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Crown Office & Procurator Fiscal Service submission of 25 November 2021

PE1898/C – Make entering someone’s home without their permission or warrant a crime

Thank you for your letter dated 5 November 2021 seeking the views of COPFS on the proposed action within Petition 1898.

The Crown Office and Procurator Fiscal Service (COPFS) recognises that people in Scotland should feel safe and secure within their own home.

In response to the Petition raised by Ms Gow, it may be useful to highlight that prosecutors apply the published Prosecution Code in relation to cases reported to COPFS. The individual facts and circumstances of each case are considered when assessing what prosecutorial action, if any, is in the public interest and any appropriate charges.

Prosecutors take into account factors including, but not restricted to, the nature of the offence, any previous offending history by an accused, the circumstances of any victim or witness (including vulnerabilities) and the circumstances of the accused person.

There are various offences, both statutory and at common law, which may be relevant in circumstances where a person enters the home of another without permission. These include:

• Section 57 of the Civic Government (Scotland) Act 1982 which makes it an offence for any person, without lawful authority to be there, to be found in or on a building or other premises, whether enclosed or not, or in its curtilage or in a vehicle or vessel so that, in all the circumstances, it may reasonably be inferred that he intended to commit theft there;
• Section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995 (vandalism) or malicious mischief (common law) may be appropriate where damage is cause deliberately;
• Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 makes it an offence to act in a threatening or abusive manner; and
• Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 (stalking) makes it an offence to engage in a course of conduct which is intended to cause fear or alarm, or is reckless as to whether it causes fear or alarm, and actually causes a person fear or alarm. This may be appropriate if the behaviour is repeated.

This is not intended to be an exhaustive list. As highlighted above, the facts and circumstances of each case will determine what, if any, charge is appropriate.

Any decision as to whether there should be a separate offence to respond to the specific circumstances narrated in the Petition is a matter for the Scottish Parliament.

I trust this information is of assistance.