Section 12 - Sheriff's power to refer case to children's hearing

42.     Where an antisocial behaviour order or interim order is granted against a person aged 12 to 15 years, section 12 introduces a power for the sheriff to require the Principal Reporter to refer the case to a children's hearing.

43.     Subsections (3) to (5) make consequential amendments to the Children (Scotland) Act 1995. The effect of these amendments is that where the sheriff exercises the power to require the Principal Reporter to refer the case to the children's hearing that referral shall be treated as a ground for considering whether the child needs to placed under compulsory measures of supervision. In such cases the Principal Reporter is required to arrange a children's hearing. Where a child is already subject to a supervision requirement the decision of the sheriff to require a children's hearing to be arranged will have the effect of requiring the Principal Reporter to set up a children's hearing to review existing supervision requirements.

Section 13 - Sheriff's power to make parenting order

44.     Section 13 provides that where a sheriff makes an antisocial behaviour order in civil proceedings in respect of a child, the sheriff may make a parenting order as well if satisfied that the making of the parenting order is desirable in the interests of preventing the child from engaging in further antisocial behaviour and that the Scottish Ministers have notified the court that the relevant authority has made arrangements that would enable the parenting order to be complied with. Provisions on parenting orders are under Part 9 of the Act.

45.     Where a court is considering making a parenting order under section 13 it will be obliged to comply with the provisions about procedural requirements in section 108 and the substantive considerations set out in section 109 and 110. The provisions of sections 105, 106 and 107 in relation to review of the order, appeals and failure to comply with the order also apply to a parenting order made under this section. As will the provision made at section 111 which restricts reporting of the proceedings. Section 138 of the Act which makes provision for proceedings to be conducted and determined in private also applies to proceedings under section 13.

Section 14 - Provision of information to local authorities

46.     Section 14 requires that a registered social landlord provides the relevant local authority with a copy of each antisocial behaviour order or interim order it obtains to ensure records of orders maintained by the local authority are up-to-date and comprehensive. The landlord must also copy any orders as varied. Subsection (2) requires the registered social landlord to notify each relevant local authority on the date on which an antisocial behaviour order was revoked, or in the case of interim orders, recalled. Subsection (3) provides the meaning of "relevant local authority" in this context. It means a local authority whose area includes premises provided or managed by the social landlord in relation to any person for whose protection the order was made.

Section 15 - Records of orders

47.     Section 15 places a duty on local authorities to keep records of antisocial behaviour orders made on the application of the authority and of orders in respect of which a copy has been received from a registered social landlord (which is obliged under section 14 to provide such information).

48.     Subsection (2) provides that the record shall specify the person in respect of whom the order was made, the prohibitions imposed by the order, the time period of the order (including if the order is indefinite), any variation of the order, the date is revoked if it is revoked, the date on which an interim order is recalled if it is recalled and any other matters as specified by the Scottish Ministers. These regulations are subject to negative resolution procedure.

49.     Subsection (3) makes provision about the disclosure of information contained in the record of orders. The local authority shall, on a request to do so by the Scottish Ministers, the Principal Reporter, another local authority, a chief constable or a registered social landlord, disclose to the person making the request information contained in the record of antisocial behaviour orders.

Section 16 - Guidance in relation to antisocial behaviour orders

50.          Section 16 provides that any person (other than a court) discharging any functions under Part 2 of the Act (other than section 13) shall have regard to guidance issued by the Scottish Ministers on those matters and matters arising in connection with the discharge of those functions.

Section 17 - Arrangement of study into operation of Part

51.     Section 17 requires the Scottish Ministers to arrange for the carrying out of a study into the operation of Part 2 of the Act and to lay the results of that study before the Scottish Parliament within 3 years of the whole of the Part coming into effect.

52.     Subsection (2) provides that the Scottish Ministers must make all necessary preparations for the carrying out of the above study so as to allow it to commence as soon as the whole of the part is in force. This subsection also sets out some of the things that may be included in these preparations.

Section 18 - Interpretation of Part 2

53.     Section 18 provides interpretation of a number of expressions used in Part 2.

PART 3 - DISPERSAL OF GROUPS

Section 19 - Authorisations

54.     Section 19 allows a senior police officer (that is an officer of or above the rank of superintendent) to issue an authorisation of the exercise of the powers under section 21 in respect of a particular locality within their police area. This can only be done where that senior officer has reasonable grounds for believing that alarm or distress has been caused to members of the public by the presence or behaviour of groups of two or more persons in public places in that locality. That locality is defined as "a relevant locality" for the purposes of Part 3 at subsection (1). Before giving an authorisation the senior officer must also have reasonable grounds for believing that antisocial behaviour is a significant, persistent and serious problem in the relevant locality.

55.     Subsection (2) sets out that such an authorisation may last for a specific period and that the authorisation may also choose to refer to times or days within the period: for example to Friday and Saturday nights. Subsection (3) sets out the form in which the authorisation must appear and what it must include (for example when the powers are exercisable). Subsection (4) provides that the senior officer must consult the local authority or authorities whose area includes the whole or part of the relevant locality before giving an authorisation; and subsection (5) that the authorisation shall not exceed 3 months.

Section 20 - Authorisations: supplementary

56.     Before the powers under section 21 become exercisable, the senior officer who gave the authorisation is required to ensure that an authorisation notice is published in a newspaper circulating in the relevant locality and that it is displayed in some conspicuous place or places within the relevant locality.

57.     Subsection (2) sets out what must be included in an authorisation notice: a statement that the authorisation has been given and specification of the area affected and the period it will last (and any specified times within that period).

58.     Subsection (3) makes provision for withdrawal of the authorisation (for example, if the police are satisfied that it is no longer necessary to prevent the occurrence of disorder or serious nuisance). Subsection (4) requires the police officer to consult the relevant local authority or authorities about the proposed withdrawal. Subsections (5) and (6) set out that the withdrawal of an authorisation shall not affect the exercise of any power which occurred before the withdrawal and that the giving or withdrawal of an authorisation shall not prevent the giving of a further authorisation in respect of a locality to which the earlier authorisation relates.

Section 21 - Powers exercisable in pursuance of authorisations

59.     Subsection (1) sets out that 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 give a direction requiring the persons in the group to disperse. In doing so the constable must have regard to whether the exercise of the power to disperse would be likely to result in the persons in the group causing less harm or distress to members of the public there than if the power were not exercised, subsection (2).

60.     In terms of subsection (3), the constable may also give a direction requiring any of those persons who do not live in the locality to leave it or any part of it; or a direction prohibiting any of those persons who do not live in the area from returning to it or any part of it for a specified period of up to 24 hours. Subsection (4) requires that the constable may require the first two of these directions to be complied with either immediately or at such a time and in such a way as is specified in that direction.

61.     Subsection (5) sets out that none of the above directions may be given by a constable in respect of a group of persons who are engaged in conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992. Such conduct is defined as attendance by a person, in contemplation or furtherance of a trade dispute, at or near his own place of work, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working. If the person is an official of a trade union, then such attendance can take place at or near the place of work of a member of the union whom he is accompanying and whom he represents. Subsection (5) also sets out that none of the above directions may be given by a constable in respect of a group of persons who are taking part in a procession which has been notified in accordance with section 62 of the Civic Government (Scotland) Act 1982 (or which, by virtue of subsection (6) or (7) of that section, does not require to be notified). This Act deals with all processions which take place in a public place, notice of which must be given to the regional or islands council in whose area the procession is to be held.

Section 22 - Powers under section 21: supplementary

62.     Subsection (1) sets out that a direction may be given orally; to an individual or to a group; and that it may be withdrawn or varied by the constable who gave it.

63.     Subsection (2) sets out that knowingly contravening any direction, without reasonable excuse, will be an offence and could result in a fine, or imprisonment or both. Subsection (3) sets out that where such an offence is being committed the constable may arrest the person without warrant. Subsection (4) provides that subsection (3) is without prejudice to any power of arrest conferred by law apart from that subsection.

Section 23 - Guidance in relation to dispersal of groups

64.     Subsection (1) provides that any person exercising any power by virtue of Part 3 of the Act shall, in the exercise of the power, have regard to any guidance given by the Scottish Ministers about the exercise of the power and to any other matter relating to the power. Subsection (2) requires the Scottish Ministers to lay a copy of any such guidance before the Scottish Parliament.

Section 24 - Operation of Part: arrangement of study

65.     Subsection (1) sets out that the Scottish Ministers shall arrange for the carrying out of a study into the operation of the dispersal powers and lay a report on the results of the study before the Scottish Parliament within three years of the date on which the whole of Part 3 is first in force.

66.     Subsection (2) provides that the Scottish Ministers must make all necessary preparations for the carrying out of the above study so as to allow it to commence as soon as the whole of the part is in force. This subsection also sets out some of the things that may be included in these preparations (for example the instruction of a research team).

Section 25 - Interpretation of Part 3

67.     Section 25 provides definitions of some of the expressions used in Part 3.

PART 4 - CLOSURE OF PREMISES

Section 26 - Authorisation of closure notice

68.     Section 26 gives senior police officers (that is officers of or above the rank of superintendent) power to authorise service of a closure notice. The effect of such an authorisation is that a constable will serve on the relevant premises a closure notice. A closure notice prohibits access to the premises by any person other than a person who habitually resides in the premises or the owner of the premises. Failure to comply with the notice amounts to an offence under section 37.

69.     Subsection (3) sets out that the senior police officer may only authorise service of a closure notice where that officer has reasonable grounds for believing that at any time during the immediately preceding 3 months a person has engaged in antisocial behaviour on the premises; and that the use of the premises is associated with the occurrence of relevant harm, which is defined at section 40 as significant and persistent disorder or significant, persistent and serious nuisance to members of the public.

70.     Subsection (4) provides that an authorisation for service of a closure notice may be given orally but if so it must be confirmed in writing as soon as is practicable. Subsection (3)(b) sets out the procedural requirements which must be met before service of a closure notice can be authorised. These requirements include that the local authority must have been consulted about the proposed closure and that all reasonable steps must have been taken to establish the identity of any person who lives on, has control of, or responsibility for, or has an interest in, the premises.

71.     Subsection (2) provides that the Scottish Ministers can specify by regulations premises or descriptions of premises in respect of which such authorisations may not be given. These regulations are subject to affirmative resolution procedure.

Section 27 - Service etc.

72.     Subsections (2), (3) and (5) set out the form a closure notice shall take and the procedure associated with its service. As well as explaining the effects of a closure notice, the notice must contain certain information including specification of such matters about the application for the closure of premises as may be prescribed in rules of court and information about access to advice on housing and legal matters. The notice must be attached to at least one prominent place on the premises, each normal means of access to the premises and any outbuildings that appear to the constable to be used with or as part of the premises. The notice must be served on persons living in, having control of or responsibility for or having an interest in the premises. Under subsection (3), if after making reasonable enquiries the constable believes that the access of any person who occupies any other part of the building or structure in which the premises are situated would be impeded by the making of the order, then the constable must also give a copy of the notice to that person.

73.     Subsection (4) sets out that failure on the part of the constable to give a copy of the notice to any of the persons set out above shall not affect the validity of the closure notice.

Section 28 - Application to sheriff

74.     Subsections (1) and (2) require that once the police have served the closure notice, a senior police officer must apply to the sheriff for a closure order to be made. Subsection (3) sets out when the police must make this application and subsection (4) contains a provision for the sheriff to allow late applications. Subsection (5) sets out what is required in an application, which must include a specification of the premises in respect of which the closure order is sought; a statement of the grounds on which the application is made; and supporting evidence.

Section 29 - Closure orders

75.     Subsections (1) to (3) set out the scope of a closure order including a limitation that a closure order may be made only in respect of all or any part of the premises that are the subject of a closure notice; and a provision allowing the sheriff to rule on matters of access at the premises specified in the order. The effect of a closure order is 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.

Section 30 - Application: determination

76.     This section sets out the process the sheriff must go through before making a closure order in respect of premises.

77.     Subsection (2) sets out the conditions that must be met before the sheriff makes an order. The sheriff must be satisfied that a person has engaged in antisocial behaviour on the premises and that the use of the premises is associated with the occurrence of relevant harm; and also that the making of an order is necessary to prevent the occurrence of such relevant harm for the period specified in the order. Relevant harm is defined in section 40 as either significant and persistent disorder or significant, persistent and serious nuisance to members of the public.

78.     Subsection (3) sets out that the sheriff must also have regard to two factors in determining whether to make a closure order. First, the ability of any person who habitually resides in the premises to find alternative accommodation. And second, any vulnerability of any such person who has not been engaged in antisocial behaviour which has occurred in the premises.

79.     Subsections (4) to (6) set out that the sheriff shall determine the application no later than the second court day after the day on which the application is made; make provision for the sheriff to postpone determination of the application for a period of not more than 14 days, to enable a person to show why a closure order should not be made; and set out who is entitled to attempt to show the sheriff why a closure order should not be made. Those persons are the occupier of the premises specified in the closure notice; any person who has control of or responsibility for those premises; and any other person with an interest in those premises.

80.     Subsection (7) provides that where the sheriff postpones determination of an application the sheriff may order that the closure notice continues in effect until the determination of the application.

Section 31 - Enforcement

81.     Subsection (1) provides that, after a closure order is made, a constable or any other person authorised in writing by the chief constable (an authorised person) may enter the property in order either to do anything necessary to secure it against entry by any person or to carry out essential maintenance or repairs. Subsection (2) sets out that reasonable force may be used in order to facilitate these activities. Subsection (3) sets out that an authorised person seeking to enter closed premises in order to secure the premises must, 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.

Section 32 - Extension

82.     This section provides that 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 a closure order for a further period not exceeding the maximum period; the maximum period for an order to be in force (it cannot exceed 6 months in total); and the conditions that must be met before an application for an extension is allowed by the sheriff. These conditions include that the local authority must first be consulted.

Section 33 - Revocation

83.     Subsection (1) provides for revocation of the order, following an application, where the court is satisfied that it is no longer necessary to prevent the occurrence of relevant harm. Subsection (2) sets out who can apply to the sheriff to have the order revoked. Subsection (3) sets out that where any such application is made other than by a senior police officer the sheriff shall order service upon such senior police officer as the sheriff considers appropriate.

Section 34 - Access to other premises

84.     This section provides for the court, upon the application of a person who occupies or owns any part of a building or structure in which closed premises are situated and in respect of which the closure order does not have effect, to make an order allowing appropriate access to any part of the building or structure in which the closed premises are located. The subsections set out that such an application can only be made while the closure order has effect; and that any such order may be made notwithstanding any provision made in the original closure order about access to the closed premises.

Section 35 - Reimbursement of expenditure

85.     This section makes provision for the sheriff, upon application from a police authority or a local authority, to make an order for the reimbursement, by the owner of the premises that has been or was closed, of expenditure incurred by the applicant in clearing, securing or maintaining the closed premises. Subsection (2) sets out when such an application must be made and subsection (3) the persons on whom the application shall be served.

Section 36 - Appeals

86.     This section provides for the making of appeals in respect of orders under Part 4. Subsection (1) sets out that a person who was a party to the proceedings in which the Part 4 order or decision was given may appeal against it. Subsection (2) sets out that appeals under this section are 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. Subsection (3) sets out that on an appeal under this section the sheriff principal may make any order he or she considers appropriate and subsection (4) that any such decision is final.

Section 37 - Offences

87.     Subsections (1) to (5) set out that if without reasonable excuse a person remains on or enters premises in contravention of a closure order or notice or obstructs an authorised person who has entered the premises to secure it or carry out essential repairs, they will be guilty of an offence, which could result in a fine, or imprisonment or both. While subsection (2) - setting out that it is an offence to obstruct an authorised person - applies only to an authorised person, section 41 of the Police (Scotland) Act 1967 protects constables in a similar way.

Section 38 - Offences under section 37: arrest without warrant

88.     Subsection (1) sets out that where a constable reasonably believes that a person is committing or has committed an offence under section 37 then the constable may arrest that person without warrant.

Section 39 - Guidance in relation to closure of premises

89.     This section provides that a person (other than a court) shall, in discharging functions by virtue of Part 4 of the Act, have regard to any guidance given by the Scottish Ministers about the discharge of those functions or matters arising in connection with the discharge of those functions.

Section 40 - Interpretation of Part 4

90.     Section 40 provides definitions of various expressions included in Part 4, including of "relevant harm."

PART 5 -NOISE NUISANCE

Section 41 - Application of noise control provisions to local authority areas

91.     Section 41 enables a local authority to adopt the noise control provisions in Part 5 of the Act.

92.     Subsection (1) applies the noise control provisions set out in sections 43 to 47 of the Act to the local authority area if the local authority resolves that the provisions should apply to its area.

93.     Subsection (2)(a) provides that if a local authority resolves to apply the noise control provisions to its area, there must be a period of 2 months before the provisions take effect (the "commencement date"). Subsection (2)(b) requires specification of the periods of the week for which noise is to be controlled by the provisions (the "noise control period").

94.     Subsection (3) enables a resolution to specify the whole week as a noise control period, and different noise control periods for different areas, times of the year or other circumstances. Subsection (4) explains that a week begins on Monday. This allows local authorities to choose which periods of the day and night, days of the week, times of the year, and areas in which the noise control provisions will operate. For example, a resolution could specify noise control periods for weekend nights only i.e. on a Friday and Saturday between 7.00pm and 7.00am.

95.     Subsection (5)(a) requires a local authority, at least a month in advance of the commencement date, to have a notice published in 2 consecutive weeks in a local newspaper. Subsection (5)(b) requires the local authority to give a copy of the notice to both the Scottish Ministers and neighbouring local authorities, at least one month before the commencement date.

96.     Subsection (6) specifies certain things that the notice must state.

97.     Subsection (7) requires a neighbouring local authority, which receives a notice under subsection (5)(b)(ii), to take appropriate steps to inform persons in its area of the content of that notice.

Section 42 - Revocation or variation of resolution under section 41

98.     Section 42(1) gives local authorities the power by resolution to revoke a resolution under section 41, or to revoke, add or vary a noise control period specified in that resolution. Subsection (2) provides that a resolution must specify the date on which a resolution under subsection (1) shall come into effect (the "effective date"). The effective date must be a date at least 2 months after the passing of the resolution. The notice requirements in subsection (3) are similar to those in section 41(5). The requirements in respect of the content of a notice are set out in subsection (4) and are similar to those in section 41(6), and subsection (5) imposes a requirement on neighbouring local authorities similar to that in section 41(7).