The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015
| Jurisdiction | Scotland |
| Citation | SSI 2015/329 |
| Year | 2015 |
2015No. 329
REHABILITATION OF OFFENDERS
The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015
9thSeptember2015
10thSeptember2015
The Scottish Ministers make the following Order in exercise of the powers conferred by sections 4(4), 7(4) and 10(1) of the Rehabilitation of Offenders Act 1974( 1) and all other powers enabling them to do so.
In accordance with section 10(2)( 2) of that Act, a draft of this Order has been laid before and approved by resolution of the Scottish Parliament.
Citation, commencement and interpretation
1.-(1) This Order may be cited as the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015 and comes into force on 10th September 2015.
(2) In this Order, "the 2013 Order" means the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013( 3).
Interpretation
2.-(1) In article 2(1) of the 2013 Order (interpretation)-
(a) in the appropriate places insert-
""the 1997 Act" means the Police Act 1997( 4);";
""higher level disclosure" means-
(a) a criminal record certificate issued under section 113A(1)( 5) or section 114(1)( 6) of the 1997 Act;
(b) an enhanced criminal record certificate issued under section 113B(1)( 7) or section 116(1) of that Act; or
(c) a scheme record disclosed under section 52(3) or (7) of the 2007 Act;"
""protected conviction" means a spent conviction of a kind mentioned in article 2A(1);"; and
""sent" means-
(a) in relation to a criminal record certificate or an enhanced criminal record certificate issued under section 113A(1) or 113B(1) of the 1997 Act, sent in accordance with section 116ZA(2) or (4) of that Act to the registered person who countersigned the application for that certificate under section 113A(2) or, as the case may be, 113B(2)(a) of that Act;
(b) in relation to a criminal record certificate or enhanced criminal record certificate issued under section 114(1) or 116(1)( 8) of the 1997 Act, sent in accordance with section 116ZA(2) or (4) of that Act to the person who made the statement under section 114(2) or, as the case may be, 116(2) of that Act; and
(c) in relation to a scheme record disclosed under section 52(3) or (7) of the 2007 Act, disclosed to the registered person who made the declaration mentioned in condition C in section 55 of that Act;"; and
(b) for the definition of "lay representative" substitute-
""lay representative" means a person who-
(a) is representing a party in civil proceedings in the sheriff court or proceedings in the Court of Session; and
(b) is not-
(i) a solicitor or an advocate; or
(ii) someone having the right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990( 9)".
(2) After article 2 of the 2013 Order insert-
"Protected convictions
2A.
-(1) For the purposes of this Order, a person's 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 A1 or B1; or
(ii) it is a conviction for an offence listed in Schedule B1 and at least one of the conditions specified in paragraph (2) is satisfied.
(2) The conditions are-
(a) the sentence imposed 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 conviction; and
(c) the person was aged 18 or over on the date of conviction and at least 15 years have passed since the date of 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( 10); or
(b) section 91(3)(b), 93(2)(b), 108(3)(b) or 119(3)(b) of the Children's Hearings (Scotland) Act 2011( 11).".
Amendment of article 3
3.-(1) Article 3 of the 2013 Order (exclusion of section 4(1) of the Act) is amended as follows.
(2) The existing text becomes paragraph (1).
(3) After that paragraph insert-
"(2) But the application of section 4(1) of the Act is not excluded in relation to any protected conviction, or any circumstances ancillary to such a conviction, in relation to-
(a) proceedings specified in paragraphs 1, 2, 6, 8, 9, 13, 15, 16, 18, 20, 25 or 28 of Schedule 1; or
(b) proceedings specified in paragraph (1)(b).".
Amendment of article 4
4.-(1) Article 4 of the 2013 Order (exclusion of section 4(2)(a) and (b) of the Act) is amended as follows.
(2) The existing text becomes paragraph (1).
(3) After that paragraph insert-
"(2) But the application of section 4(2)(a) and (b) of the Act is not excluded in relation to any question relating to a spent conviction, or any circumstances ancillary to that conviction, if that conviction is-
(a) a protected conviction; or
(b) a conviction for an offence listed in Schedule B1 which-
(i) is not a protected conviction; and
(ii) is not included in a higher level disclosure sent in connection with the purpose for which the question is put.
(3) Paragraph (2) does not apply to-
(a) any question put to assess the suitability of a person to hold-
(i) any certificate or permit mentioned in paragraph 3(3)(a) of Schedule 3;
(ii) a certificate mentioned in paragraph 3(3)(c) of that Schedule;
(iii) a licence mentioned in paragraph 3(3)(ca)( 12) of that Schedule;
(b) any question mentioned in paragraph 6(1) of Schedule 3; or
(c) any question put to assess the suitability of a person to hold an occupation mentioned in paragraph 1 or 4 of Part 3 of Schedule 4.
(4) If a spent conviction for an offence listed in Schedule B1 is included in a higher level disclosure, the application of section 4(2)(a) and (b) of the Act is not excluded in relation to any failure to disclose that conviction, or any circumstances ancillary to that conviction, which occurred before that higher level disclosure was sent.".
Amendment of article 5
5.-(1) Article 5 of the 2013 Order (exceptions from section 4(3) of the Act) is amended as follows.
(2) The existing text becomes paragraph (1).
(3) After that paragraph insert-
"(2) But the exceptions in paragraph (1)(a) and (c) do not apply in relation to a spent conviction, or any circumstances ancillary to that conviction, if that conviction is-
(a) a protected conviction; or
(b) a conviction for an offence listed in Schedule B1 which-
(i) is not a protected conviction; and
(ii) is not included in a higher level disclosure sent in connection with the profession, office, employment, occupation, decision or proposed decision to which the exception would otherwise apply.
(3) Paragraph (2) does not apply in relation to an occupation listed in paragraph 1 or 4 of Part 3 of Schedule 4.
(4) If a spent conviction for an offence listed in Schedule B1 is included in a higher level disclosure, the exceptions in paragraph (1)(a) and (c) do not apply to any failure to disclose that conviction, or any circumstances ancillary to that conviction, which occurred before that higher level disclosure was sent.".
Lists of convictions
6. Before Schedule 1 to the 2013 Order (proceedings) insert-
"SCHEDULE A1
Article 2A
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( 13) (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( 14).
20. An offence under any of the following provisions of the Aviation Security Act 1982( 15)-
(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( 16) (hijacking of ships).
22. An offence under article 241 of the Air Navigation Order 2009( 17) 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( 18) (cruelty to persons under 16).
24. An offence under section 6 of the Child Abduction Act 1984( 19) (offence in Scotland of parent, etc. taking or sending child out of United Kingdom).
Explosives
25. An offence under the Explosive Substances Act 1883( 20).
Firearms and other weapons
26. An offence under any of the following provisions of the Firearms Act 1968( 21)-
(a) section 16 (possession of firearm with intent to injure);
(b) section 16A( 22) (possession of firearm with intent to cause fear or violence);
(c) section 17( 23) (use of firearm to resist arrest); and
(d) section 18 (carrying firearm with criminal intent).
27. An offence under the Chemical Weapons Act 1996( 24).
Forced marriage
28. An offence under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014 (offence of forced marriage: Scotland)( 25).
Human trafficking and exploitation
29. An offence under section 22 of the Criminal Justice (Scotland) Act 2003( 26) (traffic in prostitution etc.).
30. An offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004( 27) (trafficking people for exploitation).
31. An offence under section 47 of the Criminal Justice and...
To continue reading
Request your trial