The Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial (No. 2) Order 2015
| Jurisdiction | Scotland |
| Citation | SSI 2015/423 |
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 9th September 2015, being the date on which the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015 was made, not taking into account periods of dissolution or recess for more than 4 days.
2015No. 423
POLICE
CHILDREN AND YOUNG PERSONS
PROTECTION OF VULNERABLE ADULTS
10thDecember2015
8thFebruary2016
The Scottish Ministers make the following remedial Order in exercise of the powers conferred by section 12(1) and (3) and 14(5)(a) 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(2) of the 2001 Act the Scottish Ministers gave such public notice as they considered appropriate of the contents of the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015 and invited persons wishing to make observations on the Order to do so.
In accordance with section 14(4) of the 2001 Act as soon as practicable after the end of the period mentioned in section 14(2)(a) of the 2001 Act, they laid before the Scottish Parliament a statement summarising all the observations to which they had had regard under section 14(3) of the 2001 Act and specifying the modifications which they consider it appropriate to make to the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015.
Citation and commencement
1.-(1) This Order may be cited as the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial (No. 2) Order 2015.
(2) This Order comes into force on 8th February 2016.
Interpretation2
2. 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 8th February 2016.
Amendment of the 1997 Act
Amendment of the 1997 Act
3.-(1) The 1997 Act is amended as follows.
(2) In section 113A (criminal record certificates)( 5)-
(a) 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.";
(b) subsection (4) is repealed; and
(c) in subsection (6)-
(i) 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,";
(ii) 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".
(3) In section 113B (enhanced criminal record certificates)( 8)-
(a) 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.";
(b) in subsection (4)-
(i) the words ", in the chief officer's opinion" are repealed;
(ii) 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.";
(c) subsection (5) is repealed;
(d) in subsection (5A)( 9) the words "or (5)" are repealed; and
(e) subsection (6) is repealed.
(4) After section 116 (enhanced criminal record certificates: judicial appointments and Crown employment) insert-
"116ZA Copies of criminal record certificate or enhanced criminal record certificate
(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
(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 3 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...
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