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Part 5U.K.Safeguarding vulnerable groups, criminal records etc.

CHAPTER 4E+WDisregarding certain convictions for buggery etc.[F1: England and Wales]

Textual Amendments

F1Words in Pt. 5 Ch. 4 heading inserted (31.1.2017 for specified purposes, 28.6.2018 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 168(3), 183(4)(5)(e); S.R. 2018/128, art. 2(a)

Modifications etc. (not altering text)

C1Pt. 5 Ch. 4: power to amend conferred (31.1.2017 for specified purposes) by Policing and Crime Act 2017 (c. 3), ss. 166, 183(1)(5)(e) (with s. 167)

GeneralE+W

92Power of Secretary of State to disregard convictions or cautionsE+W

(1)A person who has been convicted of, or cautioned for, an offence [F2 in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex] may apply to the Secretary of State for the conviction or caution to become a disregarded conviction or caution.

(2)A conviction or caution becomes a disregarded conviction or caution when conditions A and B are met.

(3)Condition A is that the Secretary of State decides that it appears that—

(a)[F3any] other person involved in the [F4sexual activity] was aged 16 or over, F5...

[F6(b)the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it has been re-enacted or replaced), and

(c)the sexual activity would not, if occurring in the same circumstances at the point of decision, constitute an offence.]

(4)Condition B is that—

(a)the Secretary of State has given notice of the decision to the applicant under section 94(4)(b), and

(b)the period of 14 days beginning with the day on which the notice was given has ended.

(5)Sections 95 to 98 explain the effect of a conviction or caution becoming a disregarded conviction or caution.

[F7(6)Except in relation to service disciplinary proceedings, this section applies only in relation to persons convicted or cautioned in England and Wales.]

[F8(7)In this section “sexual activity” includes—

(a)any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and

(b)conduct intended to lead to sexual activity.]

Textual Amendments

F7S. 92(6) inserted (31.1.2017 for specified purposes, 28.6.2018 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 168(4), 183(4)(5)(e); S.R. 2018/128, art. 2(a)

Modifications etc. (not altering text)

C2S. 92: power to amend conferred (31.1.2017 for specified purposes) by Policing and Crime Act 2017 (c. 3), ss. 166, 183(1)(5)(e) (with s. 167)

Commencement Information

I1S. 92 in force at 1.10.2012 by S.I. 2012/2234, art. 3(c)

93Applications to the Secretary of StateE+W

(1)An application under section 92 must be in writing.

(2)It must state—

(a)the name, address and date of birth of the applicant,

(b)the name and address of the applicant at the time of the conviction or caution,

(c)so far as known to the applicant, the time when and the place where the conviction was made or the caution given and, for a conviction, the case number, and

(d)such other information as the Secretary of State may require.

(3)It may include representations by the applicant or written evidence about [F9—

(a)whether a conviction or caution is of a kind mentioned in section 92(1);

(b)the matters mentioned in condition A in that section.]

Textual Amendments

Commencement Information

I2S. 93 in force at 1.10.2012 by S.I. 2012/2234, art. 3(d)

94Procedure for decisions by the Secretary of StateE+W

(1)In considering [F10whether a conviction or caution is of a kind mentioned in section 92(1) or] whether to make a decision of the kind mentioned in condition A in [F11that section], the Secretary of State must, in particular, consider—

(a)any representations or evidence included in the application, and

(b)any available record of the investigation of the offence and of any proceedings relating to it that the Secretary of State considers to be relevant.

(2)The Secretary of State may not hold an oral hearing for the purpose of deciding [F12whether a conviction or caution is of a kind mentioned in section 92(1) or] whether to make a decision of the kind mentioned in condition A in [F13that section].

[F14(2A)If the Secretary of State refuses an application on the basis that the caution or conviction is not of a kind mentioned in section 92(1), the Secretary of State must—

(a)record the decision in writing, and

(b)give notice of it to the applicant.]

(3)Subsection (4) applies if the Secretary of State—

(a)decides that it appears as mentioned in condition A in section 92, or

(b)makes a different decision in relation to the matters mentioned in that condition.

(4)The Secretary of State must—

(a)record the decision in writing, and

(b)give notice of it to the applicant.

Textual Amendments

Commencement Information

I3S. 94 in force at 1.10.2012 by S.I. 2012/2234, art. 3(e)