be a period—

(a) beginning not earlier than 10 minutes after the time when the notice is served; and

(b) ending at the relevant time.

(3) In subsection (2)(b), “relevant time” means the earlier of—

(a) the end of the noise control period during which the warning notice is served; and

(b) the point (if any) at which the permitted level at the time the notice is served ceases to be applicable.

(4) Subject to subsection (5), a warning notice shall be served by delivering it to any person present at or near the offending property and appearing to the officer of the authority to be responsible for the noise.

(5) If it is not reasonably practicable to identify any person present at or near the offending property as being a person responsible for the noise on whom the notice may reasonably be served, a warning notice shall be served by leaving it at the offending property.

(6) A warning notice shall state the time at which it is served.

(7) For the purpose of the noise control provisions, a person is responsible for noise emitted from relevant property if the emission of the noise is wholly or partly attributable to the person’s act, failure or sufferance.

Offence where noise exceeds permitted level after service of notice

45

(1) If a warning notice has been served in respect of noise emitted from relevant property, any person who is responsible for noise which—

(a) is emitted from the relevant property in the period specified in the notice; and

(b) exceeds the permitted level as measured from a relevant place,

shall be guilty of an offence.

(2) A person guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) It shall be a defence for a person charged with an offence under subsection (1) to show that there was a reasonable excuse for the act, failure or sufferance by reference to which the person was charged.

(4) A person shall be taken to have shown the matter mentioned in subsection (3) if—

(a) sufficient evidence is adduced to raise an issue with respect to it; and

(b) the prosecution does not prove the contrary beyond reasonable doubt.

(5) In proceedings for an offence under this section, a measurement of noise by a device is not admissible as evidence of a level of noise unless the device is an approved device and any conditions subject to which the approval was given are satisfied.

Fixed penalty notices

46

(1) Subject to subsection (3), where a relevant officer has reason to believe that a person—

(a) is committing; or

(b) has just committed,

an offence under section 45, the officer may give that person a notice (a “fixed penalty notice”) offering the person the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty.

(2) In subsection (1), “relevant officer” means—

(a) an officer of the local authority authorised for the purposes of this section; or

(b) a constable.

(3) If a fixed penalty notice is given to a person in respect of noise emitted from relevant property in the period specified in a warning notice, no further fixed penalty notice may be given to that person in respect of noise emitted from the relevant property during that period.

(4) Subject to subsection (5), a fixed penalty notice may be given to a person by delivering the notice to the person.

(5) If it is not reasonably practicable to deliver it to the person, a fixed penalty notice shall be given by leaving the notice, addressed to the person, at the offending property.

(6) A fixed penalty notice shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence.

(7) A fixed penalty notice shall state—

(a) the period during which, by virtue of paragraph (a) of section 51(2), proceedings will not be taken for the offence;

(b) the amount of the fixed penalty; and

(8) Payment of the fixed penalty may (among other methods) be made by pre-paying and posting to that person at that address a letter containing the amount of the penalty (in cash or otherwise).

(9) Where a letter containing the amount of the penalty is sent in accordance with subsection (8), payment is to be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

(10) The fixed penalty payable under this section is £100.

(11) A fixed penalty payable under this section shall be payable to the local authority whose officer issued the warning notice under reference to which the offence was committed.

Powers of entry and seizure of equipment used to make noise unlawfully

47

(1) Subsection (2) applies where—

(a) a warning notice has been served in respect of noise emitted from relevant property; and

(b) an officer of the local authority in whose area the relevant property is situated has reason to believe that, at any time in the period specified in the notice, noise emitted from the relevant property has exceeded the permitted level as measured from a relevant place.

(2) An officer of the local authority, or a person authorised by the authority for the purpose, may seize and remove any equipment which appears—

(a) to be being; or

(b) to have been,

used in the emission of the noise.

(3) If required to do so, a person exercising the power conferred by subsection (2) shall produce the person’s authority.

(4) If a sheriff or justice of the peace is satisfied by evidence on oath—

(a) that a warning notice has been served in respect of noise emitted from relevant property;

(b) that, at any time in the period specified in the notice, noise emitted from the relevant property has exceeded the permitted level, as measured from a relevant place; and

(i) entry of an officer of the local authority, or of a person authorised by the authority for the purpose, to the relevant property has been refused;

(ii) such a refusal is apprehended; or

(iii) a request by an officer of the authority, or of such a person, for admission would defeat the object of the entry,

the sheriff or justice may grant a warrant under this subsection.

(5) A warrant under subsection (4) is a warrant authorising the local authority, by any of its officers or any person authorised by it for the purpose—

(a) to enter the relevant property for the purpose of seizing and removing any equipment which appears to be being used or to have been used in the emission of the noise; and

(b) for the purpose of exercising the power mentioned in paragraph (a), to open lockfast places on the relevant property.

(6) A person who enters premises by virtue of a warrant granted under subsection (4)—

(a) may be accompanied by such persons, and take such equipment, as may be necessary; and

(b) shall, where the relevant property is unoccupied on the person’s leaving, leave it as effectively secured against trespassers as it was when the person entered it.

(7) A person who wilfully obstructs a person—

(a) exercising the power conferred by subsection (2); or

(b) exercising the power conferred by a warrant granted under subsection (4),

shall be guilty of an offence.

(8) A person guilty of an offence under subsection (7) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(9) Schedule 1 (which makes further provision in relation to anything seized and removed by virtue of this section) shall have effect.

The permitted level

Permitted level of noise

48

(1) For the purposes of the noise control provisions, the Scottish Ministers may by regulations prescribe the maximum level of noise (the “permitted level”) which may be emitted from relevant property.

(2) The permitted level shall be a level for noise as measured from any relevant place by an approved device used in accordance with any conditions subject to which the approval was given.

(3) Different permitted levels may be prescribed for different—

(a) periods of the week;

(b) areas or descriptions of areas;

(d) other circumstances,

and the permitted level may be prescribed partly by reference to other levels of noise.

Miscellaneous

Approval of measuring devices

49

(1) For the purposes of the noise control provisions, the Scottish Ministers may by regulations approve any type of device used for the measurement of noise.

(2) An approval under subsection (1) may be given subject to such conditions as to—

(a) the purposes for which; or

(b) the manner and circumstances in which,

devices of the type approved are to be used as may be prescribed in the regulations.

Power to provide funds to local authorities

50

(1) The Scottish Ministers may make to a local authority payments in respect of—

(a) the whole; or

(b) any part,

of the expenditure of the authority in relation to the discharge of the functions under this Part of the authority and its officers.

(2) Payments under this section shall be made at such times, in such manner and subject to such conditions as the Scottish Ministers may determine.

Fixed penalty notices: supplementary

51

(1) If a form for a fixed penalty notice is specified in an order made by the Scottish Ministers, a fixed penalty notice shall be given in that form.

(2) Where a person is given a fixed penalty notice—

(a) proceedings for the offence in respect of which the notice was given shall not be instituted before the end of the period of 28 days beginning with the date of the notice;

(b) the person cannot be convicted of that offence if the person pays the fixed penalty before the end of that period; and

(c) the person may be convicted of a further offence under section 45 in respect of noise emitted from the relevant property—

(i) after the notice is given; and

(ii) before the end of the period specified in the warning notice.

(3) In proceedings for an offence under section 45, evidence that payment of a fixed penalty was or was not made before the end of any period may be given by the production of a certificate which—

(a) purports to be signed by or on behalf of the person having responsibility for the financial affairs of the local authority; and

(b) states that payment of a fixed penalty was made on any date or, as the case may be, was not received before the end of that period.

(4) Subject to subsection (5), the Scottish Ministers may by order amend section 46(10) by substituting an amount specified in the order for the amount that is for the time being mentioned in that section.

(5) The Scottish Ministers may not specify an amount exceeding level 2 on the standard scale.

(6) Any sum received by a local authority under section 46 shall accrue to that authority.

Guidance in relation to this Part

52

A person (other than a court) shall, in discharging functions by virtue of this Part, have regard to any guidance given by the Scottish Ministers about—

(a) the discharge of those functions; and

(b) matters arising in connection with the discharge of those functions.

Interpretation

Meaning of “relevant place” and “relevant property”

53

(1) In this Part—

“relevant place” means—any place within accommodation (except, in the case of measurement of noise emitted from relevant property which is accommodation, that accommodation); andsuch other place as may be prescribed;

“relevant property” means—any accommodation;any land belonging exclusively to, or enjoyed exclusively with, any accommodation;any land not falling within paragraph (b)—to which at least two persons have rights in common; andwhich is used by those persons as a private garden;any common passage, close, court, stair, lift or yard pertinent to any tenement or group of separately owned houses; orsuch other place as may be prescribed.

(2) In subsection (1)—

“accommodation” means a building or other structure (or part of a building or other structure) used or intended to be used as a separate unit of accommodation (whether on a permanent basis or otherwise); and

“prescribed” means prescribed by the Scottish Ministers by order.

Interpretation of Part 5

54

(1) In this Part—

“fixed penalty notice” has the meaning given by section 46(1);

“noise control period” has the meaning given by section 41(2)(b);

“noise control provisions” has the meaning given by section 41(1);

“offending property” has the meaning given by section 43(3)(a);

“permitted level” has the meaning given by section 48(1); and

“warning notice” has the meaning given by section 44(1).

(2) References in this Part to approved devices are references to devices of a type approved by virtue of section 49(1).

Part 6 — The environment

Controlled waste and litter

Contraventions of section 33(1)(a) and (c) of 1990 Act: fixed penalty notices

55

After section 33 of the Environmental Protection Act 1990 (c. 43) (“the 1990 Act”) there shall be inserted—

(33A) (1) Where— (a) an authorised officer of a local authority has reason to believe that a person has committed a relevant offence in the area of that authority; or (b) a constable, or an authorised officer of a waste regulation authority, has reason to believe that a person has committed a relevant offence, he may give that person a notice under this section in respect of the offence. (2) In subsection (1) above, “relevant offence” means an offence under section 33 above in respect of a contravention of subsection (1)(a) or (c) of that section. (3) A notice under this section is a notice offering the opportunity, by paying a fixed penalty, of discharging any liability to conviction for the offence to which it relates. (4) Where— (a) a constable; or (b) an authorised officer of a waste regulation authority, gives a notice under this section to a person, he shall, no later than 24 hours after the giving of the notice, send a copy of it to the local authority in whose area the offence was committed. (5) Where a person is given a notice under this section in respect of an offence— (a) no proceedings shall be instituted for that offence before the expiration of fourteen days following the date of the notice; and (b) he shall not be convicted of that offence if he pays the fixed penalty before the expiration of that period. (6) A notice under this section shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information about the offence and shall state— (a) the period during which, by virtue of subsection (5)(a) above, proceedings will not be taken for the offence; (b) the amount of the fixed penalty; and (c) the person to whom and the address at which the fixed penalty may be paid; and without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting to that person at that address a letter containing the amount of the penalty (in cash or otherwise). (7) Where a letter is sent in accordance with subsection (6) above payment shall be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post. (8) The form of notices under this section shall be such as the Scottish Ministers may by order prescribe. (9) The fixed penalty payable in pursuance of a notice under this section shall, subject to subsection (10) below, be £50. (10) The Scottish Ministers may by order substitute a different amount (not exceeding level 2 on the standard scale) for the amount for the time being specified as the amount of the fixed penalty in subsection (9) above. (11) In any proceedings a certificate which— (a) purports to be signed by or on behalf of the proper officer for the local authority in whose area the offence was committed; and (b) states that the payment of a fixed penalty was or was not received by a date specified in the certificate, shall be evidence of the facts stated. (12) A fixed penalty payable in pursuance of a notice under this section shall be payable to the local authority in whose area the offence was committed; and as respects the sums received by a local authority, those sums shall be treated as if the penalty were a fine imposed by a district court. (13) In this section— - “authorised officer” means an officer of the authority in question who is authorised in writing by the authority for the purpose of issuing notices under this section; - “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39); and “area”, in relation to a local authority, means the local government area (within the meaning of that Act) for which the council is constituted; - “proper officer” means the officer who has, as respects the authority, the responsibility mentioned in section 95 of the Local Government (Scotland) Act 1973 (c. 65) (financial administration).

Litter: power of constables to issue fixed penalty notices

56

(1) Section 88 of the 1990 Act (fixed penalty notices for litter) shall be amended as follows.

(2) In subsection (1)—

(a) the words “on any occasion” and “finds a person who he” shall be repealed;

(b) for “has on that occasion” there shall be substituted “ that a person has ”;

(c) the words from “an”, where it first occurs, to “authority”, where it secondly occurs, shall become paragraph (a) of that subsection; and

(d) after “authority”, where it secondly occurs, there shall be inserted

; or (b) a constable has reason to believe that a person has committed an offence under that section,

(3) After subsection (1) there shall be inserted—

(1A) Where a constable gives a notice under this section to a person, he shall, no later than 24 hours after the giving of the notice, send a copy of it to the litter authority in whose area the offence was committed.

(4) After subsection (5) there shall be inserted—

(5A) A fixed penalty payable in pursuance of a notice under this section shall be payable to the litter authority in whose area the offence was committed.

(5) In subsection (6)—

(a) the words “to a litter authority” are repealed; and

(b) for “the”, where it thirdly occurs, there shall be substituted “ a litter ”.

(6) In subsection (7), after “amount”, where it first occurs, there shall be inserted “ (not exceeding level 2 on the standard scale) ”.

(7) In subsection (8)(a)(ii), after “officer” there shall be inserted “ for the litter authority in whose area the offence was committed ”.

Directions in respect of duty under section 89 of 1990 Act

57

(1) Sections 89, 91 and 92 of the 1990 Act shall be amended as follows.

(2) In section 89 (duties to keep land etc. free of litter), after subsection (6) there shall be inserted—

(6A) The Scottish Ministers may give to any person subject to a duty imposed by subsection (1) or (2) above such directions as they consider necessary or expedient for securing compliance by such person with such duty. (6B) A person to whom a direction is given under subsection (6A) shall comply with the direction. (6C) A direction under subsection (6A) may— (a) be given generally or to a specific person; (b) make different provision for different persons and different cases or circumstances; (c) include provision specifying, in relation to any factor by reference to which a person’s discharging of any such duty can be measured, standards to be met by the person. (6D) The Scottish Ministers shall— (a) cause— (i) any direction under subsection (6A) above; and (ii) any variation or revocation of such a direction, to be published; and (b) cause copies of each such direction, variation or revocation to be made available to the public.

(3) In section 91 (litter abatement orders: applications by aggrieved persons), in subsection (11)—

(a) after “A”, where it first occurs, there shall be inserted—

(a) direction under section 89(6A); or

;

(b) the words “code of practice under section 89(7)” shall become paragraph (b); and

(4) In section 92 (litter abatement notices: litter authorities), in subsection (8)—

(a) after “A”, where it first occurs, there shall be inserted—

(a) direction under section 89(6A); or

;

(b) the words “code of practice under section 89(7)” shall become paragraph (b); and

Graffiti

Power of local authority to serve notice about graffiti

58

(1) Where it appears to a local authority that—

(a) a relevant surface in its area has been defaced by graffiti; and

(b) the defacement is—

(i) detrimental to the amenity of the locality; or

(ii) offensive,

the authority may serve a graffiti removal notice on any responsible person.

(2) A graffiti removal notice is a notice requiring the person on whom it is served to remove, clear or otherwise remedy the defacement described in the notice before the expiry of such period as may be specified in the notice (being a period of not less than 28 days beginning with the day on which the notice is served).

(3) A relevant surface is—

(a) any surface of—

(i) a public road; or

(ii) any building, structure, apparatus, plant or other object on such a road; or

(b) where subsection (4) or (5) applies, any surface of—

(i) land owned, occupied or controlled by a relevant body; or

(ii) any building, structure, apparatus, plant or other object on such land.

(4) This subsection applies where the land is public land.

(5) This subsection applies where—

(a) the surface is visible from public land; or

(b) the surface is not visible from public land but is visible to members of the public from land owned, occupied or controlled by—

(i) the relevant body which owns, occupies or controls the land; or

(ii) any other relevant body,

which they are on for the purpose of using that body’s services or facilities.

(6) For the purposes of this section, a road or land is public if the public are entitled or permitted to have access to it (with or without payment).

(7) A local authority may at any time withdraw a graffiti removal notice issued by it.

(8) The withdrawal, under subsection (7), of a graffiti removal notice (the “withdrawn notice”) shall not affect the power of the local authority to issue a further graffiti removal notice in respect of the defacement described in the withdrawn notice.

(9) In this section—

“educational institution” has the meaning given by section 98(3) of the 1990 Act and includes the governing body of such an institution;

“graffiti” includes painting, writing, soiling, marking or otherwise defacing by whatever means;

“relevant body” means—an educational institution; ora statutory undertaker;

“responsible person” means, in relation to a surface, a person who owns, leases, occupies, controls, operates or maintains the thing of which it is a surface;

“road” has the meaning given by section 151(1) of the Roads (Scotland) Act 1984 (c. 54);

“statutory undertaker” has the meaning given by section 98(6) of the 1990 Act; and

“surface” includes a surface—on the inside of a thing; ornot exposed to the weather.

Power to modify meaning of “relevant surface”

59

(1) The Scottish Ministers may by order modify—

(a) paragraph (a) or (b) of subsection (3); or

(b) subsection (4), (5) or (6),

of section 58.

(2) An order under subsection (1) may make such modifications of subsection (9) of that section as the Scottish Ministers consider appropriate in consequence of any modification made by virtue of subsection (1).

Graffiti removal notice: content and service

60

(1) A graffiti removal notice shall explain the effects of sections 61, 63 and 64.

(2) Subject to subsection (3), subsections (2) to (5) of section 160 of the 1990 Act shall apply in relation to the service of a graffiti removal notice as they apply to any notice required or authorised to be served under that Act.

(3) Where, after reasonable enquiry, a local authority is unable to ascertain the name or proper address of any person upon whom a graffiti removal notice may be served, it may—

(a) affix the notice to the surface to which it relates; and

(b) in so far as is reasonably necessary for that purpose, enter any land.

(4) In subsection (3), “proper address” shall be read in accordance with section 160(4) and (5) of the 1990 Act.

(5) Where a graffiti removal notice is affixed in accordance with subsection (3), it shall be treated as having been served on a person on whom it may be served.

Non-compliance with graffiti removal notice

61

(1) Subsection (2) applies where a person on whom a graffiti removal notice is served (the “responsible person”) does not comply with it.

(2) The local authority that served the notice or a person authorised by it may—

(a) remove, clear or otherwise remedy the defacement; and

(b) in so far as is reasonably necessary for that purpose, enter any land.

(3) Where subsection (4) applies, a local authority may recover from the responsible person expenditure reasonably incurred by virtue of subsection (2).

(4) This subsection applies where the local authority has served on the responsible person a notice setting out—

(a) the amount of; and

(b) details of,

the expenditure which it proposes to recover.

(5) Subsections (2) to (5) of section 160 of the 1990 Act shall apply in relation to the service of a notice mentioned in subsection (4) as they apply to notices required or authorised to be served under that Act.

Guidance to local authorities about graffiti removal functions

62

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Antisocial Behaviour etc. (Scotland) Act 2004

Part 1 — Antisocial behaviour strategies

Antisocial behaviour strategies

1

Reports and information

2

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

3

Part 2 — Antisocial behaviour orders

Antisocial behaviour orders

Antisocial behaviour orders

4

Antisocial behaviour orders: variation and revocation

5

Appeals: effect on competence of application under section 5

6

Interim antisocial behaviour orders

Interim antisocial behaviour orders

7

Notification of orders

Notification of making etc. of orders and interim orders

8

Breach of orders

Breach of orders

9

Breach of orders: prohibition on detention of children

10

Breach of orders: arrest without warrant

11

Orders in respect of children

Sheriff’s power to refer case to children’s hearing

12

Sheriff’s power to make parenting order

13

Provision of information and records

Provision of information to local authorities

14

Records of orders

15

Guidance and research

Guidance in relation to antisocial behaviour orders

16

Arrangement of study into operation of Part

17

Interpretation

Interpretation of Part 2

18

Part 3 — Dispersal of groups

Authorisations and powers

Authorisations

19

Authorisations: supplementary

20

Powers exercisable in pursuance of authorisations

21

Powers under section 21: supplementary

22

Guidance and research

Guidance in relation to dispersal of groups

23

Operation of Part: arrangement of study

24

Interpretation

Interpretation of Part 3

25

Part 4 — Closure of premises

Closure notices

Authorisation of closure notice

26

Service etc.

27

Closure orders

Application to sheriff

28

Closure orders

29

Application: determination

30

Enforcement

31