Police Act 1997 and Protection of Vulnerable Groups (Scotland) Act 2007: consultation on amendments

Proposed Draft Police Act 1997 and Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018

Purpose

This document gives public notice of the proposed draft Police Act 1997 and Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018 ("the 2018 Proposed Draft Order") under section 13(3)(b) of the Convention Rights Compliance (Scotland) Act 2001. This document also seeks written observations on the 2018 Proposed Draft Order.

We welcome your written observations on all aspects of the 2018 Proposed Draft Order. The last date on which we will accept written observations is 26 November 2017.

All observations will be considered by Scottish Ministers and, as soon as practicable after 26 November 2017, we intend to lay a statement before the Scottish Parliament together with a draft Police Act 1997 and Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018. That statement will summarise all the observations received and will also specify whether or not any modifications have been made to the draft Order and the reasons for those changes.

A copy of the 2018 Proposed Draft Order and the associated Policy Note which explains the amendments in detail can be found below.

Introduction

Standard and enhanced disclosures are issued under the Police Act 1997 ("the 1997 Act"), and disclosures of PVG scheme records are issued under the Protection of Vulnerable Groups (Scotland) Act 2007 ("the 2007 Act") - these types of disclosures are referred to collectively as 'higher level disclosures'. In 2015, the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial (No. 2) Order 2015 amended the 1997 and 2007 Acts in relation to the spent conviction information which could be disclosed in a higher level disclosure. That Order inserted lists of offences into schedules 8A and 8B of the 1997 Act. Schedule 8A lists certain spent convictions which will continue always to be disclosed due to the serious nature of the offence (the 'offences which must always be disclosed' list); schedule 8B lists certain spent convictions which are to be disclosed depending on the length of time since conviction and the disposal of the case (the 'offences which are to be disclosed subject to rules' list).

In the case P v Scottish Ministers [2017] CSOH 33, P raised a petition for judicial review in relation to the disclosure of a previous conviction for lewd and libidinous practices on his PVG scheme record. Although the conviction was spent, the offence had been included in P's scheme record due to it being in the list of offences that must always be disclosed (the "Always Disclose List" as listed in schedule 8A of the 1997 Act ^[1] ). On 17 May 2017 the court declared that, insofar as they require automatic disclosure of P's conviction before the Children's Hearing, the provisions of the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial (No. 2) Order 2015 ("the remedial order") unlawfully and unjustifiably interfered with the petitioner's right under Article 8 of the European Convention on Human Rights, and Scottish Ministers had no power to make the provisions in terms of section 57(2) of the Scotland Act 1998 ("the 1998 Act").

The effect of the court order has been suspended under section 102 of the Scotland Act 1998 Act for nine months (to 17 February 2018) to allow Ministers to remedy the legislation.

Following the court's decision, the Scottish Ministers undertook an assessment of the 1997 Act and the PVG Scheme operated under the 2007 Act and concluded that the legislation should be amended further to limit the circumstances in which convictions are automatically disclosed. The functions of the Scottish Ministers under the 1997 Act and the 2007 Act are exercised through Disclosure Scotland.

The 1997 Act and the 2007 Act regulate what is disclosed in a higher level disclosure. But the Rehabilitation of Offenders Act 1974 ("the 1974 Act") together with the Rehabilitation of Offenders Act (Exclusions and Exceptions) (Scotland) Order 2013 ("the 2013 Order") regulate what convictions an individual must disclose when asked about their previous convictions in certain circumstances. Following the end of this consultation, when the draft Police Act 1997 and Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018 is laid before the Scottish Parliament, the Scottish Ministers also intend to lay a draft Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order. That draft Order will ensure that the requirements on individuals to self-disclose convictions will align fully with the amended disclosure provisions of the 1997 Act and the 2007 Act.

Summary of the 2018 Proposed Draft Order

The 2018 Proposed Draft Order sets out proposed amendments to the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007. It provides that individuals who have been convicted of offences which are listed in schedule 8A (offences which must always be disclosed) should in certain specified circumstances have the right to apply to a sheriff in order to seek removal of that conviction information before their disclosure is sent to a third party, such as an employer. This will provide similar, although more limited, right to apply to the sheriff as currently exists in relation to offences listed in schedule 8B of the 1997 Act.

The proposed policy to remedy the legislation is that higher level disclosure recipients will be able to apply to a sheriff for removal of schedule 8A convictions in the following specified circumstances:-

• the conviction for a schedule 8A offence is spent and -

(a) where the person was aged under 18 at the date of conviction, 7 years and 6 months have passed since the date of the conviction; or

(b) where the person was aged 18 or over at the date of conviction, 15 years have passed since the date of the conviction.

The offences listed in schedule 8A will remain unchanged and the list therefore continues to comprise serious offences. The new right to apply to the sheriff will allow an application for removal of convictions after a period of time has passed since conviction for a schedule 8A offence. This application can be made:-

• 15 years from the date of conviction, where the person was aged 18 or over at the date of conviction, or
• 7.5 years from the date of conviction, where the person was aged under 18 at the date of conviction.

If no application to a sheriff is made, automatic disclosure of a spent conviction for an offence on schedule 8A will continue indefinitely.

These changes will ensure that the rules for disclosure of spent convictions take further account of the age of the person at the time of the conviction as well as the time which has elapsed since conviction. Before removing a conviction from a higher level disclosure a sheriff would need to be satisfied that the conviction is not relevant to the purpose of the standard or enhanced disclosure, or (for PVG disclosures) not relevant to regulated work with children or protected adults. In dealing with such an application the sheriff could also consider the circumstances of the offence. This new right to apply to a sheriff in relation to schedule 8A convictions strikes a fair balance between an individual's right to respect for their private life and the interests of public protection.

Impact Assessments

In line with usual practice, partial Impact Assessments have been prepared. We have prepared a partial Business and Regulatory Impact Assessment ( BRIA), a partial Equality Impact Assessment ( EQIA) and a partial Child Rights and Wellbeing Impact Assessment ( CRWIA).

A partial BRIA, EQIA and CRWIA are available with this consultation.

Legislation

A copy of the Police Act 1997, the Protection of Vulnerable Groups (Scotland) Act 2007 and the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial (No. 2) Order 2015 (Scottish Statutory Instrument 2015 No. 423) can be found at:

http://www.legislation.gov.uk/ukpga/1997/50/contents

http://www.legislation.gov.uk/asp/2007/14/contents

http://www.legislation.gov.uk/ssi/2015/423/contents/made