The Age of Criminal Responsibility (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2021

Made: 14th December 2021

Coming into force: 17th December 2021

In accordance with paragraphs 1, 2 and 3 of Schedule 7 to that Act a draft of this Order has been laid before and approved by a resolution of each House of Parliament.

PART 1

Introduction

Citation, commencement and extent

1

• (1) This Order may be cited as the Age of Criminal Responsibility (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2021 and comes into force on 17th December 2021.

• (2) Each amendment made by this Order has the same extent as the provision being amended.

Interpretation

2

In this Order “the 2019 Act” means the Age of Criminal Responsibility (Scotland) Act 2019[^f00002].

PART 2

Disclosure of convictions and other information relating to time when person under 12

Interpretation of Part 2

3

In this Part—

• ...

• “the 2007 Act” means the Protection of Vulnerable Groups (Scotland) Act 2007[^f00004],

• ...

• “chief officer” means—the chief constable of—a police force in England and Wales,the Police Service of Northern Ireland,the Ministry of Defence Police,the British Transport Police,the Civil Nuclear Constabulary,the Provost Marshal of—the Royal Navy Police,the Royal Military Police,the Royal Air Force Police,the Director General of the National Crime Agency, the Provost Marshal for serious crime.

• ...

• “independent reviewer” means the independent reviewer appointed under section 12 of the 2019 Act,

• “regulated role” has the meaning given by section 91 of the 2007 Act,

• “scheme member” has the meaning given by section 45(1) of the 2007 Act,

• “scheme record” has the meaning given by section 48 of the 2007 Act,

• “the scheme” has the meaning given by section 44 of the 2007 Act.

Limitation on disclosure of information relating to time when person under 12

4

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

• (2) In article 3 (provision of police information to the Scottish Ministers) of the Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Provisions) Order 2010[^f00006] —

• (a) after paragraph (2) insert—

(2A) But a chief officer mentioned in paragraph (2B) may, in response to a request for information of the type described in section 49(1)(c) of the 2007 Act, provide under paragraph (1) information relating to a time when the scheme member was under 12 years of age only where— (a) the independent reviewer determines, on a review under section 18 of the 2019 Act, that the information ought to be included in the scheme member’s scheme record and— (i) no appeal under section 20 of the 2019 Act is taken, or (ii) such an appeal having been taken, the sheriff confirms the determination under subsection (3)(a) of that section, or (b) the sheriff, on an appeal under section 20 of the 2019 Act, determines under subsection (3)(b) of that section that the information ought to be included in the scheme member’s scheme record. (2B) The chief officers referred to in paragraph (2A) are the chief officers of the following police forces— (a) a police force in England and Wales, (b) the Police Service of Northern Ireland, (c) the Royal Navy Police, (d) the Royal Military Police, (e) the Royal Air Force Police, (f) the Ministry of Defence Police, (g) the British Transport Police, (h) the Civil Nuclear Constabulary, (i) the National Crime Agency.

• (b) after paragraph (4) insert—

(4A) In paragraph (2A)— - “the 2019 Act” means the Age of Criminal Responsibility (Scotland) Act 2019, - “independent reviewer” means the independent reviewer appointed under section 12 of the Age of Criminal Responsibility (Scotland) Act 2019.

Referral of information to independent reviewer

5

• (1) This article applies where—

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

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

• (2) The chief officer 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 paragraph (1)(a), information about the purpose of the disclosure,

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

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

• (d) any other information the chief officer considers relevant to the exercise of the independent reviewer’s functions.

• (3) If provision of the type mentioned in section 23(2)(a) of the 2019 Act is in force, the chief officer must refer the information that the chief officer has identified and considers ought to be included in a Level 2 disclosure ... to the independent reviewer within the time period specified by virtue of that section.

• (4) In this article—

• “the applicant” means the person whose application for a disclosure led to the request by the Scottish Ministers mentioned in paragraph (1)(a);

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

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

• “purpose of the disclosure” has the meaning given in section 69 of the Disclosure Act.

Notification of referral

6

Where a chief officer refers information to the independent reviewer under article 5, the chief officer must, at the same time as doing so, notify the Scottish Ministers of that fact.

Provision of information to the independent reviewer

7

• (1) The independent reviewer may by notice require any person mentioned in paragraph (3) to provide the reviewer with information which the reviewer believes the person holds and which the reviewer considers is necessary to carry out a review under section 18 of the 2019 Act.

• (2) A notice under paragraph (1) must specify the information sought and the period within which it must be provided.

• (3) The persons referred to in paragraph (1) are—

• (a) a chief officer,

• (b) a local authority,

• (c) Her Majesty’s Courts and Tribunals Service,

• (d) the Disclosure and Barring Service,

• (e) the Department of Justice in Northern Ireland,

• (f) any other person the independent reviewer considers appropriate.

• (4) If provision of the type mentioned in section 23(2)(d) of the 2019 Act is in force, a person required under paragraph (1) to provide information to the independent reviewer must do so within the time period specified by virtue .of that section.

• (5) In paragraph (3), “local authority” means a local authority in England and Wales as defined (in relation to England and Wales) in section 1 of the Local Authorities (Goods and Services) Act 1970[^f00008].

Amendment of the Data Protection Act 2018

8

In paragraph 4 of Schedule 18 to the Data Protection Act 2018[^f00009] (relevant records relating to statutory functions)—

• (a) after sub-paragraph (2)(e)insert—

(f) the independent reviewer appointed under section 12 of the Age of Criminal Responsibility (Scotland) Act 2019.

• (b) after sub-paragraph (7) insert—

(8) In relation to the independent reviewer mentioned in sub-paragraph (2)(f), the “relevant functions” are the reviewer’s functions under Part 2 of the Age of Criminal Responsibility (Scotland) Act 2019.

PART 3 — Police powers etc.

Cross-border enforcement by constables of territorial police forces

Interpretation of Part 3

9

• (1) In this Part—

• “constable” means a constable of— the Police Service of Scotland, a police force in England or Wales, the Police Service of Northern Ireland,

• “Scottish constable” means a constable of the Police Service of Scotland.

• (2) In this Part—

• (a) the following terms have the meanings given by section 76 of the 2019 Act—

• “child”,

• “child interview order”,

• “intimate sample”,

• “investigative interview”,

• “relevant physical data”,

• “relevant sample”, “parent” has the meaning given, for the purposes of Part 4 of the 2019 Act (other than section 40(7) of that Act), by section 76 of that Act, the following terms have the meanings given by section 36 of the 2019 Act—

• “premises”,

• “vehicle”, “registered dentist” has the meaning given by section 53(1) of the Dentists Act 1984[^f00010], “registered medical practitioner” means a fully registered person within the meaning of the Medical Act 1983[^f00011] who holds a licence to practice under that Act, “registered nurse” means a person registered in the register maintained under article 5 of the Nursing and Midwifery Order 2001[^f00012] by virtue of qualifications in nursing.

Search

10

• (1) Paragraph (2) applies where an order is made under section 36 of the 2019 Act in respect of a child and—

• (a) the child is in England, Wales or Northern Ireland, or

• (b) the order authorises the search of—

• (i) premises in England, Wales or Northern Ireland, or

• (ii) a vehicle which is for the time being in England, Wales or Northern Ireland.

• (2) A constable may, for the purposes of the order, take any action which a Scottish constable would be entitled to take for those purposes if the child was in Scotland, the premises were in Scotland or, as the case may be, the vehicle was in Scotland.

• (3) Except where section 37 of the 2019 Act has already been complied with, a constable who intends to act under paragraph (2) must, before doing so—

• (a) provide a copy of the order to—

• (i) the child, and

• (ii) in so far as practicable, a parent of the child, and

• (b) at the same time, explain the order to the child in a way that is appropriate to the child’s age and maturity.

• (4) A constable who enters any unoccupied premises by virtue of paragraph (2) must leave the premises as effectively secured against unauthorised entry as the constable found them.

Interviews

11

• (1) Paragraph (2) applies where a child in respect of whom an application for a child interview order is being made is in England, Wales or Northern Ireland.

• (2) Any child interview order made as a result of that application may, in addition to doing anything permitted to be done in the order by virtue of section 44 of the 2019 Act—

• (a) require any person in England, Wales or Northern Ireland in a position to do so to produce the child to a person specified in the order for the purpose of ensuring the child’s attendance at the investigative interview authorised by the order,

• (b) authorise—

• (i) the transporting of the child to and from the place where the interview is to take place (by the person specified in the order or another person),

• (ii) any other action (including action to safeguard and promote the wellbeing of the child) required in connection with such transportation.

• (3) Paragraph (4) applies where—

• (a) a child interview order has been made in respect of a child, and

• (b) the child is in England, Wales or Northern Ireland.

• (4) A constable may, for the purposes of ensuring the child’s attendance at an investigative interview authorised by the order and planned by virtue of section 47 of the 2019 Act, take any action which a Scottish constable would be entitled to take for that purpose if the child was in Scotland.

Taking of prints and samples from child

12

• (1) Paragraph (2) applies where a child in respect of whom an application for an order under section 63 of the 2019 Act is being made is in England, Wales or Northern Ireland.

• (2) Any order under that section made as a result of that application may, in addition to doing anything permitted to be done in the order by virtue of that section, require any person in England, Wales or Northern Ireland in a position to do so to produce the child to a constable.

• (3) Paragraphs (4) and (5) apply where—

• (a) an order under section 63 of the 2019 Act has been made in respect of a child, and

• (b) the child is in England, Wales or Northern Ireland.

• (4) A constable may, for the purposes of the order and subject to paragraph (7), take any action which a Scottish constable would be entitled to take for those purposes if the child was in Scotland.

• (5) Where the order authorises the taking of an intimate sample from the child, the sample may be taken from the child—

• (a) where the sample is a dental impression, only by a registered dentist,

• (b) in any other case, only by—

• (i) a registered medical practitioner, or

• (ii) a registered nurse.

• (6) Paragraph (7) applies where—

• (a) relevant physical data or a relevant sample is taken from a child under paragraph (4) by a constable other than a Scottish constable,

• (b) an intimate sample is taken from a child under paragraph (5).

• (7) The data or, as the case may be, sample must be transferred, as soon as possible after the data or sample is taken, to—

• (a) a Scottish constable, or

• (b) a person specified by a Scottish constable.

• (8) Except where section 64 of the 2019 Act has already been complied with, a constable who intends to carry out an action of the type mentioned in paragraph (4) in England, Wales or Northern Ireland must, before doing so—

• (a) provide a copy of the order to—

• (i) the child, and

• (ii) in so far as practicable, a parent of the child, and

• (b) at the same time, explain the order to the child in a way that is appropriate to the child’s age and maturity.

Taking of prints and samples from child: urgent cases

13

• (1) A constable may, subject to paragraph (2), take relevant physical data or a relevant sample from a child who is in England, Wales or Northern Ireland if authorised to do so by a relevant senior officer under section 69(2) of the 2019 Act.

• (2) Intimate samples may not be taken from a child under paragraph (1).

• (3) A constable may, for the purpose of taking relevant physical data or a relevant sample from a child under paragraph (1), take any action which a Scottish constable would be entitled to take for the purpose of taking, under section 69 of the 2019 Act, relevant data or a relevant sample from a child who is in Scotland.

• (4) Where relevant physical data or a relevant sample is taken from a child under paragraph (1) by a constable other than a Scottish constable, the data or sample must be transferred, as soon as possible after the data or sample is taken, to—

• (a) a Scottish constable, or

• (b) a person specified by a Scottish constable.

• (5) No other steps may be taken in relation to the relevant physical data or relevant sample (other than holding and preserving the data or sample) unless and until an order under section 63 of the 2019 Act authorising the taking of the data or sample is obtained.

• (6) An application for an order under section 63 of the 2019 Act authorising the taking of the relevant physical data or relevant sample must be made before the end of the period of 7 days beginning with the day on which the data or sample was taken.

• (7) Such an application must, in addition to the matters mentioned in section 61(2) of the 2019 Act, specify the data or sample taken under this article.

• (8) The relevant senior officer who authorised the taking of the relevant physical data or relevant samples under section 69(2) of the 2019 Act must ensure that all record of any data taken and all samples taken are destroyed as soon as possible after the earliest of the following events—

• (a) a decision by the responsible Scottish constable not to apply for an order under section 63,

• (b) the end of the period mentioned in paragraph (6), no application having been made,

• (c) where such an application is made but the sheriff refuses the application—

• (i) the end of the period for an appeal against the sheriff’s decision, no appeal having been taken, or

• (ii) if an appeal is taken and the sheriff’s decision is upheld, the conclusion of the appeal.

• (9) In this article—

• a “relevant senior officer” is (regardless of which of the police forces mentioned in article 9(1) the constable acting under paragraph (1) is a constable of) a Scottish constable— of the rank of superintendent or above, who has not been involved in the investigation in connection with which the taking of the relevant physical data or relevant sample is sought,

• “the responsible Scottish constable” is the Scottish constable— who took the relevant physical data or relevant sample under paragraph (1), to whom the data or sample was transferred under paragraph (4)(a), or, as the case may be, who specified the person to whom the data or sample was transferred under paragraph (4)(b).

Destruction of prints and samples

14

• (1) This article applies where an order made under section 63 of the 2019 Act authorises the taking of any relevant physical data or a relevant sample from a child, including where—

• (a) the data or sample is then taken by virtue of article 12(4), or

• (b) the order is made following the making of an application in accordance with section 70(3) of the 2019 Act or article 13(6) (the data or sample having been taken by virtue of section 69 of that Act or, as the case may be, article 13(1)).

• (2) Paragraph (3) applies where—