Age of Criminal Responsibility (Scotland) Act 2019

PART 1 — AGE OF CRIMINAL RESPONSIBILITY

Interpretation

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For section 41 of the Criminal Procedure (Scotland) Act 1995 substitute—

(41) A child under the age of 12 years cannot commit an offence.

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Raising the age of criminal responsibility: consequential repeal and saving

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• (1) Section 41A of the Criminal Procedure (Scotland) Act 1995 is repealed.

• (2) Despite that repeal, section 41A continues to have effect in relation to offences committed before the day on which this section comes into force.

No referral of child under 12 to children’s hearing on offence ground

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For the purposes of section 66(2)(a) (investigation and determination by Principal Reporter) of the Children's Hearings (Scotland) Act 2011 (the “2011 Act”), the Principal Reporter may not determine that the ground in section 67(2)(j) (the offence ground) applies where the child—

• (a) committed the offence before the day on which section 1 came into force, and

• (b) was under 12 years of age when the offence was committed.

PART 2 — DISCLOSURE OF CONVICTIONS AND OTHER INFORMATION RELATING TO TIME WHEN PERSON UNDER 12

CHAPTER 1 — DISCLOSURE OF CONVICTIONS ETC.

Pre-12 convictions etc. not be treated as convictions

Amendment of the Rehabilitation of Offenders Act 1974

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• (1) The Rehabilitation of Offenders Act 1974 (the “1974 Act”) is amended as follows.

• (2) In section 1 (rehabilitated persons and spent convictions)—

• (a) in subsection (1C), for “, (5) and (6)” substitute “ and (5) to (8) ”,

• (b) after subsection (6) insert—

(7) This Act does not apply to any conviction of an offence committed when the individual was under 12 years of age. (8) Accordingly, references in this Act to a conviction do not include references to any such conviction.

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• (3) In section 3 (certain disposals of children's hearing treated as conviction), after subsection (2) insert—

(3) This section does not apply where the acts or omissions constituting the ground mentioned in subsection (1) occurred when the child was under 12 years of age.

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• (4) In section 8B (protection afforded to spent alternatives to prosecution: Scotland), after subsection (2) insert—

(2A) This section does not apply where the acts or omissions constituting the offence mentioned in subsection (1) occurred when the person was under 12 years of age.

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• (5) In section 9B (unauthorised disclosure of spent alternatives to prosecution: Scotland), after subsection (9) insert—

(10) This section does not apply where the acts or omissions constituting the offence mentioned in subsection (1)(b) occurred when the person was under 12 years of age.

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Disclosure of information about relevant behaviour

Disclosure of information about convictions etc. relating to time when person under 12

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• (1) Sections 6 to 8 apply to behaviour (“relevant behaviour”) of a person which occurred when the person was under 12 years of age and—

• (a) which resulted in the person being—

• (i) convicted of an offence, or

• (ii) given an alternative to prosecution (within the meaning of section 8B(1) of the 1974 Act), or

• (b) in relation to which—

• (i) the person was taken to a place of safety by virtue of section 28,

• (ii) an order under section 36 authorising a search in relation to the person was applied for,

• (iii) the person was interviewed by virtue of section 40(2),

• (iv) a child interview order was applied for in respect of the person,

• (v) the person was questioned by virtue of section 54,

• (vi) an order under section 63 authorising the taking of relevant physical data or a relevant sample from the person was applied for,

• (vii) relevant physical data or a relevant sample was taken from the person by virtue of section 59(1)(b) or 69.

• (2) For the purposes of sections 6 to 8, circumstances ancillary to relevant behaviour includes—

• (a) where the behaviour resulted in the person being convicted of an offence, any circumstances of—

• (i) the offence which was the subject of the conviction,

• (ii) the conduct constituting the offence,

• (iii) any process or proceedings preliminary to the conviction,

• (iv) any sentence imposed in respect of the conviction,

• (v) any proceedings (whether by way of appeal or otherwise) for reviewing the conviction or sentence,

• (vi) anything done in pursuance of, or undergone in compliance with, any such sentence,

• (b) where the behaviour resulted in the person being given an alternative to prosecution, any circumstances of—

• (i) the offence in respect of which the alternative to prosecution is given or the conduct constituting the offence,

• (ii) any process preliminary to the alternative to prosecution being given (including consideration by any person of how to deal with the offence and the procedure for giving the alternative to prosecution),

• (iii) any proceedings for the offence which took place before the alternative to prosecution was given (including anything that happened after that time for the purpose of bringing the proceedings to an end),

• (iv) any judicial review proceedings relating to the alternative to prosecution,

• (v) anything done or undergone in pursuance of the terms of the alternative to prosecution.

• (3) For the purposes of subsections (1)(a)(i) and (2)(a)—

• (a) the acceptance or establishment (or deemed establishment), in relation to the person, of the ground of referral to the children's hearing referred to in section 3(1) of the 1974 Act is to be treated as a conviction, and

• (b) any disposal of the case by the children's hearing is to be treated as a sentence.

• (4) The Scottish Ministers may, by regulations, modify the meanings in subsections (1) and (2) of relevant behaviour and circumstances ancillary to such behaviour.

• (5) Regulations under subsection (4) may modify any enactment (including this Act).

Disclosure of information about relevant behaviour: judicial proceedings

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• (1) No evidence is admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Scotland (“judicial proceedings”) to prove relevant behaviour of the person, or circumstances ancillary to such behaviour.

• (2) The person is not, in any such proceedings, to be asked (and, if asked, is not to be required to answer) any question relating to the person's past which cannot be answered without acknowledging or referring to relevant behaviour of the person or circumstances ancillary to such behaviour.

• (3) In this section and sections 7 and 9, “judicial proceedings” includes, in addition to any court proceedings, proceedings before any tribunal, body or person having power by virtue of any enactment, rule of law, arbitration agreement, rules, custom or practice—

• (a) to determine any question affecting the rights, privileges, obligations or liabilities of any person, or

• (b) to receive evidence affecting the determination of any such question.

Disclosure of information about relevant behaviour: non-judicial proceedings

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• (1) Where a question is put to a person, other than in judicial proceedings, seeking information with respect to relevant behaviour of the person or of any other person—

• (a) the question is to be treated as not relating to that behaviour or to any circumstances ancillary to it (and the answer to the question may be framed accordingly), and

• (b) the person questioned is not to be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose that behaviour or, as the case may be, any circumstances ancillary to it in answering the question.

• (2) Any obligation imposed on any person by any enactment or rule of law, or by the provisions of any agreement or arrangement, to disclose any matters to any other person is not to extend to requiring the disclosure of relevant behaviour or any circumstances ancillary to it.

• (3) Relevant behaviour or any circumstances ancillary to it, or any failure to disclose relevant behaviour or any such circumstances, is not to be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing the person in any way in any occupation or employment.

Disapplication of sections 6 and 7

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• (1) Subsection (2) applies where a referral is made to the independent reviewer for a determination under section 18 as to whether information with respect to relevant behaviour ought to be included in a Level 2 disclosure.

• (2) Sections 6 and 7(1) and (2) do not apply—

• (a) for the purpose of the referral (including any appeal under section 20), and

• (b) in relation to the relevant behaviour which is the subject of the referral.

• (3) Subsection (4) applies where—

• (a) the independent reviewer has determined, on a review under section 18, that information with respect to relevant behaviour ought to be included in a Level 2 disclosure, and

• (b) such information is so included.

• (4) Sections 6 and 7 do not apply—

• (a) in relation to the purpose of the disclosure, and

• (b) in relation to the relevant behaviour with respect to which information is included in the Level 2 disclosure.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) Subsection (7) applies where information with respect to relevant behaviour is included in a Level 2 disclosure as mentioned in subsection (3)(b).

• (7) Subject to subsections (1) and (2), the application of sections 6 and 7 is not excluded in relation to that relevant behaviour, or any circumstances ancillary to it, during the period before the Level 2 disclosure was provided.

Further limitations on sections 6 and 7

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• (1) Section 6 does not apply to the determination of any issue, or to the admission or requirement of any evidence, relating to relevant behaviour of a person, or to circumstances ancillary to such behaviour, in any proceedings for the time being mentioned in subsection (2).

• (2) Those proceedings are—

• (a) any criminal proceedings (including any appeal or reference in a criminal matter),

• (b) any proceedings under Part 2 of the Sexual Offences Act 2003, or on appeal from any such proceedings,

• (c) any proceedings on an application under section 2, 4 or 5 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 or in any appeal under section 6 of that Act,

• (d) any proceedings relating to parental responsibilities or parental rights (within the meaning of section 1(3) and section 2(4) respectively of the Children (Scotland) Act 1995), guardianship, adoption or the provision by any person of accommodation, care or schooling for children under the age of 18 years,

• (e) any proceedings under Part II of the Children (Scotland) Act 1995 or under the Children's Hearings (Scotland) Act 2011,

• (f) any proceedings in which the person is a party or a witness, provided that, on the occasion when the issue or the admission or requirement of the evidence falls to be determined, the person consents to the determination of the issue or, as the case may be, the admission or requirement of the evidence despite the provisions of section 6,

• (g) in any proceedings brought under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc.).

• (3) Despite the provisions of section 6, a judicial authority in judicial proceedings (not being proceedings mentioned in subsection (2))—

• (a) may admit or, as the case may be, require evidence relating to relevant behaviour of a person or to circumstances ancillary to such behaviour, and

• (b) may determine any issue to which that evidence relates,

if the judicial authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may subsequently be put before it), that justice cannot be done in the case except by admitting or requiring that evidence.

• (4) The Scottish Ministers may by regulations—

• (a) modify subsection (2) to—

• (i) add proceedings to those mentioned in that subsection,

• (ii) vary a description of such proceedings,

• (iii) remove proceedings from that subsection,

• (b) make provision excluding the application of section 6 in relation to such other proceedings as may be specified in the regulations to such extent and for such purposes as may be so specified,

• (c) make provision excluding or modifying the application of section 7(1) in relation to questions put in such circumstances as may be specified in the regulations,

• (d) provide for such exceptions from the provisions of section 7(2) and (3) as seem to them appropriate, in such cases or classes of case, and in relation to relevant behaviour of such a description, as may be specified in the regulations.

CHAPTER 2 — INDEPENDENT REVIEW OF DISCLOSURE OF INFORMATION

Limitation on disclosure of information

Disclosure of information relating to time when person under 12

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In section 49 (vetting information) of the 2007 Act, after subsection (1) insert—

(1A) For the avoidance of doubt, information such as is mentioned in subsection (1)(c) may include information with respect to relevant behaviour (within the meaning of section 5(1)(a) of the Age of Criminal Responsibility (Scotland) Act 2019).

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• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appointment of independent reviewer

Independent reviewer

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There is to be an independent reviewer for the purposes of—

• (a) reviewing information concerning behaviour of persons when under 12 years of age before the disclosure of such information in a Level 2 disclosure, and

• (b) exercising other functions conferred on the reviewer by or under this Act or any other enactment.

Period and terms of appointment

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• (1) The Scottish Ministers are to appoint a person as the independent reviewer for a period of 3 years.

• (2) A person is to be appointed as independent reviewer on such terms and conditions as the Scottish Ministers determine.

• (3) A person may be reappointed as independent reviewer for a further period or periods.

• (4) A person is disqualified from appointment, and from holding office, as the independent reviewer if the person is or becomes—

• (a) a member of the House of Commons,

• (b) a member of the Scottish Parliament,

• (c) a member of the European Parliament, or

• (d) a councillor of a local authority.

• (5) The Scottish Ministers may pay such remuneration or allowances to the independent reviewer as they determine.

• (6) Where the office of independent reviewer is vacant or the reviewer is for any reason unable to exercise the reviewer's functions, the Scottish Ministers may designate a person to exercise those functions for such period as Ministers consider necessary.

• (7) The Scottish Ministers may remove a person from the office of independent reviewer, by giving notice to the person in writing, if—

• (a) the person has, since appointment, been convicted of an offence listed in schedule 1 or 2 of the 2020 Act,

• (b) the person becomes insolvent, or

• (c) the Scottish Ministers consider that the person—

• (i) is unable to exercise the reviewer's functions, or

• (ii) is unsuitable to continue to hold that office.

• (8) For the purposes of subsection (7)(b), a person becomes insolvent if—

• (a) the person's estate is sequestrated,

• (b) the person grants a trust deed for creditors or makes a composition or arrangement with creditors,

• (c) a voluntary arrangement proposed by the person is approved,

• (d) the person's application for a debt payment programme is approved under section 2 of the Debt Arrangement and Attachment (Scotland) Act 2002, or

• (e) the person becomes subject to any other kind of order or arrangement analogous to those described in paragraphs (a) to (d) anywhere in the world.

Administrative support

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• (1) The Scottish Ministers must provide, or ensure the provision of, such staff and property as they consider the independent reviewer requires for the purpose of carrying out the reviewer's functions.

• (2) The Scottish Ministers must consult the independent reviewer as to the staff and property the reviewer requires for the purpose of carrying out the reviewer's functions.

Review of information prior to disclosure

Referral of information to independent reviewer

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• (1) This section applies where—

• (a) the chief constable, having been requested to do so by the Scottish Ministers under section 14(1) of the 2020 Act, has identified information which relates to a time when the applicant was under 12 years of age and which, in the chief constable's opinion, ought to be included in a Level 2 disclosure, or

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) The chief constable must, before providing that information to the Scottish Ministers, refer that information to the independent reviewer together with the following—

• (a) in the case of information falling within subsection (1)(a), information about the purpose of the disclosure,

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) an explanation of why the chief constable considers the information ought to be included in the Level 2 disclosure, and