Improving protections in the justice system for women and girls: consultation

Prosecutorial powers to impose non-harassment orders

The issue

This section explains how court imposed non-harassment orders (NHOs) are used to protect people at risk of harassment. It explains why they are particularly relevant in protecting women and girls; the context as to why views are being sought on providing new NHO powers available for prosecutors; and how current law on NHOs operates. It also lays out key considerations and Scottish Government views on this issue.

The harm caused to women and girls

Criminal offending by men against women and girls often involves harassment. Statistics on charges reported to COPFS for consideration of prosecution found that in 2024/25, 93% of those charged with offences under the Domestic Abuse (Scotland) Act 2018 and 85% of those charged with offences with a statutory domestic abuse aggravation were male.

Statistics provided by COPFS to the Scottish Sentencing Council show that, in 2022/23, 84% of stalking charges reported to COPFS involved a male perpetrator.

Offences involving harassment may involve psychological abuse or physical abuse or a mix of both. There is a range of laws that can be used to protect women and girls from such abuse with, for example, the domestic abuse offence capable of holding perpetrators to account.

Where a conviction arises in a case involving harassment such as a domestic abuse conviction, the criminal court has powers to put in place protective measures for the victim. One of the main ways in which protection can be provided is through imposition of an NHO.

An NHO is an order which requires a person to refrain from certain conduct in relation to the victim. This prohibited conduct will be determined by the court, informed by the circumstances of the case. Examples of prohibited conduct may include not approaching the victim’s home or place of work.

While offending behaviour itself causes great harm to victims, the aftermath of offending can continue to cause harm. In particular, where a victim feels they may be subject to further offending or harassment by the perpetrator, NHOs can provide security and protection for victims, with breaches of NHOs being a criminal offence on which the police can take action.

The context of the issue being raised

COPFS has taken significant steps to improve its operational response in dealing with cases involving violence against women and girls. Many of these steps are entirely a matter for the independent COPFS to progress. However, where COPFS lacks sufficient statutory powers, legislation is needed to provide relevant new powers.

Within this context, COPFS has asked the Scottish Government to consider developing legislation that would provide new powers for prosecutors to offer NHOs as an alternative to prosecution.

COPFS has indicated this would enhance its ability to ensure suitable protections are put in place for people subject to harassment without the need for a prosecution to be progressed. This would help reduce harm arising for individuals, including women and girls.

The current law

Prosecutors have powers to offer people accused of having committed a criminal offence an alternative to prosecution, such as a:

• warning by the Procurator Fiscal
• fiscal fine of up to £500
• compensation order of up to £5,000
• fiscal work order (which means that the accused is offered the chance to carry out between 10 and 50 hours of unpaid work as an alternative to court proceedings)
• road traffic fixed penalty
• diversion from prosecution (diversion is a process by which prosecutors are able to refer a case to social work or other identified agency as a means of addressing the underlying causes of offending when this is deemed the most appropriate course of action)

The COPFS website provides information on use of alternatives to prosecution and states that: “Alternatives to prosecution may be used where the Procurator Fiscal considers that it is in the public interest to take action, but prosecution may not be the most appropriate course of action. This way, the accused accepts responsibility for the crime but will not have a formal criminal conviction recorded against their name and witnesses are not required to attend court to give evidence”.

However, when offering an alternative to prosecution in a case involving misconduct towards an identifiable complainer or complainers, COPFS has no powers to require that, in accepting an alternative to prosecution, the accused must agree that a NHO be made that can prohibit them from certain conduct directed towards the complainer.

At present, only a court can make an NHO following conviction. There is a separate power for anyone who claims to have suffered harassment to raise an action in the civil courts for an NHO.

Where a person is convicted for any offence involving misconduct towards a person, the prosecutor can apply to the court for an NHO to made against the offender.

Where a person is convicted for a domestic abuse offence, the court is required to consider whether it is necessary to make an NHO to protect the victim from further abuse, and to make an NHO unless they conclude that it is not necessary. Provision in the Victims, Witnesses, and Justice Reform (Scotland) Act 2025 will, when it comes into effect, extend this approach to stalking and certain sexual offences.

Key considerations – principle of providing COPFS with new powers

COPFS recognises that victims of gendered abuse face many barriers when engaging with the criminal justice process. It is recognised that the justice response can be lengthy and remaining engaged is difficult. There are many reported cases where there is sufficient evidence to prosecute, and it is in the public interest to prosecute, but the victim is vulnerable and engagement with the justice process is tricky. In some cases, it may be appropriate for COPFS to have the power to impose an NHO as an alternative to prosecution.

COPFS suggests that this would be in a relatively low number of cases of gender-based violence, but may close a current gap in access to justice. Research by Caledonian University has shown that victims of domestic abuse prioritise their safety and the safety of their children above all. This makes an NHO the most important disposal for victims in achieving safety and a sense of justice.

There is an argument that it may be beneficial to provide COPFS with powers to make an NHO against a person who has accepted an offer of an alternative to prosecution. It would be a condition of accepting the alternative to prosecution that the accused accept that they are subject to the NHO. Where an accused person does not wish to accept the terms of an NHO, it would be open to them to decline the offer of an alternative to prosecution. In such cases, a presumption in favour of prosecution would remain.

This may be particularly useful as an option for COPFS in dealing with domestic abuse cases that would otherwise be prosecuted at summary level, and which would be unlikely to result in a custodial sentence being imposed by the court if the accused is convicted.

The use of an alternative to prosecution could reduce uncertainty for victims by enabling cases to be resolved more quickly than if the case has to go to court. Furthermore, the adversarial process is inevitably challenging for victims, and while only around 10-13% of summary cases will result in an evidence-led trial, the possibility of having to give evidence in court and potentially being subject to cross-examination can be stressful, even where special measures for potentially vulnerable witnesses are put in place.

Prosecutors are understandably reluctant to offer alternatives to prosecution in domestic abuse cases where doing so means that a potential victim would forfeit the possibility of having an NHO put in place to protect them from future abuse by the accused person.

As a result, cases that might otherwise be capable of being dealt with by the use of an alternative to prosecution are currently prosecuted in court, with resultant increased stress and uncertainty for the victim, as well as diverting COPFS, judicial and defence resource away from other cases.

Set against this, however, it is recognised that some see an alternative to prosecution as a lesser penalty. Some might argue that any case which is serious enough that a court would consider making an NHO if the accused is convicted should be prosecuted in court. However, COPFS envisages that where an NHO is imposed in cases of domestic abuse, it would be recorded for use in helping assess risk for the purposes of the Disclosure Scheme for Domestic Abuse operated by Police Scotland.

If new powers were to be afforded to COPFS, a question arises whether they might be limited to only particular offences. However, harassment can occur within a range of offences and providing a limitation may hinder the ability of the potential benefits to be realised. Alternatives to prosecution are available for any case that can be tried summarily. This is informed by COPFS’ policy on the use of alternatives to prosecution.

Scottish Government view

We consider it is appropriate to assess whether new powers should be provided for COPFS to help improve protection for victims.

We are looking for views on the principle of whether powers to offer alternatives to prosecution that include NHOs should be provided for COPFS. In considering this, there are a number of issues to assess.

Question 9: Do you agree to COPFS being given a power to make an NHO against a person when offering an alternative to prosecution?

Key considerations – how new powers might operate

Where an NHO is made by a criminal court, both the person against whom it is made and COPFS can apply to the court for that NHO to be varied or revoked. An application for a variation might be made where the circumstances of either the victim or perpetrator changes in ways that may be required to be reflected in the conditions of an NHO. For example, the NHO may prohibit the perpetrator from attending or approaching the victim’s address and the victim may move during the time period within which the NHO has effect. An application for an NHO to be revoked may be made when there has been (or where the applicant claims there has been) a reconciliation between the perpetrator and victim and the victim no longer wishes for the NHO to be in place.

Where an NHO has been made by a court, it follows that consideration of whether to vary or revoke an NHO is also properly a decision for the court. It might be argued that where an NHO is imposed as a condition of an alternative to prosecution made by COPFS, it might be more reasonable for any such application to be considered by COPFS in the first instance. However, there may be a case for providing the person against whom an NHO is made to have a right of appeal to a court if they do not accept the decision of COPFS on an application to vary or revoke an NHO. This could be either a refusal on the part of COPFS to vary or revoke an NHO on the application of the accused/perpetrator, or a decision to vary at the request of the complainer/victim.

There is no statutory limit to the length of time for which a court can make an NHO on conviction. There is considerable variation in the length of time for which NHOs have effect, with a court sometimes making an NHO that will have effect for a period of 12 months, and on occasion when dealing with conviction for the most serious offences, it may make an NHO that has effect for an indefinite period.

It is expected that an alternative to prosecution would only be offered in cases at the less serious end of the spectrum that would otherwise be prosecuted in the summary courts. As such, it seems reasonable that there should be a limit to the length of time for which an NHO imposed by COPFS as part of an alternative to prosecution should have effect. It is suggested a period of 12 months would be reasonable. If COPFS considers a longer NHO may be required to deal with the risk posed by the accused, it could prosecute the case in court.

Scottish Government view

We support the effective operation of any new powers. These matters of detail will be considered if legislation is developed, but we welcome views if respondents would like to offer them.

Question 10: Do you agree on how applications to vary or revoke an NHO made by COPFS should be handled with court involvement suggested for any appeals?

Question 11: Do you agree an NHO made by COPFS as part of an alternative to prosecution should have a maximum time period of 12 months?