The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013

Made: 13th February 2013

Coming into force: 14th February 2013

In accordance with section 10(2) of that Act[^f00002], a draft of this Order has been laid before and approved by resolution of the Scottish Parliament.

Citation, commencement and extent

1

• (1) This Order may be cited as the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013, and comes into force the day after the day on which it is made.

• (2) This Order extends to Scotland and, in so far as it extends beyond Scotland, it does so only as a matter of Scots law.

Interpretation

2

• (1) In this Order—

• ...

• “the 2000 Act” means the Financial Services and Markets Act 2000[^f00003];

• “the 2001 Act” means the Regulation of Care (Scotland) Act 2001[^f00004];

• “the 2007 Act” means the Protection of Vulnerable Groups (Scotland) Act 2007[^f00005];

• “the 2010 Act” means the Public Services Reform (Scotland) Act 2010[^f00006];

• “accredited body” has the meaning given in section 46(2) of the Disclosure Act,

• “the Act” means the Rehabilitation of Offenders Act 1974;

• “actuary” means a member of the Institute and Faculty of Actuaries;

• “accountant” means a member of—the Association of Chartered Certified Accountants;the Institute of Chartered Accountants of Scotland;the Institute of Chartered Accountants in England and Wales;the Chartered Institute of Public Finance and Accountancy; orthe Chartered Institute of Management Accountants;

• “adopt” includes any arrangements to adopt a child, including arrangements for adoption where the proposed adopter is a relative of the child, whether under the Adoption and Children (Scotland) Act 2007[^f00007] or the Adoptions with a Foreign Element (Scotland) Regulations 2009[^f00008];

• “approved regulator” has the meaning given in Part 2 of the Legal Services (Scotland) Act 2010[^f00009];

• “associate”, except in the expression “registered associate”, in relation to a person (“A”), means someone who is a controller, director or a manager of A or, where A is a partnership, any partner of A;

• “authorised electronic money institution” has the meaning given by regulation 2(1) of the Electronic Money Regulations 2011[^f00010];

• “authorised payment institution” has the meaning given by regulation 2(1) of the Payment Services Regulations 2017;

• “care service” has the meaning given in section 47 of the 2010 Act;

• “children’s hearing outcome” means anything treated as a conviction for the purposes of section 3 (special provision with respect to certain disposals by children’s hearings) of the Act,

• “collective investment scheme” has the meaning given in section 235 of the 2000 Act;

• ...

• “contracting authority” means a contracting authority within the meaning of Article 1(9) of Directive 2004/18/EC;

• “contracting entity” means a contracting entity within the meaning of Article 2(2) of Directive 2004/17/EC;

• “controller” has the meaning given in section 422 of the 2000 Act[^f00012];

• “Council of Lloyd’s” means the council constituted by section 3 of the Lloyd’s Act 1982[^f00013];

• “depositary”, in relation to an authorised contractual scheme, has the meaning given in section 237(2) of the 2000 Act;

• “Directive 2004/17/EC” means Directive 2004/17/EC of the European Parliament and of the Council of 31st March 2004[^f00014];

• “Directive 2004/18/EC” means Directive 2004/18/EC of the European Parliament and of the Council of 31st March 2004[^f00015];

• “director” has the meaning given in section 417 of the 2000 Act;

• “Disclosure Act” means the Disclosure (Scotland) Act 2020,

• “electronic money institution” has the meaning given in regulation 2(1) of the Electronic Money Regulations 2011[^f00016];

• “enactment” includes an Act of the Scottish Parliament and any order, regulation or other instrument having effect by virtue of such an Act;

• “the FCA” means the Financial Conduct Authority;

• “firearms dealer” has the meaning given in section 57(4) of the Firearms Act 1968[^f00017];

• “Head of Practice” has the meaning given in Part 2 of the Legal Services Act;

• “health services” means services provided under the National Health Service (Scotland) Act 1978[^f00018] and similar services provided otherwise than under the National Health Service;

• “Her Majesty’s Inspectors” has the meaning given in section 135 of the Education (Scotland) Act 1980[^f00019];

• ...

• “judicial appointment” means an appointment to any office by virtue of which the holder has power (whether alone or with others) under any enactment or rule of law to determine any question affecting the rights, privileges, obligations or liabilities of any person;

• “key worker” means—any individual who is likely, in the course of exercising the duties of that individual’s office or employment, to play a significant role in the decision making process of the FCA, the PRA or the Bank of England in relation to the exercise of its public functions (within the meaning of section 349(5) of the 2000 Act); orany individual who is likely, in the course of exercising the duties of that individual’s office or employment, to support directly an individual mentioned in paragraph (a);

• “lay representative” means a person who—is representing a party in civil proceedings in the sheriff court or proceedings in the Court of Session; andis not—a solicitor or an advocate; orsomeone having the right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

• “the Legal Services Act” means the Legal Services (Scotland) Act 2010[^f00022];

• “Level 2 disclosure” has the meaning given in section 8 of the Disclosure Act,

• “licensed legal services provider” has the meaning given in Part 2 of the Legal Services Act[^f00023];

• “made available” means, in relation to a Level 2 disclosure, provided to the accredited body that countersigned the application in accordance with section 18(1)(a) of the Disclosure Act,

• “manager” has the meaning given in section 423 of the 2000 Act;

• “non-solicitor investor” has the meaning given in Part 2 of the Legal Services Act[^f00024];

• “open-ended investment company” has the meaning given in section 236 of the 2000 Act;

• “operator”, in relation to an authorised contractual scheme, has the meaning given in section 237(2) of the 2000 Act;

• “Part 4A permission” has the meaning given by section 55A(5) of the 2000 Act;

• “payment services” has the meaning given in regulation 2(1) of the Payment Services Regulations 2017;

• “personal information” means any information (in any form) which relates to a living individual who can be identified from that data, which is of a confidential nature and is not in the public domain;

• “the PRA” means the Prudential Regulation Authority;

• “Practice Committee” has the meaning given in Part 2 of the Legal Services Act[^f00026];

• “private hire driver” means a driver of a private hire car, as defined by section 23(1) of the Civic Government (Scotland) Act 1982[^f00027], who is required to be licensed by a licensing authority under the provisions of that Act;

• “prosecutor” has the meaning given in section 307 of the Criminal Procedure (Scotland) Act 1995[^f00028];

• ...

• “recognised clearing house” means a recognised clearing house as defined in section 285 of the 2000 Act;

• “registered account information service provider” has the meaning given by regulation 2(1) of the Payment Services Regulations 2017;

• “registered associate” means a person registered under the Anaesthesia Associates and Physician Associates Order 2024;

• “registered chiropractor” has the meaning given in section 43 of the Chiropractors Act 1994[^f00029];

• “registered European lawyer” has the meaning given in section 65 of the Solicitors (Scotland) Act 1980[^f00030];

• “registered foreign lawyer” has the meaning given in section 65 of the Solicitors (Scotland) Act 1980[^f00031];

• “registered osteopath” has the meaning given in section 41 of the Osteopaths Act 1993[^f00032];

• “registered pharmacist” means a person who is registered as a pharmacist in Part 1 or 4 of the register maintained under article 19 of the Pharmacy Order 2010[^f00033];

• “registered pharmacy technician” means a person who is registered in Part 2 or 5 of the register maintained under article 19 of the Pharmacy Order 2010;

• “registered teacher” means a teacher registered under the Public Services Reform (General Teaching Council for Scotland) Order 2011[^f00034];

• “a regulated role with adults” has the meaning given in section 91(3) of the 2007 Act;

• “a regulated role with children” has the meaning given in section 91(2) of the 2007 Act;

• “relevant collective investment scheme” means a collective investment scheme which is recognised under section ... 270 (schemes authorised in designated countries or territories), 271A (schemes authorised in approved countries) or 272 (individually recognised overseas schemes) of the 2000 Act;

• “school” has the meaning given in section 135(1) of the Education (Scotland) Act 1980,

• “school care accommodation service” has the meaning given in paragraph 3 of schedule 12 of the Public Services Reform (Scotland) Act 2010,

• “Scottish Social Services Council” has the meaning given in section 43 of the 2001 Act;

• ...

• “small electronic money institution” has the meaning given in regulation 2(1) of the Electronic Money Regulations 2011;

• “small payment institution” has the meaning given in regulation 2(1) of the Payment Services Regulations 2017;

• “Social Care and Social Work Improvement Scotland” has the meaning given in section 44 of the 2010 Act;

• “social service worker” has the meaning given in section 77 of the 2001 Act;

• “social worker” has the meaning given in section 77 of the 2001 Act[^f00036];

• “taxi driver” means a driver of a taxi as defined by section 23(1) of the Civic Government (Scotland) Act 1982, who is required to be licensed by a licensing authority under the provisions of that Act;

• “trustee”, in relation to a unit trust scheme, has the meaning given in section 237(2) of the 2000 Act;

• ...

• “UK recognised investment exchange” means an investment exchange in relation to which a recognition order under section 290 of the 2000 Act, otherwise than by virtue of section292(2) (overseas investment exchanges) of that Act, is in force;

• “work” includes work of any kind, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract.

• (1A) In this Order references to the Bank of England do not include the Bank acting in its capacity as the Prudential Regulation Authority.

• (2) Any reference in this Order to a numbered article or Schedule is, unless the context otherwise requires, a reference to the article or Schedule so numbered in this Order.

Exclusion of section 4(1) of the Act

3

• (1) The application of section 4(1) of the Act is excluded in relation to—

• (a) any proceedings specified in Schedule 1; and

• (b) any proceedings with respect to a decision or a proposed decision specified in Part 1 of Schedule 2—

• (i) to the extent that there falls to be determined in those proceedings any issue relating to a spent conviction or to circumstances ancillary thereto; and

• (ii) to the extent that section 4(1) renders inadmissible any evidence relating to the conviction or circumstances or removes the requirement to answer any question relating to the conviction or circumstances.

• (2) But the application of section 4(1) of the Act is not excluded in relation to any non-disclosable conviction or non-disclosable children’s hearing outcome, or any circumstances ancillary to such a conviction or outcome, in relation to—

• (a) proceedings specified in paragraphs 1, ... 6, 8, 9, 13, 15, 16, 18, 20, 25 or 28 of Schedule 1; or

• (b) proceedings specified in paragraph (1)(b).

Exclusion of section 4(2)(a) and (b) of the Act

4

• (1) The application of section 4(2)(a) and (b) of the Act is excluded in relation to questions put in the circumstances to which Schedule 3 applies.

• (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 a children’s hearing outcome, or any circumstance ancillary to that conviction or outcome, if that conviction or outcome is—

• (a) a non-disclosable conviction,

• (b) a conviction which—

• (i) falls within paragraph (2A), and

• (ii) is not included in a Level 2 disclosure made available in connection with the purpose for which the question is put,

• (c) a non-disclosable children’s hearing outcome, or

• (d) a children’s hearing outcome which—

• (i) falls within paragraph (2B), and

• (ii) is not included in a Level 2 disclosure made available in connection with the purpose for which the question is put.

• (2A) A spent conviction falls within this paragraph if it is—

• (a) a conviction for an offence listed in schedule A1 and either—

• (i) the person was aged under 18 on the date of conviction and at least 5 years and 6 months have passed since the date of conviction; or

• (ii) the person was aged 18 or over on the date of conviction and at least 11 years have passed since the date of conviction; or

• (b) a conviction for an offence listed in schedule B1 which is not a non-disclosable conviction.

• (2B) A children’s hearing outcome falls within this paragraph if—

• (a) the offence which led to the children’s hearing outcome is an offence listed in schedule A1 and at least 5 years and 6 months have passed since the date of the children’s hearing outcome, or

• (b) the offence which led to the children’s hearing outcome is an offence listed in schedule B1 and it is not a non-disclosable children’s hearing outcome.

• (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) or (aa) of Schedule 3;

• (ii) a certificate mentioned in paragraph 3(3)(c) of that Schedule;

• (iii) a licence mentioned in paragraph 3(3)(ca) of that Schedule;

• (b) any question mentioned in paragraphs 6(1) or 16 of Schedule 3; ...

• (ba) any question put to assess the suitability of a person for an office or employment mentioned in paragraph 6 of Part 2 of schedule 4, 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 which falls within paragraph (2A) or a children’s hearing outcome which falls within paragraph (2B) is included in a Level 2 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 outcome, or any circumstances ancillary to that conviction or outcome, which occurred before that Level 2 disclosure was made available.

• (5) Paragraph (4) does not apply if the failure to disclose the conviction or children’s hearing outcome related to a question asked when the conviction or outcome did not fall within paragraph (2A) or (2B).

Exceptions from section 4(3) of the Act

5

• (1) There is excepted from the provisions of section 4(3)(b) of the Act—

• (a) any profession, office, employment or occupation specified in Schedule 4;

• (b) any action taken for the purpose of safeguarding national security; and

• (c) any decision or proposed decision taken by a person specified in Part 1 of Schedule 2 to do or to refuse to do anything specified in that Part.

• (2) But the exceptions in paragraphs (1)(a) and (c) do not apply in relation to a spent conviction or a children’s hearing outcome, or any circumstances ancillary to that conviction or outcome, if that conviction or outcome is—

• (a) a non-disclosable conviction,

• (b) a conviction which—

• (i) falls within paragraph (2A), and

• (ii) is not included in a Level 2 disclosure made available in connection with the profession, office, employment, occupation, decision or proposed decision to which the exception would otherwise apply,

• (c) a non-disclosable children’s hearing outcome, or

• (d) a children’s hearing outcome which—

• (i) falls within paragraph (2B), and

• (ii) is not included in a Level 2 disclosure made available in connection with the profession, office, employment, occupation, decision or proposed decision to which the exception would otherwise apply.

• (2A) A spent conviction falls within this paragraph if it is—

• (a) a conviction for an offence listed in schedule A1 and either—

• (i) the person was aged under 18 on the date of conviction and at least 5 years and 6 months have passed since the date of conviction; or

• (ii) the person was aged 18 or over on the date of conviction and at least 11 years have passed since the date of conviction; or