Duty to keep list

1 Duty of Scottish Ministers to keep list

(1) The Scottish Ministers shall keep a list of individuals whom they consider to be unsuitable to work with children.

(2) An individual may be included in the list only in accordance with section 5, 6 or 10 below.

(3) The Scottish Ministers may at any time remove an individual from the list if they are satisfied that the individual should not have been included in it.

Referrals

2 Reference following disciplinary action etc.

(1) An organisation shall refer to the Scottish Ministers the case of an individual who is or has been working in a child care position if—

(a) any of the circumstances mentioned in subsection (3) below; or

(b) the circumstance mentioned in subsection (4) below,

has arisen.

(2) An organisation which fails to comply with the duty imposed by subsection (1) above is, subject to subsection (5) below, guilty of an offence and liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;

(b) on a conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

(3) The circumstances referred to in subsection (1)(a) above are—

(a) that the organisation has dismissed the individual on the ground that the individual has (whether or not in the course of the individual’s work) harmed a child or placed a child at risk of harm;

(b) that the individual has resigned, retired or been made redundant in circumstances such that the organisation would have dismissed the individual, or would have considered dismissing the individual, on such ground if the individual had not resigned, retired or been made redundant;

(c) that the organisation has, on such ground, transferred the individual to a position within the organisation which is not a child care position;

(d) that the individual is, or was, employed by the organisation for a fixed term and the organisation has formed the opinion that—

(i) if the individual’s employment was not due to expire at the end of the fixed term, the organisation would dismiss the individual, or would consider dismissing the individual, on such ground; or

(ii) if the individual’s employment has expired at the end of the fixed term, the organisation, if the individual were still employed by the organisation, would have dismissed the individual, or would have considered dismissing the individual, on such ground.

(4) The circumstance referred to in subsection (1)(b) above is that—

(a) the individual has, in circumstances not falling within subsection (3) above—

(i) been dismissed by the organisation;

(ii) resigned, retired or been made redundant; or

(iii) been transferred by the organisation to a position within the organisation which is not a child care position;

(b) information not available to the organisation at the time of the dismissal, resignation, retirement, redundancy or transfer has since become available; and

(c) the organisation has formed the opinion that, if that information had been available at that time and if (where applicable) the individual had not resigned, retired or been made redundant, the organisation would have dismissed the individual, or would have considered dismissing the individual, on such ground as is mentioned in subsection (3)(a) above.

(5) An organisation may (but, despite subsection (1) above, need not) refer the case of an individual to the Scottish Ministers under this section where the dismissal, resignation, retirement, redundancy, transfer or suspension took place or, as the case may be, the organisation’s opinion was formed before the date on which this section comes into force.

3 Reference by employment agency etc.

(1) Section 2 above has effect in relation to an organisation which carries on an employment agency or an agency for the supply of nurses as if—

(a) in subsection (1), for “shall” there were substituted “may”;

(b) for paragraphs (a) and (b) of subsection (1) and the words “has arisen” which follow those paragraphs there were substituted—

“(a) the organisation has decided not to do any further business with the individual on the ground that the individual has (whether or not in the course of the individual’s work) harmed a child or placed a child at risk of harm; or

(b) the organisation has decided on such ground not to find the individual further work, or to offer or supply the individual for further work, in a child care position.”; and

(c) subsections (2), (3) and (4) were omitted.

(2) Section 2 above has effect in relation to an organisation which carries on an employment business as if—

(a) in subsection (1)—

(i) for “is or has been working” there were substituted “has been offered or supplied by the organisation for work”; and

(ii) paragraph (b) and the word “or” preceding it were omitted;

(b) for paragraphs (c) and (d) of subsection (3) there were substituted—

“(c) that the organisation has, on such ground, decided not to offer or supply the individual for further work in a child care position.”; and

(c) subsection (4) were omitted.

4 Reference by certain other persons

(1) A person to whom this section applies may refer to the Scottish Ministers the case of an individual who is or has been working in a child care position if—

(a) on the basis of evidence obtained by the person in the exercise of relevant functions, the person considers that the individual has (whether or not in the course of the individual’s work and whether before or after this section comes into force) harmed a child or placed a child at risk of harm; and

(b) that case has not been referred to the Scottish Ministers under section 2 above in respect of the act which harmed a child or placed a child at risk of harm.

(2) This section applies to—

(a) the Scottish Commission for the Regulation of Care;

(b) the Scottish Social Services Council;

(c) the General Teaching Council for Scotland; and

(d) any other person specified for the purposes of this section in an order made by the Scottish Ministers.

(3) For the purposes of subsection (1)(a) above, “relevant functions” means—

(a) in relation to the Scottish Commission for the Regulation of Care and the Scottish Social Services Council, such functions as are conferred on the Commission or, as the case may be, the Council by the 2001 Act or any other enactment;

(b) in relation to the General Teaching Council for Scotland, such functions as are conferred on it by or under the Teaching Council (Scotland) Act 1965 (c. 19); and

(c) in relation to a person specified in an order made under subsection (2)(d) above, such functions as are specified for the purposes of this section by the order.

Inclusion in list

5 Inclusion in list following referral under section 2(1) or 4(1)

(1) The Scottish Ministers, on being satisfied as to the matters set out in subsection (2) below in relation to a reference to them under section 2(1) or 4(1) above, shall proceed in accordance with subsections (3) to (6) below.

(2) Those matters are—

(a) that the reference is not vexatious or frivolous; and

(b) that the information submitted to the Scottish Ministers with the reference indicates that it may be appropriate for an individual to be included in the list kept under section 1(1) above.

(3) The Scottish Ministers shall—

(a) invite observations from the individual—

(i) on the information submitted with the reference; and

(ii) if the Scottish Ministers think fit, on any observations made in response to an invitation under paragraph (b) below; and

(b) invite observations from the organisation which, or person who, made the reference—

(i) on any observations made by the individual on the information submitted with the reference; and

(ii) if the Scottish Ministers think fit, on any other observations made in response to an invitation under paragraph (a) above.

(4) The Scottish Ministers, having considered the information submitted with the reference, any observations submitted to them and any other information which they consider relevant, shall—

(a) where they are satisfied as to the matters set out in subsection (5) below, include the individual in the list by—

(i) where the individual is provisionally included under section 7(1) below in the list, amending the list so as to indicate that the individual’s inclusion is no longer provisional; or

(ii) where the individual has been removed under section 7(4) below from the list, restoring the individual to the list; or

(b) where they are not so satisfied, remove or, as the case may be, confirm the removal of the individual from the list.

(5) Those matters are—

(a) that the organisation which, or person who, made the reference reasonably considered the individual to have (whether or not in the course of the individual’s work) harmed a child or placed a child at risk of harm; and

(b) that the individual is unsuitable to work with children.

(6) Where the Scottish Ministers have made a determination under subsection (4)(a) above they shall—

(a) provide the individual in respect of whom the determination is made with notice specifying whether the individual is to be included in the list; and

(b) if they are aware that the individual is working in a child care position for an organisation at the time of the determination, provide the organisation with such notice.

6 Individuals named in the findings of certain inquiries

(1) Where—

(a) a relevant inquiry has been held;

(b) the report of the person who held the inquiry names an individual who is or has been working in a child care position; and

(c) it appears to the Scottish Ministers from the report—

(i) that the person who held the inquiry found that the individual has, at a time when the individual was working in a child care position (whether or not in the course of the individual’s work and whether before or after this section comes into force), harmed a child or placed a child at risk of harm; and

(ii) that the individual is unsuitable to work with children,

the Scottish Ministers may proceed in accordance with subsections (2) to (4) below in order to determine whether the individual should be included in the list kept under section 1(1) above.

(2) The Scottish Ministers shall—

(a) invite observations from the individual—

(i) on the report, so far as relating to the individual; and

(ii) if the Scottish Ministers think fit, on any observations submitted under paragraph (b) below; and

(b) invite observations from the person for whom the individual, at the time of the act or omission which gave rise to the finding that the individual harmed a child or placed a child at risk of harm, worked—

(i) on any observations made by the individual on the report; and

(ii) if the Scottish Ministers think fit, on any other observations made in response to the invitation under paragraph (a) above.

(3) The Scottish Ministers, having considered the report, any observations submitted to them and any other information which they consider relevant, shall—

(a) where they are satisfied as to the matters set out in subsection (4) below, include the individual in the list by—

(i) where the individual is provisionally included under section 7(1) below in the list, amending the list so as to indicate that the individual’s inclusion is no longer provisional; or

(ii) where the individual has been removed under section 7(4) below from the list, restoring the individual to the list; or

(b) where they are not so satisfied, remove or, as the case may be, confirm the removal of the individual from the list.

(4) Those matters are—

(a) that the person who held the inquiry reasonably considered that the individual has, at a time when the individual was working in a child care position (whether or not in the course of the individual’s work), harmed a child or placed a child at risk of harm; and

(b) that the individual is unsuitable to work with children.

(5) Where the Scottish Ministers have made a determination under subsection (3)(a) above they shall—

(a) provide the individual in respect of whom the determination is made with notice specifying whether the individual is to be included in the list; and

(b) if they are aware that the individual is working in a child care position for an organisation at the time of the determination, provide the organisation with such notice.

(6) In this section “relevant inquiry” means any of the following—

(a) an inquiry held—

(i) by the Scottish Ministers;

(ii) by the Scottish Parliament (including an inquiry held by a committee or sub-committee of the Parliament);

(b) an inquiry held by a tribunal appointed under the Tribunals of Inquiry (Evidence) Act 1921 (c. 7);

(c) any other inquiry or hearing designated for the purposes of this section by an order made by the Scottish Ministers.

7 Provisional inclusion in list

(1) Where the Scottish Ministers—

(a) are to determine, under section 5(4) above, a reference under section 2(1) or 4(1) above; or

(b) decide to make a determination under section 6 above,

they shall provisionally include the individual in respect of whom the determination is to be made in the list kept under section 1(1) above.

(2) The list shall indicate whether an individual’s inclusion in it is provisional upon such a determination.

(3) The Scottish Ministers shall—

(a) provide an individual who is provisionally included in the list with notice of that fact; and

(b) if they are aware that the individual is working in a child care position for an organisation at the time when the individual is provisionally included in the list, provide the organisation with such notice.

(4) If the Scottish Ministers have not made a determination under section 5 or 6 above within the relevant period they shall remove the individual from the list pending their determination.

(5) The “relevant period” is—

(a) where the circumstance or, as the case may be, act in respect of which a reference under section 2(1) or 4(1) above is made is the subject of legal or disciplinary proceedings, the period of six months which begins on the date on which the proceedings are finally determined;

(b) in any other case, the period of six months which begins on the date on which the individual is provisionally included in the list; or

(c) where either of the periods mentioned in paragraphs (a) and (b) above is extended under subsection (6) below, the extended period.

(6) The sheriff may, on an application by the Scottish Ministers and on cause shown, extend the period mentioned in paragraph (a) or (b) of subsection (5) above by such period of up to six months as the sheriff may specify.

(7) For the purposes of subsection (5)(a) above, proceedings are finally determined when—

(a) the proceedings are terminated without a decision being made;

(b) a decision is made against which no appeal (other than an appeal which need not be timeous) lies;

(c) in a case where an appeal lies with leave against a decision, the time limit for applications for leave expires without leave being granted; or

(d) in a case where leave to appeal against a decision is granted or is not required, the time limit for appeal expires without an appeal being brought.

(8) For the purposes of subsection (7) above, an appeal which need not be timeous is—

(a) an appeal under Part VIII (appeals from solemn proceedings) of the Criminal Procedure (Scotland) Act 1995 (c. 46) in relation to which the High Court must, if the appeal is to be competent, extend the time within which intimation of intention to appeal or note of appeal or both may be given; or

(b) an appeal under section 191 (appeal by suspension on ground of miscarriage of justice) of that Act.

8 Determination under section 5 or 6: power to regulate procedure

(1) The Scottish Ministers may, by regulations, make such further provision as to the procedure which is to apply in relation to a determination under section 5 or 6 above as they think fit.

(2) The regulations may, in particular, make provision in relation to—

(a) the procedure to be followed by the Scottish Ministers before making their determination; and

(b) the procedure to be followed by an individual, organisation or other person invited, under section 5(3) or 6(2) above, to make observations.

9 Protection from actions of defamation

It is declared for the purposes of the law of defamation that—

(a) any information submitted with a reference under section 2(1) or 4(1) above;

(b) any observation made in response to an invitation given under section 5(3) or 6(2) above,

is privileged unless it is shown to have been submitted or, as the case may be, made with malice.

10 Individuals convicted of an offence against a child

(1) Subject to subsections (3) and (4) below, on convicting an individual of an offence against a child the court—

(a) where the offence is a relevant offence, shall; or

(b) where the offence is not a relevant offence, may (if it thinks fit),

propose to refer the case of the individual to the Scottish Ministers.

(2) Subsection (1) above applies in relation to offences committed before and after this section comes into force.

(3) Where an individual convicted of an offence against a child was under 18 years of age when the offence was committed, the court may propose to refer the case only if it is satisfied that the individual is likely to commit a further offence against a child.

(4) Where an individual convicted of an offence against a child was 18 years of age or over when the offence was committed, the court shall not propose to refer the case if it is satisfied that the individual is unlikely to commit a further offence against a child.

(5) The court shall, subject to subsection (6) below, make the proposed reference to the Scottish Ministers.

(6) The court shall not make the proposed reference unless—

(a) the time limit for applications for leave to appeal against the proposed reference expires without leave being granted; or

(b) in a case where leave to appeal against a proposed reference is granted, the appeal is dismissed or abandoned.

(7) The Scottish Ministers shall include an individual referred to them under subsection (5) above in the list kept under section 1(1) above.

(8) On so including an individual in the list the Scottish Ministers shall—

(a) provide the individual who is so included with notice of that fact; and

(b) if they are aware that the individual is working in a child care position for an organisation at the time of the determination, provide the organisation with such notice.

(9) For the purposes of this section—

(a) an individual commits a relevant offence if the individual—

(i) commits any offence mentioned in paragraph 1 of schedule 1 to this Act; or

(ii) falls within paragraph 2 of that schedule; and

(b) an individual commits an offence against a child if the individual—

(i) commits a relevant offence;

(ii) commits any other offence in respect of which the person in relation to whom the offence was committed was a child,

and references to being convicted of, or charged with, a relevant offence or, as the case may be, an offence against a child are to be read accordingly.

(10) The Scottish Ministers may by order amend subsection (9)(b) above or schedule 1 to this Act so as to modify, for the purposes of this section, the meaning of “offence against a child” or “relevant offence” by—

(a) adding offences to or, as the case may be, removing them from those referred to in that subsection or, as the case may be, schedule; or

(b) varying any of the descriptions of the offences there referred to.

(11) Subsection (12) below applies to an individual charged with an offence against a child—

(a) if—

(i) the individual is acquitted on the ground of insanity; or

(ii) the court, following an examination of facts under subsection (1) of section 55 (examination of facts) of the Criminal Procedure (Scotland) Act 1995 (c. 46), makes a finding under subsection (2) of that section in respect of the individual; and

(b) the court makes any order mentioned in section 57(2)(a) to (d) of that Act of 1995 in relation to the acquittal or finding.

(12) An individual to whom this subsection applies is—

(a) to be treated, for the purposes of this section, as having been convicted of the offence; and

(b) entitled to appeal, under section 106(1)(db) (right of appeal in solemn proceedings) or, as the case may be, 175(2)(cb) (right of appeal in summary proceedings) of that Act of 1995, against a reference made under subsection (1) above as if the individual had been convicted of the offence.

Effect of inclusion in list

11 Offences relating to work in a child care position

(1) It is an offence for an individual who is disqualified from working with children to apply for, offer to do, accept or do any work in a child care position.

(2) It is a defence for an individual charged with an offence under subsection (1) above to prove that the individual did not know, and could not reasonably be expected to have known, that the individual was, at the time of the offence, disqualified from working with children.

(3) It is an offence for an organisation to—

(a) offer work in a child care position to, or procure such work for, an individual who is disqualified from working with children; or

(b) fail to remove an individual who is so disqualified from such work.

(4) An organisation commits an offence under subsection (3) above if the organisation offers work in a child care position to, or procures work in a child care position for, an individual who is already working for the organisation.

(5) It is a defence for an organisation charged with an offence under subsection (3) above to prove that the organisation did not know, and could not reasonably be expected to have known, that the individual was, at the time of the offence, disqualified from working with children.

(6) An act which would, but for this subsection, be an offence under subsection (1) or (3) above is not an offence if—

(a) the individual who commits the act or, as the case may be, the individual in relation to whom the organisation commits the act, is disqualified from working with children by virtue only of paragraph (c) of section 17(1) below;

(b) that individual is, by virtue of subsection (1)(b) or (c) of section 142 (prohibition from teaching etc.) of the Education Act 2002 (c. 32), allowed to carry out work to which that section applies only—

(i) in circumstances specified in a direction under that section; or

(ii) if conditions specified in such a direction are satisfied; and

(c) the act relates to such work or to any other work in a child care position being carried out in such circumstances or, as the case may be, in satisfaction of such conditions.

(7) A person guilty of an offence under subsection (1) or (3) above is liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.