10 Mar 2025
By Stephen Forsyth, Legal Director, Litigation, Gilson Gray
The subject of Non-Harassment Orders (NHOs) has come to the fore in recent weeks after former Scotland rugby star Stuart Hogg was given a five-year NHO, ordering him to have no contact with his estranged wife. So, what are they, and when can they be used?
NHOs fall under the bracket of protective measures which a person can be granted by the Courts to protect themselves from an individual or individuals. In the civil context, there are two types of protective measures; interdict and NHOs. Interdict is a Court Order to stop someone doing something illegal, such as abusing you, assaulting you, vandalising your property or unlawfully using your land.
NHOs are a Court Order to stop someone doing something to you which falls short of criminal conduct, but is nevertheless conduct which amounts to harassment, such as sending you a high volume of unwanted messages/social media comments, making false allegations against you to your work/local authority or other bodies or continually attending at your home or place of work. Often, there can be fairly blurred lines as to what constitutes harassment and what is criminal behaviour. An important point to note is that the remedy is reactive, not proactive, so someone will have to endure some unwanted conduct before they can apply. Whilst interim measures are available, there must a basis for them. The person must be able to prove to the Sheriff that they have a reasonable apprehension that they will suffer the conduct complained of.
The legal position is codified in The Protection from Harassment Act 1997. Sections 8 to 11 relate to Scotland. Section 8 provides:-
(1) Every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another and:
(a) is intended to amount to harassment of that person; or
(b) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.
[F1(1A)Subsection (1) is subject to section 8A.]
(2) An actual or apprehended breach of subsection (1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question; and any such claim shall be known as an action of harassment.
(3) For the purposes of this section:
The main takeaway from this is that each person has a right enshrined in law not to be harassed. Harassment can include speech (so includes verbal abuse), and in order to get an NHO granted, you must be able to prove that you have been harassed by the same person on at least two occasions.
However, there are things to be aware of. Section 10 covers Limitation, which effectively means there is time limit on when a victim of harassment can bring claims. The time limit is three years from (a) the date of which the harassment stopped; or (b) the date later than the date mentioned in paragraph (a) on which the victim)became, or on which, in the opinion of the Court, would have been reasonably practical for them in all the circumstances for them to become aware, that the Defender (perpetrator) was a person responsible for the alleged harassment.
Further, there are statutory defences for any person accused of harassment contained in section 8(4), which provides:-
(4) It shall be a defence to any action of harassment to show that the course of conduct complained of:
(a) was authorised by, under or by virtue of any enactment or rule of law;
(b) was pursued for the purpose of preventing or detecting crime; or
(c) was, in the particular circumstances, reasonable.
If the alleged perpetrator can prove to the court that what they were doing fell under any of these categories, the NHO will be refused.
Further guidance on what amounts to harassment is found in the case of Halcyon House Limited v Baynes 2014 WL 3387688 which provides,
“It is not enough to constitute harassment merely that the conduct is irritating, annoying, unattractive or unreasonable. In order to cross the threshold, the conduct must be grave or fairly severe, amounting to oppressive or unacceptable conduct”, and “People are expected to be reasonably robust”.
Therefore, people are expected to put up with minor, annoying conduct and it is unlikely the Courts will entertain such claims favourably. At Gilson Gray, our award-winning litigation team have successfully defended NHO claims where the conduct complained of included staring, dirty looks, sneering looks, taking photographs of the complainer and their vehicle on police advice and making alleged false allegations to Police Scotland which our client could prove were not false and in one instance led to a conviction.
If a person can successfully establish that they are the victim of a course of conduct of harassment the Court can i) grant an interdict or interim interdict; ii) grant a NHO or interim NHO requiring the perpetrator to refrain from the conduct complained for a specific period or an indeterminate period; and iii) award the victim a payment of money for the anxiety caused by the harassment or any financial loss resulting from it.
If you are a victim of harassment within the last three years, contact the Litigation Team at Gilson Gray today. Our expert team can assist in taking swift action. It may be that an initial cease and desist letter will resolve the issue. Likewise, we can raise proceedings for a NHO and financial damages against the perpetrator. If there is a defence to the action as outlined above, we can defend the claim on your behalf.
Whether you are a victim or alleged perpetrator of harassment, don’t get caught in a legal scrum of NHOs…contact the Litigation Team at Gilson Gray today.
To discuss any of the points raised further, please contact a member of our Litigation team here.
