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



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Short Scheme Record Disclosures
34. The information included on a short scheme record is being amended by article 4(6) of the 2015 Order. When a request for disclosure of a short scheme record is made, and if the PVG scheme member does not have vetting information in their scheme record, a short scheme record which states that no vetting information is included in the scheme member’s scheme record will be sent to the scheme member and the countersignatory.
35. PVG scheme members with vetting information on their current scheme record who request disclosure of a short scheme record will be deemed to have made a request for disclosure of a scheme record. Any PVG scheme members whose record contains vetting information that includes a spent conviction from the ‘Offences which are to be disclosed subject to rules’ list will be sent a copy of the scheme record disclosure. Only the individual’s copy of the scheme record will be issued in the first instance and they will be notified of their right to apply to the sheriff for removal of the spent conviction information from the scheme record. If no intimation of an intention to make such an application is received by Disclosure Scotland after 10 working days from the date of issue of the scheme record, the scheme record will be disclosed to the countersignatory.
36. The scheme record will not be issued to the countersignatory until any application to the sheriff is concluded.
37. Where request for a short scheme record disclosure is treated as a new scheme record disclosure to be issued (that is, any scheme record containing vetting information that requires to be disclosed), the fee for the disclosure of the scheme record will be waived and it will be charged at the same rate as the short scheme record disclosure (that is, £18).
Other Relevant Information
38. A small proportion of enhanced disclosures and PVG scheme records (around 0.5% or 1,100 certificates per annum) contain Other Relevant Information (“ORI”) provided to the Scottish Ministers by the police. Powers in the 1997 and 2007 Acts allow the chief officer of a relevant police force to include information that he or she thinks ‘might be relevant’ (in the case of the 2007 Act) and which ‘might be relevant’ and ‘ought to be included’ in the case of the 1997 Act. Consideration was given to whether section 113(b)(4) of the 1997 Act and section 49(1)(c) of the 2007 Act should be amended and changes are now made by the 2015 Order to both Acts so that the tests for provision of the ORI are that the chief officer ‘reasonably believes [information] to be relevant’ and ‘ought to be included in the certificate / disclosure of the scheme record.
Consultation
39. No formal consultation has been undertaken on the 2015 Order. Section 14(2) of the 2001 Act provides that Scottish Ministers must, upon making the Order, give notice of the publication of the remedial order to appropriate organisations and invite observations in writing within 60 days of the Order being made. Once the 60 day period has expired, the Scottish Government will lay a statement before Parliament summarising all the observations received and what, if any, modifications they consider appropriate to make to the order. It will be for the Scottish Parliament to approve the 2015 Order (or any second remedial order made its place) within 120 days of it being made or it will fall.
40. A list of the organisations to whom notification of the publication of the remedial order was given is attached at Annex B.
Regulatory Impact
41. A partial Business and Regulatory Impact Assessment has been prepared.
Equality Impact
42. An partial Equality Impact Assessment has been prepared.

Scottish Government



10 September 2015



1() 2001 asp 7.

2() 1997 c.50. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46).

3() 2007 asp 14.

4() The “Convention rights” has the meaning given by section 1 of the Human Rights Act 1998 (c.42). In the case of R (on the application of T and another) v Secretary of State for the Home Department and another [2014] UKSC 35 (judgment of 18th June 2014), the Supreme Court made a declaration of incompatibility under section 4 of the Human Rights Act 1998 that the provisions of sections 113A and 113B of the Police Act 1997 (as applicable in England and Wales) were incompatible with article 8 of the Convention because the requirements in relation to blanket disclosure of all spent convictions were not in accordance with the law. Similar provisions in sections 113A and 113B of the Police Act 1997 (as applicable in Scotland) may be incompatible with article 8 of the Convention. Section 49(1)(a) of the Protection of Vulnerable Groups (Scotland) Act 2007 (“the 2007 Act”) relies on section 113A(3)(a) of the Police Act 1997 and may also be incompatible with article 8 of the Convention.

5() Section 113A was inserted by section 163(2) of the Serious Organised Crime and Police Act 2005 (c.15) (“the 2005 Act”) and has been relevantly amended by sections 78(2) and 79(1) of, and paragraph 28 of schedule 4 to, the Protection of Vulnerable Groups (Scotland) Act 2007.

6() 1974 c.53.

7() Schedule 3 was inserted by section 109(4) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (“the 2010 Act”). Caution is an alternative to prosecution by virtue of section 8B(1)(f) of the Rehabilitation of Offenders Act 1974; section 8B was inserted by section 109(2) of the 2010 Act.

8() Section 113B was inserted by section 163(2) of the 2005 Act and has been relevantly amended by sections 79(1) and 80 of the 2007 Act and by section 108(2) of the 2010 Act.

9() Subsection (5A) was inserted by section 80 of the Protection of Vulnerable Groups (Scotland) Act 2007.

10() Subsections (3) and (4) of section 117 were inserted by paragraph 33 of schedule 4 of the 2007 Act.

11() 1995 c.36. Section 69 was repealed by paragraph 1 of Schedule 6 to the Children’s Hearings (Scotland) Act 2011 (asp 1).

12() 2011 asp 1.

13() Schedule 8 was repealed by Part 1(A) of Schedule 15 of the Police and Justice Act 2006.

14() 2006 c.52.

15() 1837 c.88. The Act was relevantly amended by the Statute Law Revision (No. 2) Act 1890 (c.51).

16() 1982 c.36.

17() 1990 c.31.

18() S.I. 2009/3015. Article 241 was amended by S.I. 2012/1751 and S.I. 2014/3302.

19() 1937 c.37. Section 12 was amended by the Criminal Procedure (Scotland) Act 1975 (c.21), section 289B; the Children Act 1975 (c.72), Schedule 4; the Criminal Justice Act 1988 (c.33), section 45; the Children (Scotland) Act 1995 (c.36) (“the 1995 Act”), Schedule 4, paragraph 7; the Criminal Justice (Scotland) Act 2003 (asp 7), section 51(5) and S.I. 1951/1974.

20() 1984 c.37. Section 6 was amended by the Law Reform (Parent and Child) (Scotland) Act 1986 (c.9), sections 9 and 10 and Schedule 1, paragraph 20; the Age of Legal Capacity (Scotland) Act 1991 (c.50), Schedule 2, paragraph 1; and the 1995 Act, Schedule 4, paragraph 34.

21() 1883 c.3. The Act was relevantly amended as follows. Section 2 was substituted by the Criminal Jurisdiction Act 1975 (c.59) (“the 1975 Act”), section 7 and extended by the Internationally Protected Persons Act 1978 (c.17), section 1; the Aviation Security Act 1982 (c.36), section 6(1); the United Nations Personnel Act 1997 (c.13), section 1; and the Terrorism Act 2000 (c.11) (“the 2000 Act”), section 62. Section 3 was substituted by the 1975 Act, section 7, extended by the 2000 Act, section 62 and amended by the Criminal Law Act 1977 (c.45), Schedule 12 and the Terrorism Act 2006 (c.11), section 17. Section 4 was amended by the Criminal Procedure (Scotland) Act 1975 (c.21), section 221 and by the Criminal Justice and Courts Act 2015 (c.2), section 1. Section 5 was extended by the 2000 Act (c.11), section 62.

22() 1968 c.27. The Act was extended by the Firearms Act 1982 (c.31), section 1 and S.I. 1972/971, and modified by the Firearms (Amendment) Act 1988 (c.45), sections 8 and 25.

23() Section 16A was inserted by the Firearms (Amendment) Act 1994 (c.31), section 1.

24() Section 17 was amended by the Theft Act 1968 (c.60), Schedule 3.

25() 1996 c.6. The Act was relevantly amended as follows. Section 2 was extended by the 2000 Act, section 62 and section 32 was extended by the Anti-terrorism, Crime and Security Act 2001 (c.24), section 17.

26() 2014 c.12.

27() 2003 asp 7. Section 22 was amended by the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (“the 2010 Act”), section 46.

28() 2004 c.19. Section 4 was amended by the 2010 Act, section 46.

29() 2010 asp 13.

30() 2005 asp 8.

31() 1978 c.29. Section 10Z9 was inserted by the Public Services Reform (Scotland) Act 2010 (asp 8), section 108.

32() 1983 c.54. Section 49 was amended by the Statute Law (Repeals) Act 1993 (c.50), Schedule 1 and by S.I. 2007/3101.

33() 2010 asp 13.

34() 1979 c.2. Section 50 was amended by the Criminal Procedure (Scotland) Act 1975 (c.21), section 289F and 289G; the Police and Criminal Evidence Act 1984 (c.60), section 114(1); the Finance Act 1988 (c.33), section 12; the Criminal Justice Act 2003 (c.44), section 293; the Criminal Justice and Immigration Act 2008 (c.4), Schedule 17; the Anti-social Behaviour, Crime and Policing Act 2014 (c.12), section 111; and S.I. 1996/2686.

35() 1876 c.36. Section 42 was amended by the Customs and Excise Act 1952 (c.44), Schedule 12; the Statute Law (Repeals) Act 1993 (c.50), Schedule 1; and the Statute Law (Repeals) Act 2008 (c.12), Schedule 2.

36() 1995 c.46. Section 210A was inserted by the Crime and Disorder Act 1998 (c.37), section 86 and was amended by the Sexual Offences (Amendment) Act 2000 (c.44), section 6(2); the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), section 312; the Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5), section 21; the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), schedule 1; the Sexual Offences (Scotland) Act 2009 (asp 9), schedules 5 and 6; the 2010 Act, section 23; and by S.S.I. 2003/48 and S.S.I. 2010/421.

37() 2003 c.42. Section 113 was amended by the Anti-social Behaviour, Crime and Policing Act 2014 (c.12), Schedule 11 and by S.S.I. 2011/25.

38() 2005 asp 9. Section 7 was amended by the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), section 103 and the Anti-social Behaviour, Crime and Policing Act 2014 (c.12), Schedule 11, paragraph 78.

39() 1995 c.39. Section 50A was inserted by the Crime and Disorder Act 1998 (c.37), section 33.

40() 2010 asp 13.

41() 2000 c.11.

42() Section 17A was inserted by the Counter-Terrorism and Security Act 2015 (c.6), section 42.

43() Section 54 was amended by the Anti-terrorism, Crime and Security Act 2001 (c.24), section 120; the Counter-Terrorism Act 2008 (c.28), Schedule 9; and the Criminal Justice and Courts Act 2015 (c.2), section 1.

44() Section 57 was amended by the Terrorism Act 2006 (c.11), section 13.

45() Section 58 was amended by the Counter-Terrorism Act 2008 (c.28) (“the 2008 Act”), Schedule 9.

46() Section 58A was inserted by the 2008 Act, section 76.

47() 2001 c.24.

48() Section 79 was amended by the Energy Act 2004 (c.20), Schedule 14.

49() Section 80 was amended by the Energy Act 2013 (c.32), Schedule 12.

50() Section 113 was amended by the Terrorism Act 2006 (c.11), section 34.

51() 2006 c.11. The Act was relevantly amended as follows. Section 6 was amended by the Criminal Justice and Courts Act 2015 (c.2), section 1 and section 17 was amended by the Serious Crime Act 2015 (c.9), section 81 and paragraph 74 of Schedule 4.

52() 2008 c.28.

53() 2008 c.4.

54() 2003 asp 13.

55() 2007 asp 14.

56() 2007 asp 10.

57() 2005 c.15.

58() 2010 asp 13.

59() 2007 asp 10.

60() 2000 asp 4.

61() S.I. 1974/2211, as amended by S.I. 1977/361, S.I. 1984/1182, S.I. 1990/2371, S.I. 2011/2883 and S.I. 2014/3158.

62() 1981 c.69.

63() Section 1 was amended by schedule 5 to the Criminal Justice (Scotland) Act 2003 (asp 7), paragraph 2 of schedule 6 to the Nature Conservation (Scotland) Act 2004 (asp 6) (“the 2004 Act”), section 3(2) and (3) of the Wildlife and Natural Environment (Scotland) Act 2011 (asp 6) (“the 2011 Act”) and S.I. 2011/1043.

64() Section 5 was amended by paragraph 6 of schedule 6 to the 2004 Act.

65() Section 9 was amended by paragraph 8 of schedule 6 to the 2004 Act and section 7(2) of the 2011 Act.

66() Section 11 was amended by paragraph 10 of schedule 6 to the 2004 Act and section 13(2) of the 2011 Act.

67() Sections 11A, 11B and 11C were inserted by section 13(3) of the 2011 Act. Section 11A was amended by S.S.I. 2013/119.

68() Section 14ZC was inserted by section 14(3) of the 2011 Act.

69() Section 15A was inserted by paragraph 14 of schedule 6 to the 2004 Act and was amended by section 21(4) of the 2011 Act and by S.I. 2013/1506.

70() 1991 c.65. The Act was amended by paragraph 81 of Schedule 4 to the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c.40), sections 1 to 3 of the Dangerous Dogs (Amendment) Act 1997 (c.53), section 10 of and paragraph 2 of schedule 1 to the Control of Dogs (Scotland) Act 2010 (asp 9) and sections 106(2)(a)(ii) and 107 of the Anti-social Behaviour, Crime and Policing Act 2014 (c.12).

71() 1992 c.51. The Act was amended by paragraph 53 of Schedule 2 to the Planning (Consequential Provisions) (Scotland) Act 1997( c.11), paragraph 5 of schedule 1 to the Wild Mammals (Scotland) Act 2002 (asp 6), paragraph 26 of schedule 6 to 2004 Act and sections 33 and 41(4) of the 2011 Act.

72() S.I 1994/2716.

73() Regulation 39 was amended by S.S.I. 2008/17 and S.S.I. 2008/425.

74() Regulation 41 was amended by S.S.I. 2004/475 and S.S.I. 2007/80.

75() S.I. 1995/731 was amended by S.I. 1999/400 and S.I. 1999/1820 and S.S.I. 2000/62, S.S.I. 2001/145, S.S.I. 2002/238, S.S.I. 2004/13, S.S.I. 2006/536, S.S.I. 2007/150, S.S.I. 2012/321 and S.S.I. 2015/13.

76() 1996 c.3. The Act was amended by paragraph 1 of schedule 6 to the Protection of Wild Mammals (Scotland) Act 2002 (asp 6) and S.S.I. 2016/536.

77() 2002 asp 6. The Act was amended by Part 2 of schedule 1 to the 2011 Act and by S.S.I. 2006/536.

78() 2006 asp 11. The Act was amended by paragraph 34 of Part 1 of schedule 7 to the Police and Fire Reform (Scotland) Act 2012 (asp 8) (“the 2012 Act”).

79() 2006 c.52.

80() 1996 c.16. Section 89 was amended by section 104(1) of the Police Reform Act 2002 (c.30); Part 2 of Schedule 17 to the Serious Organised Crime and Police Act 2005 (c.15); S.I. 2012/1809; and S.S.I. 2013/602.

81() 2005 c.11.

82() 2005 asp 2. The Act was amended by section 38 of, and paragraph 23 of schedule 3 to the Fire (Scotland) Act 2005 (asp 5), section 44(4) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), paragraph 25 of Part 1 and paragraph 67 of Part 2 of schedule 7 to the 2012 Act, and by S.S.I. 2008/37 and S.S.I. 2013/211.

83() 2005 asp 5.

84() 2012 asp 8.

85() 1982 c.36.

86() Section 20B was inserted by section 86(1) of the Anti-terrorism, Crime and Security Act 2001 (c.24) (“the 2001 Act”) and amended by paragraph 15 of Schedule 11 to the Civil Aviation Act 2012 (c.19).

87() Section 21FA was inserted by section 87 of the 2001 Act.

88() 1977 c.45. Section 51 was amended by section 26(4) of the Criminal Justice Act 1991(c.53).

89() 2010 c.23.

90() 2001 asp 8.

91() Section 45 was amended by S.I. 2007/3101.

92() 2010 asp 8.

93() S.S.I. 2011/215.

94() S.S.I. 2011/210.

95() 2005 asp 10, to which there are no relevant amendments.

96() 1991 c.48. The Act was amended by paragraph 1 of schedule 7 and schedule 8 to the Child Maintenance and Other Payments Act 2008 (c.6) and by S.I. 2005/1790, S.I. 2008/2833 and S.I. 2012/2007.

97() 1987 c.32. Section 1 was amended by section 35(2) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13).

98() 2011 asp 13.

99() 1971 c.38.

100() Section 3 was amended by paragraph 4 of schedule 17 to the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (“the 2010 Act”).

101( ) Section 4 was amended by paragraph 5 of schedule 17 to the 2010 Act.

102() Section 4A was inserted by section 1(1) of the Drugs Act 2005 (c.17).

103() Section 12 was amended by paragraph 8 of Schedule 4 to the Customs and Excise Management Act 1979 (c.2).

104() Section 13 was amended by the Police Reform and Social Responsibility Act 2011 (c.13), Schedule 17, paragraph 12 and by the Scotland Act 2012 (c.11), section 19.

105() Section 19 was amended by the Serious Crime Act 2007 (c.27), Schedule 6, paragraph 53.

106() 1979 c.2. Sections 50 and 170 were amended by the Forgery and Counterfeiting Act 1981 (c.45), section 23; the Police and Criminal Evidence Act 1984 (c.60), section 114(1); the Finance Act 1988 (c.33), section 12; the Criminal Justice Act 2003 (c.44), section 293; the Criminal Justice and Immigration Act 2008 (c.4), Schedule 17; the Anti-social Behaviour, Crime and Policing Act 2014 (c.12), section 111 and by S.I. 1996/2686 and S.I. 2015/664. Section 50 was also amended by the Criminal Procedure (Scotland) Act 1975 (c.21), section 289F and 289G and section 170 was also amended by the Finance (No. 2) Act 1992 (c.48), Schedule 2.

107() 1971 c.38. Section 3 was amended by the Police Reform and Social Responsibility Act 2011 (c.13), Schedule 17, paragraph 4.

108() 1990 c.5. The Act was relevantly amended by section 23 of the Criminal Justice Act 1993 (c.36), section 1 of the Criminal Justice (International Co-operation) (Amendment) Act 1998 (c.27), Part 2 of Schedule 7 to the Criminal Justice (Scotland) Act 1995 (c.20), Schedule 5 to the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c.40), paragraph 21 of Schedule 11 to the Proceeds of Crime Act 2002 (c.29), paragraph 3 of Schedule 28 to the Criminal Justice Act 2003 (c.44) and paragraph 22 of Schedule 17 to the Police Reform and Social Responsibility Act 2011 (c.13).

109() 2003 asp 13. Section 316 was amended by section 71(3) of the Adult Support and Protection (Scotland) Act 2007 (asp 10) and by S.S.I. 2005/465.

110() 2012 asp 8.

111() 2000 c.8. The Act was relevantly amended by the Pension Schemes Act 2015 (c.8), Schedule 3, paragraph 2 and the Financial Services Act 2012 (c.21), sections 11(2), 13, 25(1), 26 and 95 and Schedules 8, 9 and 12 and Part 1 of Schedule 18 and S.I. 2000/534, S.I. 2001/1090, S.I. 2005/1433, S.I. 2010/22, S.I. 2012/2554 and S.I. 2013/1773.

112() 2012 c.21. The Act was amended by the Financial Services (Banking Reform) Act 2013 (c.33), sections 105 and 106, Schedule 9, paragraph 4(3)(e) and Schedule 10, paragraph 9 and S.I. 2014/3329.

113(


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