The police act 1997 and the protection of vulnerable groups (scotland) act 2007 remedial order 2015



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Health

Health Boards

Special Health Boards

British Medical Association

General Dental Council

General Medical Council

Mental Welfare Commission

Royal College of Psychiatrists


Local Authorities

Chief Executives

Directors of Social Work

Directors of Education

Association of Directors of Education

Association of Directors of Social Work

CoSLA

SoLACE
Justice



Chief Executive, Crown Office and Procurator Fiscal Service

Chief Executive, Scottish Courts and Tribunal Service

Children’s Hearings Scotland

Faculty of Advocates

Law Society of Scotland

Lord President and Lord Justice General

Parole Board for Scotland

Sheriffs Principal

Sheriffs’ Association

Scottish Law Commission

Scottish Children’s Reporter Administration
Police

Chief Constable of Police Scotland

Scottish Police Authority

Scottish Police Federation

Association of Scottish Police Superintendents

HM Inspectorate of Constabulary Scotland


Prisons

Chief Executive, Scottish Prison Service

HM Inspectorate of Prisons

Scottish Prison Officers Association


Other Organisations including Voluntary Organisations

Apex Scotland

Barnardos

Children 1st

Howard League for Penal Reform

SACRO


Scottish Association for Mental Health

Scottish Commission for Human Rights

Scottish Commissioner for Children and Young People

Scottish Council for Voluntary Organisations

Scottish Social Services Council

The Prince’s Trust

Victim Support Scotland

Volunteer Scotland Disclosure Services

Young Scot

Order made by the Scottish Ministers, laid before the Scottish Parliament under section 14(5)(b) of the Convention Rights (Compliance) (Scotland) Act 2001 for approval by resolution of the Scottish Parliament within 120 days beginning with the date on which the order was made, not taking into account periods of dissolution or recess for more than 4 days.

SCOTTISH STATUTORY INSTRUMENTS



2015 No. 

     


The Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015

Made - - - - [ September 2015]

Coming into force - - [ September 2015]

The Scottish Ministers make the following remedial Order in exercise of the powers conferred by section 12(1) and (3) of the Convention Rights (Compliance) (Scotland) Act 2001(1) (“the 2001 Act”) and all other powers enabling them to do so.

The Scottish Ministers consider the provision made by this Order to be necessary or expedient in consequence of the provisions in the Police Act 1997(2) and the Protection of Vulnerable Groups (Scotland) Act 2007(3) in relation to disclosure of spent criminal convictions and other related matters which may be incompatible with Convention rights(4).

In accordance with section 12(2) of the 2001 Act the Scottish Ministers are of the opinion that there are compelling reasons for making a remedial order as distinct from taking any other action.

In accordance with section 14(1) of the 2001 Act it appears to the Scottish Ministers that, for reasons of urgency, it is necessary to make a remedial order without following the procedure under section 13(2) to (4) of the 2001 Act.

Citation and commencement


  1. — This Order may be cited as the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015.

    1. This Order comes into force on 10th September 2015.

Interpretation2

  1.  In this Order—

“the 1997 Act” means the Police Act 1997;

“the 2007 Act” means the Protection of Vulnerable Groups (Scotland) Act 2007; and

“the relevant date” means 10th September 2015.
Amendment of the 1997 Act

2Amendment of the 1997 Act


  1. — The 1997 Act is amended as follows.

    1. (2)In section 113A (criminal record certificates)(5)—

      1. after subsection (3) insert—

(3A) But a criminal record certificate must not give the details of a relevant matter if—

(a) those details were excluded from another criminal record certificate by virtue of an order under section 116ZB(9)(b), and

(b) it appears to the Scottish Ministers that the application under subsection (1) is made for the same purpose for which the application for the other certificate was made.;


      1. subsection (4) is repealed; and

      2. in subsection (6)—

        1. after the definition of “central records” insert—

“conviction” means a conviction within the meaning of the Rehabilitation of Offenders Act 1974(6), including a spent conviction,;

        1. in the definition of “relevant matter” for paragraphs (a) and (b) substitute—

(a) a conviction which is not a protected conviction,

(b) a caution which is not spent by virtue of schedule 3 of the Rehabilitation of Offenders Act 1974(7), and.



    1. In section 113B (enhanced criminal record certificates)(8)—

      1. after subsection (3) insert—

(3A) But an enhanced criminal record certificate must not give the details of a relevant matter if—

(a) those details were excluded from another enhanced criminal record certificate by virtue of an order under section 116ZB(9)(b), and

(b) it appears to the Scottish Ministers that the application under subsection (1) is made for the same purpose for which the application for the other certificate was made.;


      1. in subsection (4)—

        1. the words “, in the chief officer’s opinion” are repealed;

        2. for paragraphs (a) and (b) substitute—

(a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and

(b) in the chief officer’s opinion, ought to be included in the certificate.;



      1. subsection (5) is repealed;

      2. in subsection (5A)(9) the words “or (5)” are repealed; and

      3. subsection (6) is repealed.

    1. After section 116 (enhanced criminal record certificates: judicial appointments and Crown employment) insert—

116ZA Copies of criminal record certificate or enhanced criminal record certificate

(1) Subsection (2) applies where—

(a) the Scottish Ministers issue a criminal record certificate or an enhanced criminal record certificate, and

(b) the certificate does not include details of a conviction for an offence listed in schedule 8B which is—

(i) a spent conviction, but

(ii) not a protected conviction.

(2) The Scottish Ministers must send a copy of the certificate to the relevant person at the same time as they issue the certificate.

(3) Subsections (4) and (5) apply where—

(a) the Scottish Ministers issue a criminal record certificate or an enhanced criminal record certificate to an individual, and

(b) the certificate includes details of a conviction for an offence listed in schedule 8B which is—

(i) a spent conviction, but

(ii) not a protected conviction.

(4) Where—

(a) the individual notifies the Scottish Ministers before the end of the period mentioned in section 116ZB(3)(a) that the individual does not intend to make an application under section 116ZB(2), or

(b) that period expires without the individual having notified the Scottish Ministers that the individual does intend to make such an application

the Scottish Ministers must send a copy of the certificate to the relevant person as soon as possible after receiving the notification or, as the case may be, the expiry of that period.

(5) The Scottish Ministers must not send a copy of the certificate to the relevant person if the individual notifies the Scottish Ministers before the end of the period mentioned in section 116ZB(3)(a) that the individual intends to make an application under section 116ZB(2).

(6) In this section, “relevant person” means—

(a) in relation to a criminal record certificate issued under section 113A(1) or an enhanced criminal record certificate issued under section 113B(1), the person who countersigned the application for the certificate under section 113A(2)(a) or, as the case may be, 113B(2)(a),

(b) in relation to a criminal record certificate issued under section 114(1) or an enhanced criminal record certificate issued under section 116(1), the person who made the statement in relation to the certificate under section 114(2) or, as the case may be, 116(2).



116ZB Application for an order for a new criminal record certificate or enhanced criminal record certificate

(1) This section applies where—

(a) the Scottish Ministers issue a criminal record certificate or an enhanced criminal record certificate to an individual, and

(b) the certificate includes details of a conviction for an offence listed in schedule 8B which is—

(i) a spent conviction, but

(ii) not a protected conviction.

(2) The individual may apply to the sheriff for an order requiring the Scottish Ministers to issue a new certificate that does not include those details.

(3) An application under subsection (2)—

(a) may only be made if the individual, before the end of the period of 10 working days beginning with the date of the issue of the certificate, notifies the Scottish Ministers of an intention to make the application, and

(b) must be made before the end of the period of 6 months beginning with the date on which that notification is given.

(4) No finding of fact on which a conviction is based may be challenged in an application under subsection (2).

(5) Proceedings in an application under subsection (2) may take place in private if the sheriff considers it appropriate in all the circumstances.

(6) In determining an application under subsection (2) the sheriff must—

(a) if satisfied that the details are not relevant to the purpose for which the certificate was required, allow the application,

(b) otherwise, refuse the application.

(7) The sheriff may allow the application in part where it relates to details in relation to two or more convictions.

(8) The decision of the sheriff on an application is final.

(9) Where the sheriff allows the application, the sheriff must order the Scottish Ministers—

(a) to issue a new certificate to the individual as if the individual had made the application for the certificate under section 113A(1), 113B(1), 114(1) or, as the case may be, 116(1) on the date on which the sheriff makes the order,

(b) to exclude from that certificate the details which the sheriff is satisfied are not relevant.

(10) Where the sheriff refuses the application—

(a) the Scottish Ministers must issue a new certificate to the individual as if the individual had made the application for the certificate under section 113A(1), 113B(1), 114(1) or, as the case may be, 116(1) on the date on which the sheriff makes the order,

(b) the individual may not make an application under subsection (2) in relation to the details of the conviction in connection with the new certificate (or any subsequent certificate issued in relation to the original certificate application).

(11) In subsection (10)(b), the “original certificate application” is the application for the certificate mentioned in subsection (1)(a).

(12) Sections 116ZA and 117 apply to a new certificate issued under subsection (9) or (10)(a) as if the certificate had been issued under section 113A(1), 113B(1), 114(1) or, as the case may be, 116(1)..


    1. In section 117 (disputes about accuracy of certificates)(10)—

      1. in subsection (4) for the words “thinks that the information concerned might be” substitute “reasonably believes the information concerned to be”; and

      2. after subsection (4) insert—

(5) This section does not apply to any information which could be the subject of an application under section 116ZB(2)..

    1. In section 126(1) (interpretation of Part V) after the definition of “prescribed” insert—

“protected conviction” is to be construed in accordance with section 126ZA..

    1. After section 126 insert—

126ZA Protected convictions

(1) For the purposes of this Part a conviction is a protected conviction if—

(a) it is a spent conviction, and

(b) either—

(i) it is not a conviction for an offence listed in schedule 8A or 8B, or

(ii) it is a conviction for an offence listed in schedule 8B and at least one of the conditions specified in subsection (2) is satisfied.

(2) The conditions are—

(a) the disposal in respect of the conviction was an admonition or an absolute discharge,

(b) the person was aged under 18 on the date of conviction and at least 7 years and 6 months have passed since the date of the conviction,

(c) the person was aged 18 or over on the date of conviction and at least 15 years have passed since the date of the conviction.

(3) In subsection (2)(a), the reference to an absolute discharge includes a reference to the discharge of the referral of a child’s case to a children’s hearing under—

(a) section 69(1)(b) and (12) of the Children (Scotland) Act 1995(11), or

(b) section 91(3)(b), 93(2)(b), 108(3)(b), or 119(3)(b) of the Children’s Hearings (Scotland) Act 2011(12).

126ZB Offences in schedules 8A and 8B

(1) The Scottish Ministers may by regulations modify schedule 8A or 8B.

(2) Regulations under subsection (1) are subject to the affirmative procedure..


    1. After Schedule 8 (the Police Information Technology Organisation)(13) insert—

SCHEDULE 8A

OFFENCES WHICH MUST ALWAYS BE DISCLOSED



Common law offences

1. Abduction.

2. Abortion.

3. Assault to severe injury.

4. Assault with intent to rape or ravish.

5. Assault with intent to commit the statutory offence of rape.

6. Bestiality.

7. Cruel and unnatural treatment of persons.

8. Culpable homicide.

9. Drugging.

10. Extortion.

11. Hamesucken.

12. Hijacking.

13. Piracy.

14. Plagium.

15. Reset of plagium.

16. Treason.

17. Uttering threats.
Statutory offences

Armed forces

18. An offence under section 42 of the Armed Forces Act 2006(14) (criminal conduct) where the corresponding offence under the law of England and Wales is, or corresponds to, an offence listed in this Schedule.

Aviation and maritime

19. An offence under the Piracy Act 1837(15).

20. An offence under any of the following provisions of the Aviation Security Act 1982(16)—

(a) section 1 (hijacking);

(b) section 2 (destroying, damaging or endangering safety of aircraft);

(c) section 3 (other acts endangering or likely to endanger safety of aircraft); and

(d) section 4 (offences in relation to certain dangerous articles).

21. An offence under section 9 of the Aviation and Maritime Security Act 1990(17) (hijacking of ships).

22. An offence under article 241 of the Air Navigation Order 2009(18) in respect of a contravention of article 137 of that Order (endangering safety of aircraft).

Children

23. An offence under section 12 of the Children and Young Persons (Scotland) Act 1937(19) (cruelty to persons under 16).

24. An offence under section 6 of the Child Abduction Act 1984(20) (offence in Scotland of parent, etc. taking or sending child out of United Kingdom).

Explosives

25. An offence under the Explosive Substances Act 1883(21).

Firearms and other weapons

26. An offence under any of the following provisions of the Firearms Act 1968(22)—

(a) section 16 (possession of firearm with intent to injure);

(b) section 16A(23) (possession of firearm with intent to cause fear or violence);

(c) section 17(24) (use of firearm to resist arrest); and

(d) section 18 (carrying firearm with criminal intent).

27. An offence under the Chemical Weapons Act 1996(25).

Forced marriage

28. An offence under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014 (offence of forced marriage: Scotland)(26).

Human trafficking and exploitation

29. An offence under section 22 of the Criminal Justice (Scotland) Act 2003(27) (traffic in prostitution etc.).

30. An offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004(28) (trafficking people for exploitation).

31. An offence under section 47 of the Criminal Justice and Licensing (Scotland) Act 2010(29) (slavery, servitude and forced or compulsory labour).

32. An offence under the Prohibition of Female Genital Mutilation (Scotland) Act 2005(30).

Medical professions etc.

33. An offence under section 10Z9 of the National Health Service (Scotland) Act 1978(31) (offences in relation to registration).

34. An offence under section 49 of the Medical Act 1983(32) (penalty for pretending to be registered).

Serious organised crime

35. An offence under any of the following provisions of the Criminal Justice and Licensing (Scotland) Act 2010(33)—

(a) section 28 (involvement in serious organised crime);

(b) section 30 (directing serious organised crime); and

(c) section 31 (failure to report serious organised crime).



Sexual offences

36. An offence under section 50(3) of the Customs and Excise Management Act 1979(34) (penalty for improper importation of goods) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876(35), but only where the prohibited goods include indecent photographs of persons.

37. A sexual offence within the meaning given by section 210A(10) of the Criminal Procedure (Scotland) Act 1995(36) other than an offence mentioned in paragraph (xxvii)(ZF) or (ZG) of that section (engaging while an older child in sexual conduct with or towards another older child).

38. An offence under section 113 of the Sexual Offences Act 2003(37) (breach of sexual offences prevention order or interim sexual offences prevention order, etc.).

39. An offence under section 7 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (offence: breach of RSHO or interim RSHO etc.)(38).

Stalking and harassment

40. An offence under section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995(39) (racially aggravated harassment).

41. An offence under any of the following provisions of the Criminal Justice and Licensing (Scotland) Act 2010(40)—

(a) section 38 (threatening or abusive behaviour); and

(b) section 39 (offence of stalking).

Terrorism

42. An offence under any of the following provisions of the Terrorism Act 2000(41)—

(a) section 11 (membership);

(b) section 15 (fund-raising);

(c) section 16 (use and possession);

(d) section 17 (funding arrangements);

(e) section 17A(2) or (4) (insurance payments made in response to terrorist demands)(42);

(f) section 18 (money laundering);

(g) section 54 (weapons training)(43);

(h) section 56 (directing terrorist organisation);

(i) section 57 (possession for terrorist purposes)(44);

(j) section 58 (collection of information)(45);

(k) section 58A (eliciting, publishing or communicating)(46); and

(l) section 61 (inciting terrorism overseas).

43. An offence under any of the following provisions of the Anti-terrorism, Crime and Security Act 2001(47)—

(a) section 47 (use etc. of nuclear weapons);

(b) section 50 (assisting or inducing certain weapons-related acts overseas);

(c) section 52 (powers of entry);

(d) section 54 (offences);

(e) section 67 (offences);

(f) section 79 (prohibition of disclosures relating to nuclear security)(48);

(g) section 80 (prohibition of disclosures of uranium enrichment technology)(49);

(h) section 113 (use of noxious substances or things to cause harm and intimidate)(50);

(i) section 114 (hoaxes involving noxious substances or things); and

(j) paragraph 7 of Schedule 3 (offences).

44. An offence under the Terrorism Act 2006(51).

45. An offence under any of the following provisions of the Counter-Terrorism Act 2008(52)—

(a) section 54 (offences relating to notification);

(b) paragraph 15 of Schedule 5 (breach of foreign travel restriction order and offence); and

(c) paragraph 30 of Schedule 7 (offences: failure to comply with requirement imposed by direction).



Violent offender orders

46. An offence under section 113(1) of the Criminal Justice and Immigration Act 2008(53) (breach of violent offender order or interim violent offender order).

Vulnerable persons

47. An offence under section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003(54) (ill-treatment and wilful neglect of mentally disordered person).

48. An offence under any of the following provisions of the Protection of Vulnerable Groups (Scotland) Act 2007(55)—

(a) section 34 (barred individuals not to do regulated work);

(b) section 35 (organisations not to use barred individuals for regulated work); and

(c) section 36 (personnel suppliers not to supply barred individuals for regulated work).




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