Office of Public Sector Information
(1) The amendments made to sections 113 (criminal record certificates) and 115 (enhanced criminal record certificates) of the Police Act 1997 (c. 50) (“the 1997 Act”) by—
(a) section 8 of the Protection of Children Act 1999 (c. 14);
(b) sections 102 and 104 of, and paragraph 25 of Schedule 4 to, the Care Standards Act 2000 (c. 14); and
(c) paragraphs 13 to 15 of Schedule 12, paragraph 7 of Schedule 13 and paragraphs 72 and 73 of Schedule 21 to the Education Act 2002 (c. 32),
extend, in so far as they do not already do so, to Scotland.
(2) Those sections of the 1997 Act are further amended as follows—
(a) in subsection (3A)(a) of section 113, after sub-paragraph (i) there is inserted—
“(ia) the list kept under section 1(1) of the Protection of Children (Scotland) Act 2003 (asp 5);”;
(b) in subsection (3B) of that section, after paragraph (a) there is inserted—
“(aa) a child care position within the meaning of the Protection of Children (Scotland) Act 2003 (asp 5);”;
(c) in subsection (3E) of that section—
(i) after “to”, where it first occurs, there is inserted “considering the applicant's”;
(ii) after “to”, where it fourth occurs, there is inserted “—
(a) considering the applicant's”;
(iii) paragraphs (a), (b) and (c) are renumbered as sub-paragraphs (i), (ii) and (iv) respectively;
(iv) the word “or”, at the end of sub-paragraph (ii) (as re-numbered above) is repealed;
(v) after that sub-paragraph there is inserted—
“(iii) under Part 3 of the Regulation of Care (Scotland) Act 2001 (asp 8) (social workers); or”; and
(vi) at the end, there is inserted; and
“(b) considering the applicant’s application to have a care service, consisting of the provision of child minding or the day care of children, registered under Part 1 of the Regulation of Care (Scotland) Act 2001 (asp 8) (care services)”; and
(d) in subsection (6A)(a) of section 115, after sub-paragraph (i) there is inserted—
“(ia) the list kept under section 1(1) of the Protection of Children (Scotland) Act 2003 (asp 5);”.
(3) The Scottish Ministers may by order modify sections 113(3A)(a) and 115(6A)(a) of the 1997 Act by adding to each of them provision which describes any list kept under the law of Northern Ireland, the Channel Islands, the Isle of Man, any British overseas territory or any other territory or country outwith the United Kingdom which, in the opinion of the Scottish Ministers, corresponds to any of the lists mentioned in paragraphs (a), (b), (ba) and (ca) of section 17(1) below.
In section 6 (register of teachers) of the Teaching Council (Scotland) Act 1965 (c. 19), after subsection (2B) there is inserted—
“(2C) A person shall not be entitled to be registered if he is included (otherwise than provisionally) in the list kept under section 1(1) of the Protection of Children (Scotland) Act 2003 (asp 5).
(2D) Any person who is registered and is, at any time after being registered, included (otherwise than provisionally) in that list shall be removed from the register.”.
(1) An individual who is included in the list kept under section 1(1) above may, with the leave of the sheriff, apply to the sheriff for a determination as to whether or not the individual should continue to be included in the list.
(2) On an application under subsection (1) above, the sheriff, if satisfied that the individual is not unsuitable to work with children, shall by order direct the removal of the individual from the list; otherwise the sheriff shall dismiss the application.
(3) An application for leave to make an application under subsection (1) above may not be made unless—
(a) subject to subsection (7)(a) below, the condition set out in subsection (4) below is fulfilled; and
(b) the individual has made no other such application for leave—
(i) in the period of ten (or, in the case of an individual who was a child at the relevant time, five) years ending with the date on which the individual makes the application for leave; or, as the case may be
(ii) in any other period specified in an order made under section 15(8) below.
(4) That condition is—
(a) in the case of an individual included in the list under section 10(7) above, that—
(i) at least ten (or, in the case of an individual who was a child at the relevant time, five) years have elapsed since the day on which the individual was so included; and
(ii) in the case of an individual—
(A) whose sentence is a term of imprisonment or a term of detention; or
(B) detained in a hospital pursuant to an order of the court,
the individual has been released or, as the case may be, ceases to be liable to be detained in the hospital; and
(b) in the case of any other individual, that the individual has been included (otherwise than provisionally) in the list for a continuous period of at least ten (or, in the case of an individual who was a child at the relevant time, five) years.
(5) For the purposes of subsections (3) and (4) above, the “relevant time” is—
(a) the time at which the offence in relation to which the individual was referred, under section 10(1) above, to the Scottish Ministers was committed; or, as the case may be
(b) the time at which the individual is considered by the person—
(i) who referred the individual, under section 2(1) or 4(1) above, to the Scottish Ministers; or, as the case may be
(ii) who held the inquiry in respect of which the individual was included, under section 6 above, in the list,
to have harmed a child or placed a child at risk of harm.
(6) Where—
(a) an individual is released on licence under Part I (detention, transfer and release of prisoners) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9); or
(b) a supervised release order is, in relation to the release of an individual, granted under section 209 (supervised release orders) of the Criminal Procedure (Scotland) Act 1995 (c. 46),
the individual is, for the purposes of subsection (4)(a)(ii) above, to be treated as being released on the day on which the licence expires (otherwise than by being revoked) or, as the case may be, the order expires.
(7) The sheriff may—
(a) on being satisfied as to the matters set out in subsection (8) below, consider an application for leave to make an application under subsection (1) above despite the fact that it does not fulfil one or both of the conditions set out in subsection (3) above;
(b) grant such an application for leave only if the sheriff is satisfied as to those matters.
(8) Those matters are—
(a) that the individual’s circumstances have changed since the individual was included (otherwise than provisionally) in the list, or, as the case may be, since the individual last made such an application for leave; and
(b) that the change is such that the application should be considered or, as the case may be, leave should be granted.
(1) An individual who is included (otherwise than provisionally) in the list kept under section 1(1) above may appeal to the sheriff against a determination, under section 5 or 6 above, of the Scottish Ministers to include the individual in the list.
(2) An appeal under subsection (1) above may not be lodged later than three months after the date on which the Scottish Ministers made the determination or decision being appealed unless the sheriff, on cause shown, so allows.
(3) The sheriff, unless satisfied—
(a) that the individual has harmed a child or placed a child at risk of harm; and
(b) that the individual is unsuitable to work with children,
shall allow an appeal under subsection (1) above and direct the removal of the individual from the list; otherwise the sheriff shall dismiss the appeal.
(4) A party to an appeal under subsection (1) above may appeal to the sheriff principal against any decision of the sheriff to allow or dismiss the appeal.
(5) An appeal may be made by—
(a) an individual who has made an application under section 14(1) above; or
(b) the Scottish Ministers,
to the sheriff principal against the decision of the sheriff on the application.
(6) An appeal may, with the leave of the sheriff principal, be made by—
(a) the individual who is included in the list kept under section 1(1) above; or
(b) the Scottish Ministers,
to the Inner House of the Court of Session against any decision of the sheriff principal to allow or dismiss an appeal under subsection (4) or (5) above.
(7) The decision of—
(a) the sheriff principal; or
(b) if leave is granted to appeal to the Inner House, that House,
on any appeal shall be final.
(8) In allowing or dismissing an appeal, under subsection (6) above, of the decision of a sheriff principal on an appeal under subsection (5) above, the Inner House may by order specify a period other than the period specified in section 14(3)(b) above as the period during which the individual may not make an application to the sheriff for leave to make a further application for an order under section 14(2) above.
(9) Where an individual has been convicted of an offence involving conduct (whether or not in the course of the individual’s work) which harmed a child or placed a child at risk of harm, no finding of fact on which the conviction is based may be challenged on an appeal under subsection (1) or (4) above.
(1) The Criminal Procedure (Scotland) Act 1995 (c. 46) is amended as follows.
(2) In section 106(1) (right of appeal in solemn proceedings)—
(a) after paragraph (da), there is inserted—
“(db) against any reference proposed under section 10(1) of the Protection of Children (Scotland) Act 2003 (asp 5) in respect of the conviction;
(dc) against such reference and, subject to subsection (2) below, such sentence, disposal or order or any order deferring sentence;”;
(b) in paragraph (f), the words after “against” become sub-paragraph (i); and
(c) at the end of that paragraph there is inserted—
“(ii) both such a conviction and such a reference; or
(iii) such a conviction, such a reference and, subject to subsection (2) below, such sentence, disposal or order.”.
(3) In section 116 (abandonment of appeal in solemn proceedings), for subsection (2) there is substituted—
“(2) A person who has appealed under section 116(1)(dc) or (f) of this Act may abandon the appeal in so far as it is against conviction, reference or sentence, decision, disposal or order and may proceed with it against—
(a) both reference and sentence, decision, disposal or order; or
(b) reference alone; or, as the case may be
(c) sentence, decision, disposal or order alone.”.
(4) In section 118 (disposal of appeals in solemn proceedings)—
(a) after subsection (4), there is inserted—
“(4AA) The High Court may dispose of an appeal against a reference proposed under subsection (1) of section 10 of the Protection of Children (Scotland) Act 2003 (asp 5)—
(a) by dismissing the appeal and affirming such reference; or
(b) if it thinks—
(i) in a case to which subsection (3) of that section applies, that the court which is proposing to make the reference should not have been satisfied as to the condition mentioned in that subsection;
(ii) in a case to which subsection (4) of that section applies, that the court which is proposing to make the reference should have been satisfied as to the condition mentioned in that subsection,
by directing the court not to make the reference.”;
(b) in subsection (7), the words after “on” become paragraph (a); and
(c) at the end of that subsection there is inserted “; or, as the case may be,
(b) whether a reference is appropriate in any similar case.”.
(5) In section 121A(1) (suspension of certain sentences pending appeal), after “(e)” there is inserted “(other than an appeal under section 106(1)(db) or (dc))”.
(6) In section 173(2) (quorum of High Court for appeals in summary proceedings), after “(c)” there is inserted “or (cb)”.
(7) In section 175 (right of appeal in summary proceedings)—
(a) the word “or” which precedes paragraph (ca) of subsection (2) is repealed;
(b) after that paragraph, there is inserted—
“(cb) against any reference proposed under section 10(1) of the Protection of Children (Scotland) Act 2003 (asp 5) in respect of the conviction or, as the case may be, against such reference and such sentence, disposal or order; or”;
(c) in paragraph (d) of that subsection, the words after “against” become sub-paragraph (i);
(d) at the end of that paragraph there is inserted—
“(ii) both such a conviction and such a reference; or
(iii) such a conviction, such a reference and such sentence, disposal or order.”;
(e) in subsection (8), for the words from “against”, where first occurring, to “alone,” there is substituted “under subsection (2)(cb) or (d) above may abandon the appeal in so far as it is against conviction, reference or sentence and may proceed with it against—
(a) both reference and sentence; or
(b) reference alone; or, as the case may be
(c) sentence alone,”; and
(f) in subsection (9), after “(c)” there is inserted “or (cb)”.
(8) In section 186 (appeals against sentence in summary proceedings), after “(c)”, where it appears in subsections (1), (2), (9) and (10), there is in each case inserted “or (cb)”.
(9) In section 187(1) (leave to appeal in summary proceedings), after “(c)” there is inserted “or (cb)”.
(10) In section 189 (disposal of appeals in summary proceedings)—
(a) after subsection (2), there is inserted—
“(2A) The High Court may dispose of an appeal against a reference proposed under subsection (1) of section 10 of the Protection of Children (Scotland) Act 2003 (asp 5) by—
(a) dismissing the appeal and affirming such reference; or
(b) if it thinks—
(i) in a case to which subsection (3) of that section applies, that the court which is proposing to make the reference should not have been satisfied as to the condition mentioned in that subsection;
(ii) in a case to which subsection (4) of that section applies, that the court which is proposing to make the reference should have been satisfied as to the condition mentioned in that subsection,
by directing the court not to make the reference.”;
(b) in subsection (7), the words after “on” become paragraph (a); and
(c) at the end of that subsection there is inserted “; or, as the case may be,
(b) whether a reference is appropriate in any similar case.”.
(11) In section 193A(1) (suspension of certain sentences pending appeal), after “Act” there is inserted “(other than by way of an appeal under section 175(2)(cb) of this Act against a reference only)”.
(1) References in this Act to being disqualified from working with children are to be treated as references to being—
(a) included (otherwise than provisionally) in the list kept under section 1(1) above;
(b) included (otherwise than provisionally) in the list kept under section 1 (duty of Secretary of State to keep list of individuals considered unsuitable to work with children) of the Protection of Children Act 1999 (c. 14);
(c) subject to a direction under subsection (1)(a) of section 142 (prohibition from teaching etc.) of the Education Act 2002 (c. 32), given on the grounds mentioned in subsection (4)(b) of that section, not to carry on work to which that section applies;
(d) subject to a disqualification order (within the meaning of Part II (protection of children) of the Criminal Justice and Court Services Act 2000 (c. 43)); or
(e) an individual falling within subsection (2) below.
(2) An individual falls within this subsection if, under the law of Northern Ireland, the Channel Islands, the Isle of Man, any British overseas territory or any other territory or country outwith the United Kingdom, the individual is subject to a prohibition or disqualification which the Scottish Ministers by order provide corresponds to disqualification (by virtue of any of paragraphs (a) to (d) of subsection (1) above) from working with children.
(1) In this Act—
“the 2001 Act” means the Regulation of Care (Scotland) Act 2001 (asp 8);
“agency for the supply of nurses” has the meaning given by section 32 of the Nurses (Scotland) Act 1951 (c. 55);
“child” means a person under the age of 18;
“child care position” has the meaning given by schedule 2 to this Act;
“disciplinary proceedings” means proceedings in which the regulatory body for a profession is to decide whether disciplinary action should be taken against an individual carrying on that profession;
“disqualified from working with children” is to be construed in accordance with section 17 above;
“employment agency” and “employment business” have the same meanings as in the Employment Agencies Act 1973 (c. 35);
“harm” includes harm which is not physical harm;
“legal proceedings” means civil or criminal proceedings in or before any court or tribunal;
“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);
“managers of an educational establishment” has the same meaning as in the Education (Scotland) Act 1980 (c. 44);
“organisation” means—
a body corporate or unincorporate;
an individual who, in the course of a business, employs or otherwise gives work to other persons;
the managers of an educational establishment;
“prescribed” means prescribed by regulations made by the Scottish Ministers;
“term of detention” means a term of detention—
in a young offenders institution; or
by virtue of section 208 of the Criminal Procedure (Scotland) 1995 Act (c.46), in some other place;
“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;
an office established by or by virtue of a prescribed enactment, and
caring for, or supervising, children whilst participating in any other organised activity,
and references to an individual “working” are to be construed accordingly.
(2) For the purposes of this Act, an individual is made redundant if—
(a) the individual is dismissed; and
(b) for the purposes of the Employment Rights Act 1996 (c. 18) the dismissal is by reason of redundancy.
(1) A notice required by section 5(6)(a), 6(5)(a), 7(3)(a) or 10(8)(a) above to be given by the Scottish Ministers to an individual may be given—
(a) by delivering it to the individual,
(b) by leaving it at the individual’s proper address, or
(c) by sending it to the individual at that address.
(2) For the purposes of subsection (1) above and of paragraph 4 of Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (S.I.1999/1379), a person’s proper address is that person’s last known address.
(1) Where an offence under this Act committed—
(a) by a body corporate other than a local authority, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—
(i) is a director, manager or secretary of the body corporate; or
(ii) purports to act in any such capacity;
(b) by a local authority, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—
(i) is an officer or member of the authority; or
(ii) purports to act in any such capacity;
(c) by a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—
(i) is a partner; or
(ii) purports to act in that capacity;
(d) by an unincorporated association other than a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who—
(i) is concerned in the management or control of the association; or
(ii) purports to act in the capacity of a person so concerned;
the individual (as well as the body corporate or, as the case may be, the local authority, Scottish partnership or unincorporated association) is guilty of the offence and is liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) above applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.
(1) Any power of the Scottish Ministers under this Act to make an order or regulations is exercisable by statutory instrument.
(2) Any such power includes power to make—
(a) different provision for different cases and for different classes of case; and
(b) such incidental, supplementary, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient.
(3) Subject to subsection (4) below, a statutory instrument containing an order (other than an order made under section 22(2) below) or regulations made under this Act is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(4) A statutory instrument containing an order made under section 10(10) or 12(3) above or paragraph 13 of schedule 2 to this Act shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the Scottish Parliament.
(1) This Act may be cited as the Protection of Children (Scotland) Act 2003.
(2) This Act (except this section and section 21 above) comes into force on such day as the Scottish Ministers may by order appoint.
(3) An order under subsection (2) above may appoint different days for different purposes.
Protection of Children (Scotland) Act 2003