The Police Act 1997 (Criminal Records) (Scotland) Regulations 2006

Citation, commencement and extent

2.—(1) These Regulations may be cited as the Police Act 1997 (Criminal Records) (Scotland) Regulations 2006 and shall come into force on 1st April 2006.

(2) These Regulations extend to Scotland and, in so far as regulations 7 to 12, 16 and 17 extend beyond Scotland, they do so only as a matter of Scots law.

Interpretation

2.  In these Regulations–

(a) any reference to a numbered section or part is to the section or part bearing that number in the Police Act 1997;

(b) any reference to a numbered regulation is to the regulation bearing that number in these Regulations;

(c) any reference in a regulation to a numbered paragraph is to the paragraph bearing that number in that regulation; and

(d) any words or expressions used in these Regulations to which meanings are assigned by Part 5 of the Police Act 1997 shall have the same meanings as in that Part of that Act.

Application form

3.  The form set out in Schedule 2 to these Regulations, or a form to the like effect, is the prescribed form for the purposes of an application under sections 112 (criminal conviction certificates)(1), 113A (criminal record certificates)(2), 113B (enhanced criminal record certificates)(3), 114 (criminal record certificates: Crown employment)(4) and 116 (enhanced criminal record certificates: judicial appointments and Crown employment)(5).

Fees for criminal conviction certificates, criminal record certificates and enhanced criminal record certificates

4.—(1) The fee payable in relation to an application for the issue of a criminal conviction certificate, a criminal record certificate or an enhanced criminal record certificate is £20.

(2) The fee is payable by cheque, credit or debit card, voucher, postal order, direct debit or invoice.

Criminal conviction certificates: prescribed details

5.  The following details of a conviction for the purposes of section 112(2)(a) are prescribed:–

(a) the date of the conviction;

(b) the convicting court;

(c) the offence; and

(d) the method of disposal for the offence.

Relevant matters: prescribed details

6.  The following details of a relevant matter for the purposes of sections 113A(3)(a) and 113B(3)(a) (including those provisions as applied by sections 114(3) and 116(3) respectively) are prescribed:–

(a) in the case of a conviction within the meaning of the Rehabilitation of Offenders Act 1974(6), including a spent conviction–

(i) the date of the conviction;

(ii) the convicting court;

(iii) the offence; and

(iv) the method of disposal for the offence; and

(b) in the case of a caution–

(i) the date of the caution;

(ii) the place where the caution was given; and

(iii) the offence which the person given the caution had admitted.

Central records: prescribed details

7.—(1) Information in any form relating to convictions–

(a) held in the criminal history database of the Scottish Criminal Record Office for the use of police forces generally; and

(b) on a names index held by the Police Information Technology Organisation for the use of police forces generally,

is prescribed as “central records” for the purposes of section 112(3).

(2) Information in any form relating to–

(a) convictions held in the criminal history database of the Scottish Criminal Record Office for the use of police forces generally; and

(b) convictions and cautions on a names index held by the Police Information Technology Organisation for the use of police forces generally,

is prescribed as “central records” for the purposes of section 113A(6) (including that provision as it has effect for the purposes of section 113B(9) and as it is applied by sections 114(3) and 116(3)).

Enhanced criminal record certificates: relevant police forces

8.—(1) For the purposes of an application for an enhanced criminal record certificate, “relevant police force” means–

(a) the police force maintained for any police area in Great Britain–

(i) within which the applicant resides or has resided within the period of 5 years preceding the date of the application;

(ii) in which the applicant was born;

(iii) in which the applicant was convicted at any time; or

(iv) which has indicated on central records(7) or the Interim Police Local Cross Reference Database that it holds non-conviction information relating to the applicant;

(b) the Police Service of Northern Ireland if–

(i) the applicant resides or has resided within the period of 5 years preceding the date of the application within Northern Ireland;

(ii) the applicant was born in Northern Ireland; or

(iii) the applicant was convicted in Northern Ireland at any time;

(c) the Royal Navy Regulating Branch, the Royal Marines Police, the Royal Military Police or the Royal Air Force Police (together known as “the Service Police”), as the case may be, if–

(i) the applicant is serving or has served in any of the naval, military or air forces of the Crown, including reserve forces, over which the Service Police exercise jurisdiction;

(ii) the applicant resides or has resided in an establishment operated by any of those forces; or

(iii) any one of the Service Police has indicated on central records or the Interim Police Local Cross Reference Database that it holds non-conviction information relating to the applicant;

(d) the Ministry of Defence Police, the British Transport Police or the Civil Nuclear Constabulary (together known as “the specialist police forces”) if any one of the specialist police forces has indicated on central records or the Interim Police Local Cross Reference Database that it holds non-conviction information relating to the applicant;

(e) the States of Jersey Police Force if–

(i) the applicant resides or has resided within the period of 5 years preceding the date of the application on the Island of Jersey;

(ii) the applicant was born on the Island of Jersey;

(iii) the applicant was convicted on the Island of Jersey at any time; or

(iv) that Force has indicated on central records or the Interim Police Local Cross Reference Database that it holds non-conviction information relating to the applicant;

(f) the salaried police force of the Island of Guernsey if–

(i) the applicant resides or has resided within the period of 5 years preceding the date of the application on the Island of Guernsey;

(ii) the applicant was born on the Island of Guernsey;

(iii) the applicant was convicted on the Island of Guernsey at any time; or

(iv) that force has indicated on central records or the Interim Police Local Cross Reference Database that it holds non-conviction information relating to the applicant;

(g) the Isle of Man Constabulary if–

(i) the applicant resides or has resided within the period of 5 years preceding the date of the application on the Isle of Man;

(ii) the applicant was born on the Isle of Man;

(iii) the applicant was convicted on the Isle of Man at any time; or

(iv) that Constabulary has indicated on central records or the Interim Police Local Cross Reference Database that it holds non-conviction information relating to the applicant;

(h) the Serious Organised Crime Agency if the Agency has indicated on central records that it holds non-conviction information relating to the applicant;

(i) the Garda Síochána if–

(i) the applicant resides or has resided within the period of 5 years preceding the date of the application in the Republic of Ireland; or

(ii) the applicant was born in the Republic of Ireland; and

(j) such other police force as the chief officer of police of a police force identified as a relevant police force by virtue of paragraph (a) to (i) determines.

(2) In paragraph (1)(j), “police force” has the meaning given in section 126(1) as read with section 113B(10) and (11).

Enhanced criminal record certificates – prescribed purpose

9.  For the purposes of section 113B(2)(b), an enhanced criminal record certificate can be required for the purposes of an exempted question asked–

(a) in the course of considering the applicant’s suitability for a position (whether paid or unpaid) to which regulation 10 applies;

(b) for a purpose relating to any of the matters set out in regulation 11; or

(c) in relation to an individual to whom regulation 12 applies.

Enhanced criminal record certificates – suitability for positions

10.—(1) This regulation applies to work in a child care position, within the meaning of the Protection of Children (Scotland) Act 2003(8).

(2) This regulation applies to a position if it is of a kind which enables a person in the course of his or her duties to have contact with an adult at risk.

(3) In paragraph (2) “adult at risk” means a person aged 18 or over who in consequence of a condition of a type listed in paragraph (4) has a disability of a type listed in paragraph (5) and who is receiving services of a type listed in paragraph (6).

(4) The types of condition referred to in paragraph (3) are–

(a) a learning or physical disability;

(b) a physical or mental illness, chronic or otherwise, including addiction to alcohol or drugs; or

(c) a reduction in physical or mental capacity.

(5) The types of disability referred to in paragraph (3) are–

(a) a dependency upon others in the performance of, or a requirement for assistance in the performance of, basic physical functions;

(b) severe impairment in the ability to communicate with others; or

(c) impairment in the ability of a person to protect themselves from assault, abuse or neglect.

(6) The types of services referred to in paragraph (3) are–

(a) care home services;

(b) personal care or nursing or support to live independently at home;

(c) any services provided by an independent hospital, independent clinic, independent medical agency or health body;

(d) social care services; or

(e) any services provided in an establishment catering for a person with learning difficulties.

(7) In this regulation “care home services”, “independent clinic”, “independent hospital”, “independent medical agency” and “health body” have the same meanings as in the Regulation of Care (Scotland) Act 2001(9).

Enhanced criminal record certificates – matters

11.  The matters referred to in regulation 9(b) are–

(a) a certificate for the purposes of sections 19 or 27(1) or (5) of the Gaming Act 1968(10) (gaming);

(b) a certificate of consent, or a licence, for any purpose of Schedule 2 to that Act (licences);

(c) registration or certification in accordance with Schedule 1A, 2 or 2A to the Lotteries and Amusements Act 1976(11) (societies, schemes and lottery managers);

(d) a licence under section 5 or 6 of the National Lottery etc. Act 1993(12) (running or promoting lotteries);

(e) registration for child minding or providing day care under Part XA of the Children Act 1989(13) (child minding and day care for children in England and Wales) or registration under article 118 of the Children (Northern Ireland) Order 1996(14) (child minding and day care);

(f) registration under the Regulation of Care (Scotland) Act 2001(15) of a care service (as defined in section 2(1) of that Act);

(g) registration under Part 3 of that Act of a social worker or other social service worker (“social worker” and “social service worker” having the same meanings as in that Act);

(h) registration under Part II of the Care Standards Act 2000(16) (establishments and agencies);

(i) registration under Part IV of that Act (social care workers);

(j) registration under section 3 of the Teaching and Higher Education Act 1998(17) (registration of teachers with the General Teaching Council for Wales);

(k) the placing of children with foster parents in accordance with any provision of, or made by virtue of, the Children Act 1989, of the Children (Northern Ireland) Order 1995 or the exercise of any duty under or by virtue of section 67 of that Act or Article 108 of that Order (welfare of privately fostered children);

(l) the approval of any person as a foster carer by virtue of section 5(2), (3) and (4) of the Social Work (Scotland) Act 1968(18), the exercise by a local authority of their functions under the Foster Children (Scotland) Act 1984(19) or the placing of children with foster parents by virtue of section 70 of the Children (Scotland) Act 1995(20) (disposal of referral by children’s hearing);

(m) a licence under the Private Security Industry Act 2001(21) to engage in any such licensable conduct (within the meaning of that Act) as will or may involve, or relate to, activities to which paragraph 8 of Schedule 2 to that Act applies (door supervisors etc for public houses and clubs and compatible venues);

(n) a decision made by an adoption agency within the meaning of section 11 of the Adoption Act 1976(22) as to a person’s suitability to adopt a child;

(o) an assessment, investigation or review by an adoption agency or local authority as to the suitability of a person, whether or not the person in respect of whom the certificate is sought, to adopt a child (this paragraph being construed in accordance with sections 1(3A) and (4) and 65(1) of the Adoption (Scotland) Act 1978(23) and as if it were one of the provisions of that Act listed in the definition of “adoption agency” in the said section 65(1)).

Enhanced criminal record certificates – individuals

12.—(1) This regulation applies to individuals in the circumstances set out in paragraphs 2 to 8.

(2) An individual included or seeking inclusion in any list prepared for the purposes of Part II of the National Health Service (Scotland) Act 1978(24) of–

(a) dental practitioners undertaking to provide general dental services;

(b) medical practitioners and ophthalmic opticians undertaking to provide general ophthalmic services; or

(c) persons undertaking to provide pharmaceutical services.

(3) An individual who is–

(a) a director of a body corporate included or seeking inclusion in a list referred to in paragraph 2(b) or (c); or

(b) a partner of a partnership included or seeking inclusion in a list so referred to.

(4) An individual included or seeking inclusion in any list prepared by virtue of section 17P of the National Health Service (Scotland) Act 1978(25) (persons performing primary medical services).

(5) This paragraph applies to an individual appointed or seeking appointment–

(a) as one of Her Majesty’s inspectors (as defined by section 135(1) of the Education (Scotland) Act 1980(26)); or

(b) by the Scottish Ministers, for the purposes of section 66 of that Act of 1980 (inspection of educational establishments) or of section 9 of the Standards in Scotland’s Schools etc. Act 2000(27) (inspection of education authority).

(6) This paragraph applies to an individual appointed or seeking appointment–

(a) as the Principal Reporter or under section 128(5) of the Local Government etc. (Scotland) Act 1994(28) as an officer to assist that officer;

(b) as a prosecutor, as defined by section 307(1) of the Criminal Procedure (Scotland) Act 1995(29), or as an officer to assist a prosecutor or to assist in the work of the Crown Office; or

(c) in a panel established by virtue of section 101(1) of the Children (Scotland) Act 1995(30) (panels for curators ad litem, reporting officers and safeguarders).

(7) An individual seeking appointment as a member of an adoption panel under regulation 7 of the Adoption Agencies (Scotland) Regulations 1996(31).

(8) An individual seeking appointment as a panel member on a fostering panel under regulation 4 of the Fostering of Children (Scotland) Regulations 1996(32).

Children’s suitability statement – specified children’s lists and directions

13.—(1) For the purposes of section 113C(1)(b)(33), the following details of an applicant’s inclusion in the following specified children’s lists are prescribed:–

(a) in the list kept under section 1 of the Protection of Children Act 1999(34), the details are –

(i) whether any appeal against inclusion in the list is pending; and

(ii) whether inclusion in the list is provisional;

(b) in the list kept under section 1(1) of the Protection of Children (Scotland) Act 2003(35), the details are–

(i) whether any appeal against inclusion in the list is pending; and

(ii) whether inclusion in the list is provisional;

(c) in the list kept under Article 3 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003(36), the details are–

(i) whether any appeal against inclusion in the list is pending; and

(ii) whether inclusion in the list is provisional; and

(d) in any list kept for the purposes of regulations under Article 70(2)(e) or 88A(2)(b) of the Education and Libraries (Northern Ireland) Order 1986(37), the details are–

(i) the date on which the decision to prohibit or restrict the person’s employment or further employment was taken;

(ii) the medical grounds on which the decision was based; and

(iii) whether any appeal against that prohibition or restriction is pending.

(2) For the purposes of section 113C(1)(d), the prescribed details of the circumstances in which a specified children’s direction was given are–

(a) the date the direction was given;

(b) details of any prohibition or restriction or other condition on the applicant’s employment; and

(c) details of any circumstances specified in the direction relative to the applicant’s employment.

Adults' suitability statement – specified adults' list

14.  For the purposes of section 113D(1)(b)(38), the following details of an applicant’s inclusion in the following specified adults' lists are prescribed:–

(a) in the list kept under section 81 of the Care Standards Act 2000(39), the details are–

(i) whether any appeal against inclusion in the list is pending; and

(ii) whether inclusion in the list is provisional; and

(b) in the list kept under Article 35 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003(40), the details are–

(i) whether any appeal against inclusion in the list is pending; and

(ii) whether inclusion in the list is provisional.

Crown employment

15.  For the purposes of section 116(2)(b)(41), appointments by or under the Crown to positions covered by regulation 10 are prescribed.

Evidence of identity: fingerprinting

16.—(1) Where the Scottish Ministers require an application under Part 5 to be supported by evidence of identity in the form of fingerprints they shall notify the applicant of this requirement and of the procedures set out in paragraphs (2) to (8).

(2) An applicant in receipt of notification in accordance with paragraph (1) who wishes to proceed with the application shall notify in writing the Scottish Ministers within the period specified in paragraph (3)–

(a) that the applicant consents to the taking of his or her fingerprints; and

(b) of the police station in the United Kingdom (“the nominated police station”) at which the applicant proposes to attend for the purpose of having the fingerprints taken.

(3) Where notice in accordance with paragraph (2) is not received by the Scottish Ministers within the period of 28 days from the date of the notification under paragraph (1) the application shall be considered to have been withdrawn.

(4) The police officer in charge of the nominated police station, or of such other police station as Scottish Ministers may reasonably specify (“the specified police station”), may take the applicant’s fingerprints at the nominated police station on such reasonable date and time as that officer shall direct and notify to the applicant.

(5) Fingerprints taken in connection with an application under Part 5 must be destroyed by the police officer in charge of the nominated police station or specified police station, or the Scottish Ministers, as soon as is practicable after the identity of the applicant is established to the satisfaction of the Scottish Ministers.

(6) If fingerprints taken in connection with an application under Part 5 are destroyed–

(a) any copies of those fingerprints taken in connection with an application under Part 5 shall also be destroyed; and

(b) any chief officer of police controlling access to computer data relating to those fingerprints taken in connection with an application under Part 5 shall make access to the data impossible, as soon as it is practicable to do so.

(7) Any applicant whose fingerprints have been taken in connection with an application under Part 5 shall, on request made in writing to the police officer in charge of the nominated police station or, as the case may be, specified police station at any time prior to destruction of those fingerprints or any copies of them, be allowed to witness the destruction of those fingerprints and any copies.

(8) If–

(a) paragraph (6)(b) above falls to be complied with; and

(b) the applicant to whose fingerprints the data relates asks for a certificate that it has been complied with,

such a certificate shall be issued to the applicant, not later than the end of the period of three months beginning with the day on which the certificate is asked for, by the responsible chief officer of police or by a person authorised by the chief officer or on behalf of the chief officer for the purposes of this regulation.

(9) In the case of an applicant under the age of 16 years the consent of–

(a) a person having, in relation to that applicant, parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995(42)) or parental rights (within the meaning of section 2(4) of that Act); or

(b) in England and Wales the applicant’s parent, guardian or other person having parental responsibility for the applicant within the meaning of section 3 of the Children Act 1989(43),

to the taking of the applicant’s fingerprints is also required.

(10) In this regulation–

(a) “responsible chief officer of police” means the chief officer of police in whose area the computer data was put on to the computer; and

(b) reference to notifying in writing or making a request in writing includes a reference to an electronic communication (within the meaning of the Electronic Communications Act 2000(44)) which has been recorded and is subsequently capable of being produced.

Appropriate bodies to pay fee for information provided to the Scottish Ministers

17.  For the purposes of section 119(7)(45) the reference to the appropriate police authority in section 119(3) must be construed as a reference to the following:–

(a) the Provost Marshal for the Royal Navy Regulating Branch;

(b) the Provost Marshal for the Royal Marines Police;

(c) the Provost Marshal for the Royal Military Police;

(d) the Provost Marshal for the Royal Air Force Police;

(e) the Ministry of Defence Police Committee for the Ministry of Defence Police;

(f) the British Transport Police Authority for the British Transport Police;

(g) the Civil Nuclear Police Authority for the Civil Nuclear Constabulary; and

(h) the Board of the Serious Organised Crime Agency.

Revocation

18.  The Police Act 1997 (Criminal Records) (Scotland) Regulations 2002(46), the Police Act 1997 (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) (Scotland) Regulations 2002(47) and the Police Act 1997 (Criminal Records) (Protection of Children) (Scotland) Regulations 2004(48) are revoked.

CATHY JAMIESON

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

2nd March 2006