The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015
S.S.I. 2015/329 · Made 9 September 2015
Rehabilitation Of Offenders
Made 9th September 2015
Coming into force 10th September 2015
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 1974f1 and all other powers enabling them to do so.
In accordance with section 10(2)f2 of that Act, a draft of this Order has been laid before and approved by resolution of the Scottish Parliament.
Annotations to the whole text
Footnotes
- f1
-
1974 c.53. 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) and the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2003 (S.I. 2003/415).
- f2
-
Section 10(2) was modified by paragraph 5 of schedule 3 to the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10).
Contents
- 1Citation, commencement and interpretation
- 2Interpretation
- 3Amendment of article 3
- 4Amendment of article 4
- 5Amendment of article 5
- 6Lists of convictions
- Signature
- Explanatory note
1Citation, commencement and interpretation
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.
In this Order, “the 2013 Order” means the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013f1.
2Interpretation
In article 2(1) of the 2013 Order (interpretation)—
in the appropriate places insert—
““the 1997 Act” means the Police Act 1997f1;”;
““higher level disclosure” means—
- (a)
- (b)
an enhanced criminal record certificate issued under section 113B(1)f4 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)f5 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
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 1990f6”.
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 1995f7; or
(b)section 91(3)(b), 93(2)(b), 108(3)(b) or 119(3)(b) of the Children’s Hearings (Scotland) Act 2011f8.”.
3Amendment of article 3
Article 3 of the 2013 Order (exclusion of section 4(1) of the Act) is amended as follows.
The existing text becomes paragraph (1).
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).”.
4Amendment of article 4
Article 4 of the 2013 Order (exclusion of section 4(2)(a) and (b) of the Act) is amended as follows.
The existing text becomes paragraph (1).
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)f1 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.”.
5Amendment of article 5
Article 5 of the 2013 Order (exceptions from section 4(3) of the Act) is amended as follows.
The existing text becomes paragraph (1).
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.”.
6Lists of convictions
Before Schedule 1 to the 2013 Order (proceedings) insert—
“SCHEDULE A1
OFFENCES WHICH MUST ALWAYS BE DISCLOSED
Article 2A
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 2006f1 (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 1837f2.
20.An offence under any of the following provisions of the Aviation Security Act 1982f3—
(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 1990f4 (hijacking of ships).
22.An offence under article 241 of the Air Navigation Order 2009f5 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 1937f6 (cruelty to persons under 16).
24.An offence under section 6 of the Child Abduction Act 1984f7 (offence in Scotland of parent, etc. taking or sending child out of United Kingdom).
Explosives
25.An offence under the Explosive Substances Act 1883f8.
Firearms and other weapons
26.An offence under any of the following provisions of the Firearms Act 1968f9—
(a)section 16 (possession of firearm with intent to injure);
(b)section 16Af10 (possession of firearm with intent to cause fear or violence);
(c)section 17f11 (use of firearm to resist arrest); and
(d)section 18 (carrying firearm with criminal intent).
27.An offence under the Chemical Weapons Act 1996f12.
Forced marriage
28.An offence under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014 (offence of forced marriage: Scotland)f13.
Human trafficking and exploitation
29.An offence under section 22 of the Criminal Justice (Scotland) Act 2003f14 (traffic in prostitution etc.).
30.An offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004f15 (trafficking people for exploitation).
31.An offence under section 47 of the Criminal Justice and Licensing (Scotland) Act 2010f16 (slavery, servitude and forced or compulsory labour).
32.An offence under the Prohibition of Female Genital Mutilation (Scotland) Act 2005f17.
Medical professions etc.
33.An offence under section 10Z9 of the National Health Service (Scotland) Act 1978f18 (offences in relation to registration).
34.An offence under section 49 of the Medical Act 1983f19 (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 2010f20—
(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 1979f21 (penalty for improper importation of goods) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876f22, 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 1995f23 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 2003f24 (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.)f25.
Stalking and harassment
40.An offence under section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995f26 (racially aggravated harassment).
41.An offence under any of the following provisions of the Criminal Justice and Licensing (Scotland) Act 2010f27—
(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 2000f28—
(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)f29;
(f)section 18 (money laundering);
(g)section 54 (weapons training)f30;
(h)section 56 (directing terrorist organisation);
(i)section 57 (possession for terrorist purposes)f31;
(j)section 58 (collection of information)f32;
(k)section 58A (eliciting, publishing or communicating)f33; and
(l)section 61 (inciting terrorism overseas).
43.An offence under any of the following provisions of the Anti-terrorism, Crime and Security Act 2001f34—
(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)f35;
(g)section 80 (prohibition of disclosures of uranium enrichment technology)f36;
(h)section 113 (use of noxious substances or things to cause harm and intimidate)f37;
(i)section 114 (hoaxes involving noxious substances or things); and
(j)paragraph 7 of Schedule 3 (offences).
44.An offence under the Terrorism Act 2006f38.
45.An offence under any of the following provisions of the Counter-Terrorism Act 2008f39—
(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 2008f40 (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 2003f41 (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 2007f42—
(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).
49.Any offence where the conduct in respect of which the person was convicted also constituted a breach of a banning order granted under section 19 of the Adult Support and Protection (Scotland) Act 2007f43 (banning orders).
Witness protection
50.An offence under any of the following provisions of the Serious Organised Crime and Police Act 2005f44—
(a)section 86 (offence of disclosing information about protection arrangements); and
(b)section 88 (offences of disclosing information relating to persons assuming new identity).
Statutory aggravations
51.An offence to which section 29(1) of the Criminal Justice and Licensing (Scotland) Act 2010f45 applies (offences aggravated by connection with serious organised crime).
Other
Inchoate offences
52.An offence committed by aiding, abetting, counselling, procuring or inciting the commission of any offence listed in paragraphs 1 to 51 of this Schedule.
53.An offence committed by attempting or conspiring to commit any offence listed in paragraphs 1 to 51 of this Schedule.
Superseded offences
54.An offence superseded (whether directly or indirectly) by any offence listed in paragraphs 1 to 53 of this Schedule (and any qualification in relation to a listed offence applies to the superseded offence as it applies to the listed offence).
Combined offences
55.An offence which was charged, and the conviction for which was received, in conjunction with any offence listed in paragraphs 1 to 54 of this Schedule.
Corresponding offences elsewhere in the UK or abroad
56.An offence under the law of England and Wales or Northern Ireland, or any country or territory outside the United Kingdom, which corresponds to any offence listed in paragraphs 1 to 55 of this Schedule.
SCHEDULE B1
OFFENCES WHICH ARE TO BE DISCLOSED SUBJECT TO RULES
Articles 2A, 4 and 5
Common law offences
1.Assault excluding any assault of a kind listed in Schedule A1.
2.Attempting to defeat the ends of justice.
3.Attempting to pervert the course of justice.
4.Breach of the peace.
5.Clandestinely taking possession.
6.Culpable and reckless conduct.
7.Culpable and reckless endangering of the public.
8.Culpable and reckless fireraising.
9.Embezzlement.
10.False accusation of a crime.
11.Fraud.
12.Housebreaking with intent to steal.
13.Mobbing and rioting.
14.Opening a lockfast place with intent to steal.
15.Perjury.
16.Prevarication on oath.
17.Prison breaking.
18.Public indecency.
19.Reset (excluding reset of plagium).
20.Subornation of perjury.
21.Theft (excluding plagium).
22.Uttering.
23.Wilful fireraising.
Statutory offences
Adult support and protection
24.An offence under section 49 of the Adult Support and Protection (Scotland) Act 2007f46 (obstruction).
Adults with incapacity
25.An offence under section 83 of the Adults with Incapacity (Scotland) Act 2000f47 (offence of ill-treatment and wilful neglect).
Animals
26.An offence under the Rabies (Importation of Dogs, Cats and Other Mammals) Order 1974f48.
27.An offence under any of the following provisions of the Wildlife and Countryside Act 1981f49—
(a)section 1f50 (protection of wild birds, their nests and eggs and prevention of poaching);
(b)section 5f51 (prohibition of certain methods of killing or taking wild birds);
(c)section 9f52 (protection of other wild animals and prevention of poaching);
(d)section 11f53 (prohibition of certain methods of killing or taking wild animals);
(e)section 11A, 11B and 11Cf54 (offences in relation to snares);
(f)section 14ZCf55 (prohibition on keeping etc. of invasive animals or plants);
(g)section 15Af56 (possession of pesticides); and
(h)section 18 (attempts to commit offences etc.), but only in relation to an offence listed in sub-paragraphs (a) to (g) of this paragraph.
28.An offence under the Dangerous Dogs Act 1991f57.
29.An offence under the Protection of Badgers Act 1992f58.
30.31.An offence under the Welfare of Animals (Slaughter or Killing) Regulations 1995f62.
32.An offence under the Wild Mammals Protection Act 1996f63.
33.An offence under the Protection of Wild Mammals (Scotland) Act 2002f64.
34.An offence under the Animal Health and Welfare (Scotland) Act 2006f65.
Armed forces
35.An offence under section 42 of the Armed Forces Act 2006f66 (criminal conduct) where the corresponding offence under the law of England and Wales is, or corresponds to, an offence listed in this Schedule.
Assaulting or hindering public officials
36.An offence under section 89 of the Police Act 1996f67 (assaults on constables).
37.An offence under section 32 of the Commissioners for Revenue and Customs Act 2005f68 (assault).
38.An offence under the Emergency Workers (Scotland) Act 2005f69.
39.An offence under section 85 of the Fire (Scotland) Act 2005f70 (false alarms).
40.An offence under section 90 of the Police and Fire Reform (Scotland) Act 2012f71 (assaulting or impeding police).
Aviation
41.Bomb hoaxes
42.An offence under section 51 of the Criminal Law Act 1977f75 (bomb hoaxes).
Bribery
43.An offence under the Bribery Act 2010f76.
Care services
44.45.An offence under any of the following provisions of the Public Services Reform (Scotland) Act 2010f79—
(a)section 80(1) (offences in relation to registration under Chapter 3);
(b)section 81 (false statements in application under Chapter 3); and
(c)section 90 (offences under Chapter 4).
46.An offence under article 27 of the Public Services Reform (General Teaching Council for Scotland) Order 2011f80 (offences).
47.An offence under regulation 19 of the Social Care and Social Work Improvement (Scotland) (Requirements for Care Services) Regulations 2011f81 (offences).
Charities
48.An offence under the Charities and Trustee Investment (Scotland) Act 2005f82.
Child Support
49.An offence under section 50 of the Child Support Act 1991f83 (unauthorised disclosure of information).
Crossbows
50.An offence under section 1 of the Crossbows Act 1987f84 (sale and letting on hire).
Domestic abuse
51.An offence under section 2 of the Domestic Abuse (Scotland) Act 2011f85 (breach of domestic abuse interdict with power of arrest).
Drugs
52.An offence under any of the following provisions of the Misuse of Drugs Act 1971f86—
(a)section 3f87 (restriction of importation and exportation of controlled drugs);
(b)section 4f88 (restriction of production and supply of controlled drugs);
(c)section 4Af89 (aggravation of offence of supply of controlled drug);
(d)section 5(3) (restriction of possession of controlled drugs);
(e)section 6 (restriction of cultivation of cannabis plant);
(f)section 8(a) and (b) (occupiers etc. of premises to be to be punishable for certain activities taking place there);
(g)section 12f90 (directions prohibiting prescribing, supply etc. of controlled drugs by practitioners etc. convicted of certain offences);
(h)section 13f91 (directions prohibiting prescribing, supply etc. of controlled drugs by practitioners in other cases);
(i)section 17 (power to obtain information from doctors, pharmacists etc. in certain circumstances);
(j)section 19f92 (attempts etc. to commit offences), but only in relation to an offence listed in sub-paragraphs (a) to (i) of this paragraph; and
(k)section 20 (assisting in or inducing commission outside United Kingdom of offence punishable under corresponding law).
53.An offence under section 50(3) (penalty for improper importation of goods) or section 170 (fraudulent evasion of duty) of the Customs and Excise Management Act 1979f93 in relation to goods prohibited to be imported under section 3(1) of the Misuse of Drugs Act 1971f94 (restriction of importation and exportation of controlled drugs).
54.An offence under the Criminal Justice (International Co-operation) Act 1990f95.
Escape from custody etc.
55.An offence under section 316 of the Mental Health (Care and Treatment) (Scotland) Act 2003f96 (inducing and assisting absconding etc.).
56.An offence under section 91 of the Police and Fire Reform (Scotland) Act 2012f97 (escape from custody).
Financial Services
57.An offence under the Financial Services and Markets Act 2000f98.
58.An offence under the Financial Services Act 2012f99.
Fire safety
59.An offence under section 72(1) or (3) of the Fire (Scotland) Act 2005 (offences)f100.
Firearms
60.An offence under the Firearms Act 1968f101, except an offence under any of the following provisions—
(a)section 16 (possession of firearm with intent to injure);
(b)section 16A (possession of firearm with intent to cause fear or violence);
(c)section 17 (use of firearm to resist arrest); and
(d)section 18 (carrying firearm with criminal intent).
61.An offence under section 50(5) of the Civic Government (Scotland) Act 1982f102 (drunk in possession of firearm).
62.An offence under the Firearms (Amendment) Act 1997f103.
63.An offence under any of the following provisions of the Violent Crime Reduction Act 2006f104—
(a)section 28 (using someone to mind a weapon);
(b)section 32 (sales of air weapons by way of trade or business to be face to face);
(c)section 35 (restriction on sale and purchase of primers); and
(d)section 36 (manufacture, import and sale of realistic imitation firearms).
Food safety and standards
64.65.An offence under regulation 4(b) of the General Food Regulations 2004f108.
Forced marriage
66.An offence under section 9 of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 (offence of breaching order)f109.
Fraud and forgery
67.An offence under the Forgery and Counterfeiting Act 1981f110.
68.An offence under section 46A of the Criminal Law (Consolidation) (Scotland) Act 1995 (false monetary instruments)f111.
69.An offence under section 49 of the Criminal Justice and Licensing (Scotland) Act 2010 (articles for use in fraud)f112.
70.An offence under section 92 of the Police and Fire Reform (Scotland) Act 2012 (impersonation etc.)f113.
Harassment
71.An offence under section 234A of the Criminal Procedure (Scotland) Act 1995 (non-harassment orders)f114.
72.An offence under section 9 of the Protection from Harassment Act 1997 (breach of non-harassment order)f115.
Immigration, etc.
73.An offence under any of the following provisions of the Immigration Act 1971f116—
(a)section 24f117 (illegal entry and similar offences);
(b)section 24Af118 (deception);
(c)section 25f119 (assisting unlawful immigration to member State);
(d)section 25Af120 (helping asylum-seeker to enter United Kingdom);
(e)section 25Bf121 (assisting entry to United Kingdom in breach of deportation or exclusion order);
(f)section 26f122 (general offences in connection with administration of Act);
(g)section 26Af123 (registration card);
(h)section 26Bf124 (possession of immigration stamp); and
(i)section 27f125 (offences by captains, owners or agents of ships or aircraft).
74.An offence under any of the following provisions of the Immigration and Asylum Act 1999f126—
(a)section 105 (false representations);
(b)section 106 (dishonest representations);
(c)any of the following paragraphs of Schedule 11—
(i)paragraph 1 (obtaining certificates of authorisation by false pretences);
(ii)paragraph 4f127 (assaulting a detainee custody officer); and
(iii)paragraph 5 (obstructing detainee custody officer); and
(d)any of the following paragraphs of Schedule 12—
(i)paragraph 3f128 (failure to submit to a medical examination);
(ii)paragraph 4f129 (assisting detained persons to escape);
(iii)paragraph 5 (bringing alcohol into a detention centre); and
(iv)paragraph 6 (conveying articles into or out of a detention centre).
75.An offence under section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004f130 (deportation or removal: cooperation).
76.An offence under section 21 of the Immigration, Asylum and Nationality Act 2006f131 (offence).
Insolvency
77.An offence under any of the following provisions of the Insolvency Act 1986f132—
(a)section 131f133 (company’s statement of affairs);
(b)section 206f134 (fraud, etc. in anticipation of winding up);
(c)section 208f135 (misconduct in course of winding up);
(d)section 216f136 (restriction on re-use of company names); and
(e)section 235f137 (duty to co-operate with office-holder).
Landmines
78.An offence under section 2 of the Landmines Act 1998f138 (prohibited conduct).
Medicines
79.An offence under any of the following provisions of the Medicines Act 1968f139—
(a)section 45 (offences under Part II), but only in relation to a contravention of section 7(2) (general provisions as to dealing with medicinal products); and
(b)section 67 (offences under Part III).
80.An offence under any of the following provisions of the Human Medicines Regulations 2012f140—
(a)regulation 34(1) (offences: breach of regulations and false information and defence concerning starting materials); and
(b)regulation 255(1)(a), (b), (c) or (d) (offences relating to dealings with medicinal products).
Mental health
81.An offence under section 318 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (false statements)f141.
Neglect of duty
82.An offence under Part 4 (shipping: alcohol and drugs) or Part 5 (aviation: alcohol and drugs) of the Railways and Transport Safety Act 2003f142.
83.An offence under section 22 of the Police and Fire Reform (Scotland) Act 2012 (failure to perform duty)f143.
Obscene material etc.
84.An offence under section 1(1) of the Indecent Displays Act 1981f144 (indecent displays).
85.86.An offence under section 85(3) of the Postal Services Act 2000f149 (prohibition on sending certain articles by post).
87.An offence under section 127(1) of the Communications Act 2003f150 (improper use of public electronic communications network).
Offences in relation to children
88.An offence under any of the following provisions of the Children and Young Persons (Scotland) Act 1937f151—
(a)section 15 (causing or allowing persons under 16 to be used for begging);
(b)section 22 (exposing children under seven to risk of burning);
(c)section 31(1) (penalties and legal proceedings in respect of general provisions as to employment);
(d)section 33 (prohibition of persons under sixteen taking part in performances endangering life or limb); and
(e)section 34 (restrictions on training for performances of a dangerous nature).
89.An offence under section 40(1) of the Children and Young Persons Act 1963f152 (offences).
90.An offence under section 50(2) of the Civic Government (Scotland) Act 1982f153 (drunk in charge of a child).
91.An offence under section 81 of the Children (Scotland) Act 1995f154 (offences in connection with orders etc. for the protection of children).
92.An offence under any of the following provisions of the Children’s Hearings (Scotland) Act 2011f155—
(a)section 59 (offences); and
(b)section 171 (offences related to absconding).
Offensive behaviour etc.
93.An offence under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012f156.
Offensive weapons
94.An offence under the Restriction of Offensive Weapons Act 1959f157.
95.An offence under section 50(3) (penalty for improper importation of goods) or section 170 (fraudulent evasion of duty) of the Customs and Excise Management Act 1979f158 in relation to goods prohibited to be imported under—
(a)section 1(2) of the Restriction of Offensive Weapons Act 1959 (penalties for offences in connection with dangerous weapons); or
(b)section 141(4) of the Criminal Justice Act 1988 (offensive weapons).
96.An offence under any of the following provisions of the Criminal Justice Act 1988f159—
(a)section 141 (offensive weapons); and
(b)section 141A (sale of knives and certain articles with blade or point to persons under eighteen).
97.An offence under any of the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995f160—
(a)section 47 (prohibition of the carrying of offensive weapons);
(b)section 48 (search for offensive weapons);
(c)section 49 (offence of having in a public place an article with a blade or point);
(d)section 49A (offence of having article with blade or point (or offensive weapon) on school premises);
(e)section 49C (offence of having offensive weapon etc. in prison); and
(f)section 50 (extension of constable’s power to stop, search and arrest without warrant).
Official Secrets Acts
98.An offence under the Official Secrets Act 1911f161.
99.An offence under the Official Secrets Act 1920f162.
100.An offence under the Official Secrets Act 1989f163.
Prisons
101.An offence under section 41 of the Prisons (Scotland) Act 1989 (unlawful introduction of tobacco, etc., into prison)f164.
Proceeds of crime and money laundering
102.103.An offence under the Proceeds of Crime Act 2002 (External Investigations) Order 2013f169.
104.An offence under the Proceeds of Crime Act 2002 (External Investigations) (Scotland) Order 2015f170.
Prostitution
105.An offence under any of the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995f171—
(a)section 7f172 (procuring);
(b)section 9f173 (permitting girl to use premises for intercourse);
(c)section 11f174 (trading in prostitution and brothel-keeping);
(d)section 12 (allowing child to be in brothel); and
(e)section 13(9)f175 (living on earnings of another from male prostitution).
106.An offence under the Prostitution (Public Places) (Scotland) Act 2007f176.
Public order
107.An offence under any of the following provisions of the Public Order Act 1986f177—
(a)section 1 (riot);
(b)section 2 (violent disorder);
(c)section 3f178 (affray);
(d)section 4 (fear or provocation of violence);
(e)section 4Af179 (intentional harassment, alarm or distress);
(f)section 5f180 (harassment alarm or distress);
(g)section 18f181 (use of words or behaviour or display of written material);
(h)section 19 (publishing or distributing written material);
(i)section 20 (public performance of play);
(j)section 21 (distributing, showing or playing a recording);
(k)section 22 (broadcasting or including programme in cable programme service);
(l)section 23 (possession of racially inflammatory material);
(m)section 29Bf182 (use of words or behaviour or display of written material);
(n)section 29C (publishing or distributing written material);
(o)section 29D (public performance of play);
(p)section 29E (distributing, showing or playing recording);
(q)section 29F (broadcasting or including programme in programme service); and
(r)section 29G (possession of inflammatory material).
Road traffic
108.An offence under any of the following provisions of the Road Traffic Act 1988f183—
(a)section 1f184 (causing death by dangerous driving);
(b)section 1Af185 (causing serious injury by dangerous driving);
(c)section 2 (dangerous driving);
(d)section 2Bf186 (causing death by careless, or inconsiderate, driving);
(e)section 3ZBf187 (causing death by driving: unlicensed or uninsured drivers);
(f)section 3ZCf188 (causing death by driving: disqualified drivers);
(g)section 3ZD (causing serious injury by driving: disqualified drivers);
(h)section 3Af189 (causing death by careless driving when under influence of drink or drugs);
(i)section 4(1)f190 (driving, or being in charge, when under the influence of drink or drugs);
(j)section 5(1)(a) (driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit); and
(k)section 178 (taking motor vehicle without authority, etc.).
Sexual offences
109.An offence under section 37(1) or (4) of the Sexual Offences (Scotland) Act 2009f191 (older children engaging in sexual conduct with each other).
Solicitors
110.An offence under the Solicitors (Scotland) Act 1980f192.
Terrorism
111.An offence under any of the following provisions of the Terrorism Act 2000f193—
(a)section 12 (support);
(b)section 13 (uniform);
(c)section 19f194 (disclosure of information: duty);
(d)section 21Af195 (failure to disclose: regulated sector);
(e)section 21Df196 (tipping off: regulated sector);
(f)section 36 (police powers);
(g)section 38Bf197 (information about acts of terrorism);
(h)section 39f198 (disclosure of information, &c.);
(i)section 51 (offences);
(j)section 116 (powers to stop and search);
(k)paragraph 32 of Schedule 5 (urgent cases); and
(l)paragraph 18 of Schedule 7f199 (offences).
112.Vets
113.Miscellaneous statutory offences
114.115.An offence under section 22 of the Rent (Scotland) Act 1984f209 (unlawful eviction and harassment of occupier).
116.An offence under section 85(1) of the Postal Services Act 2000f210 (prohibition on sending certain articles by post).
117.An offence under any of the following provisions of the Serious Organised Crime and Police Act 2005f211—
(a)section 67 (offences in connection with disclosure notices or search warrants);
(b)section 129f212 (corresponding Scottish offence);
(c)section 145 (interference with contractual relationships so as to harm animal research organisation); and
(d)section 146f213 (intimidation of persons connected with animal research organisation).
Statutory aggravations
118.An offence (other than an offence listed in Schedule A1) to which either of the following provisions of the Offences (Aggravation by Prejudice) (Scotland) Act 2009f214 applies—
(a)section 1(1) (prejudice relating to disability); or
(b)section 2(1) (prejudice relating to sexual orientation or transgender identity).
Other
Inchoate offences
119.An offence committed by aiding, abetting, counselling, procuring or inciting the commission of any offence listed in paragraphs 1 to 118 of this Schedule.
120.An offence committed by attempting or conspiring to commit any offence listed in paragraphs 1 to 118 of this Schedule.
Superseded offences
121.An offence superseded (whether directly or indirectly) by any offence listed in paragraphs 1 to 120 of this Schedule (and any qualification in relation to a listed offence applies to the superseded offence as it applies to the listed offence).
Combined offences
122.An offence which was charged, and the conviction for which was received, in conjunction with any offence listed in paragraphs 1 to 121 of this Schedule.
Corresponding offences elsewhere in the UK or abroad
123.An offence under the law of England and Wales or Northern Ireland, or any country or territory outside the United Kingdom, which corresponds to any offence listed in paragraphs 1 to 122 of this Schedule.”.
Signature
ANGELA CONSTANCE
A member of the Scottish Government
St Andrew’s House,
Edinburgh
9th September 2015
Explanatory note
(This note is not part of the Order)
This Order amends the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 (“the 2013 Order”). The 2013 Order disapplies specified provisions of the Rehabilitation of Offenders Act 1974 (“the Act”) which would otherwise prevent a person from having to disclose a spent conviction and protect that person from being prejudiced by that conviction or any failure to disclose it. Section 4(1) of the Act contains a general protection and also provides that evidence about spent convictions is not admissible in proceedings before a judicial authority and that a person must not be asked in such proceedings about a spent conviction (and if asked may refuse to answer). Section 4(2) relates to questions about spent convictions asked outwith judicial proceedings and provides that a person is entitled to treat such a question as if it does not relate to a spent conviction and must not be prejudiced by a failure to disclose a spent conviction in response to such a question. Section 4(3)(b) provides that a spent conviction or a failure to disclose it is not a proper ground for dismissing or excluding a person from any office, profession, occupation or employment or for otherwise prejudicing a person in respect of any of those things.
The general effect of the disapplication of these protections is that, in specified circumstances, those protections are removed so as to permit questions to be asked about spent convictions in order to assess a person’s suitability for admission to certain professions or occupations or to hold certain offices, types of employment, licences or permits. The disapplication also permits spent convictions to be a ground for excluding a person from, or otherwise prejudicing them in respect of, those professions, occupations or employments.
Article 2 inserts a number of new definitions into article 2 of the 2013 Order, including a definition of a “higher level disclosure” for the purposes of that Order, meaning a criminal record certificate issued under the Police Act 1997, an enhanced criminal record certificate issued under section 113B of that Act and a scheme record issued under section 52 of the Protection of Vulnerable Groups (Scotland) Act 2007.
Article 2 also inserts a new article 2A. New article 2A introduces the concept of a “protected conviction” into the 2013 Order. These are, in effect, convictions in relation to which the disapplications contained in the 2013 Order will not apply (and in relation to which the protections in the 1974 Act will continue to apply). Protected convictions include convictions which are spent and which are not listed in either Schedule A1 or B1 of the 2013 Order (as inserted by this Order). They also include convictions which are listed in Schedule B1, but in respect of which a sentence of admonition or absolute discharge was given (which includes for these purposes the discharge of the referral of a child’s case to a children’s hearing) or in relation to which 7 ½ years have passed since the date of conviction if the person was under 18 on the date of conviction, or 15 years have passed if the person was 18 or over on that date.
Article 3 amends article 3 of the 2013 Order which excludes from the protection given by section 4(1) of the Act a range of specified proceedings. The amendment provides that the exclusion does not apply in relation to a number of listed proceedings in relation to protected convictions, with the effect that evidence of such convictions will not be admissible in those proceedings and a person must not be asked (and if asked need not answer) any question about such convictions in those proceedings.
Article 4 amends article 4 of the 2013 Order which excludes from the protection given by section 4(2) of the Act questions put in a range of specified circumstances. New paragraph (2) of article 4 of the 2013 Order provides that the exclusion does not apply in respect of protected convictions. This paragraph also disapplies the exclusion in respect of convictions for offences listed in Schedule B1 which are not protected convictions, but which are not included in a higher level disclosure which has been sent in connection with the purpose for which the question has been asked. This ensures that an individual is not required to disclose a conviction for an offence listed in Schedule B1 which is not protected, but in respect of which the individual may be entitled to apply for its removal from a higher level disclosure before it is sent or in respect of which the individual has already successfully applied for such removal. New paragraph (4) ensures that the exclusion of the protection in section 4(2) of the Act remains disapplied in respect of a failure to disclose a conviction which has taken place before a higher level disclosure was sent if that conviction subsequently appears in that disclosure. New paragraph (3) provides that the disapplication of the exclusion by new paragraph (2) does not have effect in relation to a range of specified questions, with the effect that all spent convictions must continue to be disclosed in response to those questions.
Article 5 amends article 5 of the 2013 Order which excepts from the protection given by section 4(3)(b) of the Act a number of professions, offices, types of employment and occupations and decisions. There is also excepted from that protection any action taken for the purpose of safeguarding national security, but nothing in this Order affects that.
New paragraph (2) of Article 5 of the 2013 Order provides that the exception does not apply in respect of protected convictions. This paragraph also disapplies the exception in respect of convictions for offences listed in Schedule B1 which are not protected convictions, but which are not included in a higher level disclosure which has been sent in connection with the profession, office, employment, occupation, decision or proposed decision to which the exception would otherwise apply. This ensures that an individual may not be dismissed or excluded from any office, profession occupation or employment on the basis of a conviction listed in Schedule B1 which is not protected but in respect of which the individual may be entitled to apply for its removal from a higher level disclosure before it is sent, or in respect of which the individual has already successfully applied for such removal. This applies equally to any failure to disclose such a conviction. New paragraph (4) ensures that the exceptions from the protection in section 4(3)(b) of the Act remain disapplied in respect of a failure to disclose a conviction which has taken place before a higher level disclosure was sent if that conviction subsequently appears in that disclosure. New paragraph (3) provides that the disapplication of the exceptions does not have effect in relation to the occupations listed in paragraph 1 or 4 of Part 3 of Schedule 4 to the 2013 Order (firearms dealer and occupations requiring an explosives certificate).
Article 6 inserts new Schedules A1 (containing a list of offences conviction of which must always be disclosed in the circumstances described in the 2013 Order even when spent) and B1 (containing a list of offences conviction of which may not be disclosed in those circumstances as set out above).