Smoking, Health and Social Care (Scotland) Act 2005
| Jurisdiction | Scotland |
| Citation | 2005 asp 13 |
Smoking, Health and Social Care (Scotland) Act 2005
2005 asp 13
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 30th June 2005 and received Royal Assent on 5th August 2005
An Act of the Scottish Parliament to prohibit smoking in certain wholly or substantially enclosed places; to enable the Scottish Ministers by order to vary the minimum age limit of those to whom tobacco may be sold; to make provision in relation to general dental services, general ophthalmic services, personal dental services, pharmaceutical care services and detection of vision problems in children; to make provision in relation to disqualification by the NHS Tribunal; to enable the Scottish Ministers to establish a scheme for the making of payments to certain persons infected with hepatitis C as a result of NHS treatment and to certain persons infected with the virus by transmission of it from a person infected with it as a result of such treatment; to amend the Regulation of Care (Scotland) Act 2001 as respects what constitutes an independent health care service, the implementation of certain decisions by the Scottish Commission for the Regulation of Care or the Scottish Social Services Council, the provision of information to the Council and the minimum frequency of inspection of care services by the Commission; to make provision providing further time for applications to be made for registration of child care agencies and housing support services under the Regulation of Care (Scotland) Act 2001 and provide authorisation for the payment of certain grants to such services while not registered under that Act; to amend the Adults with Incapacity (Scotland) Act 2000 as respects authorisation of medical treatment; to amend the Public Health (Scotland) Act 1897 to introduce a right of appeal in certain cases under that Act; to enable the Scottish Ministers to form, participate in and provide assistance to companies for the purpose of providing facilities or services for persons exercising functions under the National Health Service (Scotland) Act 1978 or of making money available to the health service in Scotland; to amend the rules as to membership of and other matters relating to the Scottish Hospital Endowments Research Trust; and for connected purposes.
Part 1
Smoking: prohibition and control
1 Offence of permitting others to smoke in no-smoking premises
(1) A person who, having the management or control of no-smoking premises, knowingly permits another to smoke there commits an offence.
(2) A person accused of an offence under this section is to be regarded as having knowingly permitted another to smoke in no-smoking premises if that person ought to have known that the other person was smoking there.
(3) It is a defence for an accused charged with an offence under this section to prove—
(a) that the accused (or any employee or agent of the accused) took all reasonable precautions and exercised all due diligence not to commit the offence; or
(b) that there were no lawful and reasonably practicable means by which the accused could prevent the other person from smoking in the no-smoking premises.
(4) A person guilty of an offence under this section is liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
2 Offence of smoking in no-smoking premises
(1) A person who smokes in no-smoking premises commits an offence.
(2) It is a defence for an accused charged with an offence under this section to prove that the accused did not know, and could not reasonably be expected to have known, that the place in which it is alleged that the accused was smoking was no-smoking premises.
(3) A person guilty of an offence under this section is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
3 Display of warning notices in and on no-smoking premises
(1) If notices are not conspicuously displayed—
(a) in, on or near no-smoking premises so as to be visible to and legible by persons in and persons approaching the premises; and
(b) stating—
(i) that the premises are no-smoking premises; and
(ii) that it is an offence to smoke there or knowingly to permit smoking there,
the person having the management or control of the premises commits an offence.
(2) It is a defence for an accused charged with an offence under this section to prove that the accused (or any employee or agent of the accused) took all reasonable precautions and exercised all due diligence not to commit the offence.
(3) The Scottish Ministers may, after consulting such persons as they consider appropriate, by regulations provide further as to the manner of display, form and content of the notices referred to in subsection (1) and that any such provision is to be treated, for the purposes of that subsection, as if incorporated in it.
(4) A person guilty of an offence under this section is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
4 Meaning of ‘smoke’ and ‘no-smoking premises’
(1) In this Part, "smoke" means smoke tobacco, any substance or mixture which includes it or any other substance or mixture; and a person is to be taken as smoking if the person is holding or otherwise in possession or control of lit tobacco, of any lit substance or mixture which includes tobacco or of any other lit substance or mixture which is in a form or in a receptacle in which it can be smoked.
(2) In this Part, "no-smoking premises" means such premises or such classes of premises, being premises of a kind mentioned in subsection (4), as are prescribed by regulations made by the Scottish Ministers after consulting such persons as they consider appropriate on a draft of the regulations.
(3) Regulations under subsection (2) may prescribe premises or parts of premises or classes of premises or parts of premises which are excluded from the definition of ‘no-smoking premises’.
(4) The kind of premises referred to in subsection (2) is premises which are wholly or substantially enclosed and—
(a) to which the public or a section of the public has access;
(b) which are being used wholly or mainly as a place of work;
(c) which are being used by and for the purposes of a club or other unincorporated association; or
(d) which are being used wholly or mainly for the provision of education or of health or care services.
(5) In subsection (4)(b), the reference to work includes work undertaken for no financial advantage.
(6) Regulations under subsection (2) may, for the purposes of that subsection, define or elaborate the meaning of any of the expressions—
(a) "premises";
(b) "wholly or substantially enclosed";
(c) "the public"; and
(d) "has access".
(7) Regulations under subsection (2) may define or elaborate the meaning of ‘premises’—
(a) by reference to the person or class of person who owns or occupies them;
(b) so as to include vehicles, vessels, trains and other means of transport (except aircraft), or such, or such classes, of them as are specified in the regulations.
(8) The Scottish Ministers may, by regulations, after consulting such persons as they consider appropriate on a draft of the regulations, modify subsection (4) so as—
(a) to add a kind of premises to; or
(b) remove a kind of premises (but not the kind referred to in paragraph (a) of that subsection) from,
those in that subsection.
(9) Regulations made by virtue of subsection (7)(b) may provide as to how the statement referred to in section 3(1)(b) is to be expressed in the case of each of the means of transport referred to in the regulations and that any such provision is to be treated, for the purposes of that section, as if incorporated in it.
5 Proceeding for offences under sections 1 to 3
(1) Summary proceedings in pursuance of section 1, 2 or 3 may be commenced at any time within the period of 6 months from the date on which evidence sufficient in the opinion of the Lord Advocate to justify the proceedings comes to the Lord Advocate's knowledge.
(2) Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995 (c. 46)
(date of commencement of summary proceedings) has effect for the purposes of subsection (1) as it has effect for...
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