SCHEDULE 1Relevant offences
1
An offence falls within this paragraph if it is—
(a)
an offence under section 12 (cruelty to children under 16) of the Children and Young Persons (Scotland) Act 1937 (c. 37),
(b)
an offence under section 15 (causing or allowing children under 16 to be used for begging or procuring alms) of that Act,
(c)
an offence under section 22 (exposing a child under 7 to risk of burning) of that Act,
(d)
an offence under section 33 (causing or allowing children under 17 to participate in performances which endanger life or limb) of that Act,
(e)
an offence under section 52 (taking, distributing, showing, or publishing etc. any indecent photograph or pseudo-photograph of a child) of the Civic Government (Scotland) Act 1982 (c. 45),
(f)
an offence under section 52A (possessing any indecent photograph or pseudo-photograph of a child) of that Act,
F1(g)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h)
an offence under section 3 (intercourse of person in position of trust with child under 16) of F2the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39),
F3(i)
an offence under section 5(2) (attempt to have intercourse with a girl under 13) of that Act,
(ia)
an offence under section 5(3) (intercourse or attempt to have intercourse with a girl of over 13 and under 16) of that Act,
(j)
an offence under section 6 (indecent behaviour towards girl between 12 and 16) of that Act,
(k)
an offence under section 8 (abduction and unlawful detention of unmarried girl under 18) of that Act,
(l)
an offence under section 9 (permitting girl under 16 to use premises for intercourse) of that Act,
(m)
an offence under section 10 (causing or encouraging the seduction of, the prostitution of, unlawful intercourse with or the commission of an indecent assault on a girl under 16) of that Act,
(n)
an offence under section 12 (allowing child who is 4 or over but under 16 to be in a brothel) of that Act,
(o)
an offence under section 13(5)(c) (homosexual acts with a boy under 16) of that Act,
(p)
an offence under section 3 (sexual activity of person in position of trust with child) of the Sexual Offences (Amendment) Act 2000 (c. 44),
(q)
an offence under section 1 (meeting a child following certain preliminary contact) of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9),
F4(r)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(s)
an offence under section 9 (paying for sexual services of a child) of that Act,
(t)
an offence under section 10 (causing or inciting provision by child of sexual services or child pornography) of that Act,
(u)
an offence under section 11 (controlling a child providing sexual services or involved in pornography) of that Act,
(v)
an offence under section 12 (arranging or facilitating provision by child of sexual services or child pornography) of that Act.
F5(w)
an offence under section 20(1) and (2)(a) (sexual assault on a young child (under 13) by penetration of the vagina, anus or mouth by any means) of the Sexual Offences (Scotland) Act 2009 (asp 9) where the conviction is in summary proceedings,
(x)
an offence under section 20(1) and (2)(b) to (e) (sexual assault on a young child) of that Act,
(y)
an offence under section 21 (causing a young child to participate in a sexual activity) of that Act,
(z)
an offence under section 22 (causing a young child to be present during a sexual activity) of that Act,
(za)
an offence under section 23 (causing a young child to look at a sexual image) of that Act,
(zb)
an offence under section 24 (communicating indecently with a young child etc. ) of that Act,
(zc)
an offence under section 25 (sexual exposure to a young child) of that Act,
(zd)
an offence under section 26 (voyeurism towards a young child) of that Act,
(ze)
an offence under section 28 (having intercourse with an older child) of that Act,
(zf)
an offence under section 29 (engaging in penetrative sexual activity with or towards an older child) of that Act,
(zg)
an offence under section 30 (engaging in sexual activity with or towards an older child) of that Act,
(zh)
an offence under section 31 (causing an older child to participate in a sexual activity) of that Act,
(zi)
an offence under section 32 (causing an older child to be present during a sexual activity) of that Act,
(zj)
an offence under section 33 (causing an older child to look at a sexual image) of that Act,
(zk)
an offence under section 34 (communicating indecently with an older child etc. ) of that Act,
(zl)
an offence under section 35 (sexual exposure to an older child) of that Act,
(zm)
an offence under section 36 (voyeurism towards an older child) of that Act,
(zn)
an offence under section 42 (sexual abuse of trust) of that Act,
(zo)
an offence in respect of attempting or conspiring to commit any offence referred to in this paragraph,
(zp)
an offence in respect of aiding and abetting, inciting, counselling or procuring any offence referred to in this paragraph,
(zq)
an offence in respect of attempting or conspiring to commit any offence listed in paragraphs 9, 10 or 11 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010,
(zr)
an offence in respect of aiding and abetting, inciting, counselling or procuring any offence listed in paragraphs 9, 10 or 11 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010,
F6(zra)
an offence under section 34 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016,
(zrb)
an offence under section 37 of that Act in respect of a breach of—
(i)
a sexual risk order made under section 122A of the Sexual Offences Act 2003,
(ii)
an interim sexual risk order made under section 122E of the Sexual Offences Act 2003,
(iii)
a risk of sexual harm order made under section 123 of the Sexual Offences Act 2003, or
(iv)
an interim risk of sexual harm order made under section 126 of the Sexual Offences Act 2003,
(zs)
an offence which—
(i)
is similar in nature to an offence referred to in this paragraph, and
(ii)
was provided for in an enactment which is no longer in force or was an offence at common law which has been abolished by an enactment.
2
An individual falls within this paragraph if the individual—
F7(za)
commits an offence of culpable homicide in relation to a child,
(a)
commits an offence under section 4(3) (offering or supplying controlled drugs) of the Misuse of Drugs Act 1971 (c. 38) in relation to a child,
F8(aa)
commits an offence under section 170 (penalty for fraudulent evasion of duty etc.) of the Customs and Excise Management Act 1979 (c.2) in relation to goods prohibited to be imported under section 42 (indecent or obscene articles) of the Customs Consolidation Act 1876 (c.36), if the prohibited goods included indecent photographs of persons under 16,
(b)
commits an offence under section 1 (incest) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) by having sexual intercourse with a child,
F9(ba)
commits an offence under section 2 (intercourse with a step-child) of that Act in relation to a child,
(c)
commits an offence under section 7 (procuring unlawful intercourse etc.) of that Act in relation to a child,
(d)
commits an offence under section 11 (trading in prostitution and brothel-keeping) of that Act in relation to a child,
(e)
commits an offence under section 13(6) (procuring commission of homosexual act between males) of that Act by procuring, or attempting to procure, a child to commit a homosexual act,
F10(ea)
commits an offence under section 83 (offence of ill treatment and wilful neglect) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) in relation to a child,
(eb)
commits an offence under section 311(1) and (2)(a) (non‑consensual sexual acts) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) in relation to a child where the conviction is in summary proceedings,
(ec)
commits an offence under section 311(1) and 2(b) (non‑consensual sexual acts) of that Act in relation to a child,
(ed)
commits an offence under section 313 (persons providing core services: sexual offences) of that Act in relation to a child,
(ee)
commits an offence under section 315 (ill treatment and wilful neglect of mentally disordered person) of that Act in relation to a child,
(ef)
commits an offence under section 4 (trafficking people for exploitation) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) in relation to a child,
(eg)
commits an offence under section 1 (offence of female genital mutilation) of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (asp 8) in relation to a child,
(eh)
commits an offence under section 3 (aiding and abetting female genital mutilation) of that Act in relation to a child,
(ei)
commits an offence under section 3(1) and 2(a) (sexual assault by penetration of the vagina, anus or mouth by any means) of the Sexual Offences (Scotland) Act 2009 (asp 9) in relation to a child where the conviction is in summary proceedings,
(ej)
commits an offence under section 3(1) and (2)(b) to (e) (sexual assault) of that Act in relation to a child,
(ek)
commits an offence under section 4 (sexual coercion) of that Act in relation to a child,
(el)
commits an offence under section 5 (coercing a person into being present during a sexual activity) of that Act in relation to a child,
(em)
commits an offence under section 6 (coercing a person into looking at a sexual image) of that Act in relation to a child,
(en)
commits an offence under section 7 (communicating indecently etc.) of that Act in relation to a child,
(eo)
commits an offence under section 8 (sexual exposure) of that Act in relation to a child,
(ep)
commits an offence under section 9 (voyeurism) of that Act in relation to a child,
(eq)
commits an offence under section 11 (administering a substance for sexual purposes) of that Act in relation to a child,
(er)
commits an offence under section 46 (sexual abuse of trust of a mentally disordered person) of that Act in relation to a child.
(f)
commits any other offence which caused, or was intended to cause, bodily injury to a child,
(g)
commits any other offence by engaging in lewd, indecent or libidinous practice or behaviour towards a child.
F11(h)
commits an offence in respect of attempting or conspiring to commit any offence referred to in this paragraph,
(i)
commits an offence in respect of aiding and abetting, inciting, counselling or procuring any offence referred to in this paragraph, other than an offence referred to in sub-paragraph (eh),
(j)
commits an offence in respect of attempting or conspiring to commit any offence listed in paragraphs 1, 2, 3, 5, 6, 7 or 8 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010 in relation to a child,
(k)
commits an offence in respect of aiding and abetting, inciting, counselling or procuring any offence listed in paragraphs 1, 2, 3, 5, 6, 7 or 8 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010 in relation to a child,
(l)
commits an offence in relation to a child which—
(i)
is similar in nature to an offence referred to in this paragraph, and
(ii)
was provided for in an enactment which is no longer in force or was an offence at common law which has been abolished by an enactment.
F12SCHEDULE 2Regulated roles with children
PART 1Preliminary
Regulated roles with children
1
(1)
A regulated role with children is a role of any description which—
(a)
involves the carrying out of one or more activities mentioned in Part 2 of this schedule, and
(b)
satisfies the conditions mentioned in sub-paragraph (2).
(2)
The conditions are—
(a)
the activities are carried out—
(i)
as a necessary part of the role, and
(ii)
in Scotland, and
(b)
in the case of—
(i)
activities mentioned in paragraph 21 of Part 2 of this schedule, the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have unsupervised contact with children,
(ii)
other activities mentioned in Part 2 of this schedule, the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have contact with children.
(3)
A role—
(a)
the normal duties of which include the day-to-day supervision or management of an individual carrying out a regulated role by virtue of sub-paragraph (1), or
(b)
which involves training or studying in Scotland to carry out one or more activities mentioned in Part 2 of this schedule and which gives the individual undertaking the training or study, when doing anything permitted or required in connection with undertaking the training or study, the opportunity to have contact with children,
is to be treated as a regulated role with children for the purposes of sub-paragraph (1).
(4)
For the purposes of sub-paragraph (2)(a)(ii), where—
(a)
an activity is carried out outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,
(b)
the activity is carried out for—
(i)
an organisation with a place of business in Scotland, or
(ii)
a personnel supplier with a place of business in Scotland, and
(c)
the organisation's or personnel supplier's functions in relation to the carrying out of the activity by the individual are principally exercised at that place of business,
the activity is to be treated as if it were carried out in Scotland.
(5)
For the purposes of sub-paragraph (3)(b), where—
(a)
training or study is undertaken outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,
(b)
the person with principal responsibility for the provision of the training or course of study is—
(i)
an organisation with a place of business in Scotland, or
(ii)
a personnel supplier with a place of business in Scotland, and
(c)
the organisation's or personnel supplier's functions in relation to the undertaking of the training or study by the individual are principally exercised at that place of business,
the training or study is to be treated as if it were undertaken in Scotland.
Exceptions to regulated roles with children
2
(1)
A role which would be a regulated role with children by virtue of the carrying out of an activity mentioned in any of the paragraphs of Part 2 of this schedule is not, despite any of those provisions, a regulated role with children if—
(a)
the activity is carried out in relation to children in the course of the children's work (whether paid or unpaid work),
(b)
the activity is carried out in the course of a family relationship, or
(c)
the activity is carried out for an individual (“A”)—
(i)
in the course of a personal relationship,
(ii)
for no commercial consideration, and
(iii)
for the benefit of A, a member of A's family or A's friend.
(2)
In sub-paragraph (1)(b)—
(a)
a family relationship does not include a relationship between a child and a foster carer in relation to the child,
(b)
a family relationship includes a relationship between two persons who—
(i)
live in the same household, and
(ii)
treat each other as though they were members of the same family.
(3)
In sub-paragraph (1)(c)—
(a)
a personal relationship is a relationship between or among friends, and
(b)
“benefit” does not include commercial benefit.
(4)
For the purposes of sub-paragraphs (1)(c) and (3)(a), a friend of a member of an individual's family is to be regarded as being the individual's friend.
(5)
Ministers may prescribe circumstances in which an activity is or is not to be treated for the purposes of this paragraph as being done in the course of a family or personal relationship.
Definitions in relation to contact with children
3
(1)
In paragraph 1(2)(b)—
“contact with children”—
- (a)
means, in relation to an activity, contact that is more than incidental to the carrying out of the activity, and
- (b)
F13includes any of the following—
- (i)
physical contact with children,
- (ii)
visual, written or verbal communication with children,
- (iii)
exercising power or influence over children,
- (i)
- (a)
“unsupervised contact with children” means contact with children in the absence of—
- (a)
a responsible person,
- (b)
a person carrying out an activity mentioned in paragraph 4, 8 or 12 of Part 2 of this schedule, or
- (c)
an individual who, in relation to a child, has agreed to supervise the contact under arrangements made by the child's parent or guardian or any person aged 18 or over with whom the child lives in the course of a family or personal relationship,
- (a)
“responsible person” means, in relation to a child, any of the following persons—
- (a)
the child's parent or guardian,
- (b)
any person aged 18 or over with whom the child lives,
- (c)
the person in charge of any of the following establishments in which the child is accommodated, is a patient or receives education (and any person acting on behalf of such a person)—
- (i)
secure accommodation for children,
- (ii)
a hospital which is used exclusively or mainly for the reception and treatment of children,
- (iii)
an educational institution,
- (iv)
a hostel,
- (v)
a residential care setting,
- (i)
- (d)
a person who provides day care of children (within the meaning of schedule 12 of the Public Services Reform (Scotland) Act 2010),
- (e)
any person holding a position mentioned in sub-paragraph (2),
- (a)
“family relationship” and “personal relationship” are to be construed in accordance with paragraph 2(2) to (4).
(2)
The positions referred to in paragraph (e) of the definition of “responsible person” in sub-paragraph (1) are—
(a)
a manager or member of a governing body, body of trustees or other body responsible for the management of an educational institution or a hostel (other than a member of a council),
(b)
a member of—
(i)
a committee (including joint committee) of a council which is concerned with the provision of education, accommodation, social services or health care services to children,
(ii)
a sub-committee which discharges any functions of any such committee,
(c)
a member of—
(i)
the Children's Panel,
(ii)
the Safeguarders Panel,
(iii)
Children's Hearings Scotland,
(iv)
staff of Children's Hearings Scotland,
(v)
an area support team,
(vi)
the Scottish Children's Reporter Administration,
(vii)
staff of the Scottish Children's Reporter Administration,
(d)
the National Convener of Children's Hearings Scotland,
(e)
the Principal Reporter,
(f)
the chief social work officer of a council,
(g)
the Chief Education Officer of an education authority,
(h)
the Commissioner for Children and Young People in Scotland,
(i)
a member of staff of the Commissioner for Children and Young People in Scotland,
(j)
the Registrar of Independent Schools in Scotland,
(k)
a foster carer,
(l)
a charity trustee of a children's charity,
(m)
a person holding another position in a children's charity.
(3)
In paragraph 1(3), “contact with children”—
(a)
means, in relation to training or study, contact that is more than incidental to the undertaking of the training or study, and
(b)
F14includes any of the following—
(i)
physical contact with children,
(ii)
visual, written or verbal communication with children,
(iii)
exercising power or influence over children.
(4)
For the purpose of paragraph (b) of the definitions of “contact with children” in each of sub-paragraphs (1) and (3), “exercising power or influence over children” means—
(a)
assisting, facilitating, permitting or impeding progress towards a desirable objective or outcome for a particular child,
(b)
making decisions of an operational or strategic nature that could have an impact on a number of children, or
(c)
persuading or putting pressure on a particular child to behave or act in a certain manner for the financial gain or personal gratification of a person other than the child.
PART 2Activities
Child protection
4
Acting as a foster carer in relation to the child.
5
Making decisions in relation to a child's care arrangements where a council has facilitated the child's care arrangements.
6
Having responsibility for the safety and welfare of a child, other than acting as a foster carer in relation to the child.
7
Having the ability to directly influence decisions about the safety or welfare of a child, other than in the capacity of an elected representative or as the holder of a judicial office.
Education and training
8
Teaching, instructing or delivering training to children.
9
Having the ability to directly influence the operational delivery of education services for children, other than in the capacity of an elected representative or as the holder of a judicial office.
10
Holding power or influence over a child for the purpose of—
(a)
an activity in which the child is taking part or seeking to take part in,
(b)
arranging the future recruitment, training or employment of the child.
11
Providing advice or guidance to children in relation to career development or education.
Childcare
12
Being in charge of or caring for children, other than acting as a foster carer.
Care, health and accommodation services
13
Practising as a registered medical practitioner.
F1513A.
Practising as an anaesthesia associate or physician associate pursuant to registration with the General Medical Council.
14
Practising as a registered nurse, midwife or health visitor.
F1614A.
Practising in a profession pursuant to registration with the Health and Care Professions Council.
15
Practising as a chiropractor pursuant to registration with the General Chiropractic Council.
16
Practising as a dentist F17or dental care professional pursuant to registration with the General Dental Council.
17
Practising as an F18optometrist or dispensing optician pursuant to registration with the General Optical Council.
18
Practising as an osteopath pursuant to registration with the General Osteopathic Council.
19
Practising as a pharmacist F19or pharmacy technician pursuant to registration with the General Pharmaceutical Council.
20
Being engaged in the provision of a domestic service (including cleaning, preparing food, acting as a caretaker of premises or carrying out maintenance of premises) that is provided for children in an educational institution, hospital, F20nursery, day care premises, hospice, hostel, residential care setting or secure accommodation for children.
21
Carrying out an activity in an educational institution, hospital, nursery, day care premises, hospice, F21hostel, residential care setting or secure accommodation for children.
22
Providing a care home service or an independent healthcare service which is provided exclusively or mainly for children.
23
Being engaged by or on behalf of a child with an illness or disability to provide personal care services.
24
25
Having the ability to directly influence the operational delivery of medical or care services for children, other than in the capacity of an elected representative or as the holder of a judicial office.
Leisure activities
26
Providing cultural, leisure, social or recreational activities for children.
Sports activities
27
Coaching children in relation to sports or physical activity.
Religious activities
28
Providing religious activities or services for children.
Miscellaneous
29
Driving or escorting children in connection with transport services provided exclusively or mainly for children.
30
Holding a position of responsibility in an organisation which has as one of its main purposes the provision of benefits for or to children (regardless of whether the organisation has an additional purpose of providing benefits for or to another group of persons).
Interpretation
31
In this schedule—
“care home service” has the same meaning as in paragraph 2 of schedule 12 of the Public Services Reform (Scotland) Act 2010,
“children's charity” means a charity whose—
(a)
main purpose is to provide benefits for children, and
(b)
principal means of delivery of those benefits is by its staff carrying out regulated roles with children,
“day care premises” means premises at which day care of children (within the meaning of schedule 12 of the Public Services Reform (Scotland) Act 2010) is provided,
“educational institution” means a school or further education institution,
“elected representative” means—
(a)
a member of the House of Commons,
(b)
a member of the Scottish Parliament,
“further education institution” means a body listed under the heading “Institutions formerly eligible for funding by the Scottish Further Education Funding Council” in schedule 2 of the Further and Higher Education (Scotland) Act 2005 or a college of further education which is assigned to a regional strategic body by order made under section 7C(1) of that Act,
“hospital” has the meaning given in section 108(1) of the National Health Service (Scotland) Act 1978,
“hostel” means a hostel used mainly by pupils attending an educational institution,
“independent health care service” has the same meaning as in section 10F of the National Health Service (Scotland) Act 1978,
“judicial office” means—
(a)
the office of judge of any court,
(b)
the office of member of any tribunal,
(c)
any other office, or appointment, consisting of functions of a judicial nature,
“prison” means a prison or young offenders institution that is under the general superintendence of the Scottish Ministers under the Prisons (Scotland) Act 1989 and includes any contracted out prison within the meaning of section 106(4) of the Criminal Justice and Public Order Act 1994,
“prisoner” means a person committed to prison for trial, safe custody, punishment or otherwise,
“residential care setting” means a home that—
(a)
is provided exclusively or mainly for children, and
(b)
is—
- (i)
provided by a council in exercise of its functions under section 59 (provision by councils of residential and other establishments) of the Social Work (Scotland) Act 1968 or section 25 (provision of care and support services by councils) of the Mental Health (Care and Treatment) (Scotland) Act 2003, or
- (ii)
provided or secured by a person to whom such a function is delegated by a council in pursuance of an integration scheme under section 1 or 2 (integration schemes) of the Public Bodies (Joint Working) (Scotland) Act 2014,
“secure accommodation for children” means accommodation provided in a residential establishment, approved in accordance with regulations made under section 78(2) of the Public Services Reform (Scotland) Act 2010, for the purpose of restricting the liberty of children.
32
Ministers may by regulations amend the definition of “further education institution” in paragraph 31 so as to include or exclude bodies listed in schedule 2 of the Further and Higher Education (Scotland) Act 2005.
PART 3General
Power to amend schedule
33
Ministers may by regulations modify this schedule as they think appropriate.
34
Regulations under paragraph 33 may disapply or otherwise modify the application of sections 34 to 37 and sections 45C to 45G in relation to particular kinds of regulated roles with children.
F24SCHEDULE 3Regulated roles with adults
PART 1Preliminary
Regulated roles with adults
1
(1)
A regulated role with adults is a role of any description which—
(a)
involves the carrying out of one or more activities mentioned in Part 2 of this schedule, and
(b)
satisfies the conditions mentioned in sub-paragraph (2).
(2)
The conditions are—
(a)
the activities are carried out—
(i)
as a necessary part of the role, and
(ii)
in Scotland, and
F25(b)
in the case of—
(i)
activities mentioned in paragraph 13A of Part 2 of this schedule, the carrying out of activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have unsupervised contact with protected adults,
(ii)
other activities mentioned in Part 2 of the schedule, the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have contact with protected adults.
(3)
A role—
(a)
the normal duties of which include the day-to-day supervision or management of an individual carrying out a regulated role by virtue of sub-paragraph (1), or
(b)
which involves training or studying in Scotland to carry out one or more activities mentioned in Part 2 of this schedule and which gives the individual undertaking the training or study, when doing anything permitted or required in connection with undertaking the training or study, the opportunity to have contact with protected adults,
is to be treated as a regulated role with adults for the purposes of sub-paragraph (1).
(4)
For the purposes of sub-paragraph (2)(a)(ii), where—
(a)
an activity is carried out outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,
(b)
the activity is carried out for—
(i)
an organisation with a place of business in Scotland, or
(ii)
a personnel supplier with a place of business in Scotland, and
(c)
the organisation's or personnel supplier's functions in relation to the carrying out of the activity by the individual are principally exercised at that place of business,
the activity is to be treated as if it were carried out in Scotland.
(5)
For the purposes of sub-paragraph (3)(b), where—
(a)
training or study is undertaken outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,
(b)
the person with principal responsibility for the provision of the training or course of study is—
(i)
an organisation with a place of business in Scotland, or
(ii)
a personnel supplier with a place of business in Scotland, and
(c)
the organisation's or personnel supplier's functions in relation to the undertaking of the training or study by the individual are principally exercised at that place of business,
the training or study is to be treated as if it were undertaken in Scotland.
Exceptions to regulated roles with adults
2
(1)
A role which would be a regulated role with adults by virtue of the carrying out of an activity mentioned in any of the paragraphs of Part 2 of this schedule is not, despite any of those provisions, a regulated role with adults if—
(a)
the activity is carried out in the course of a family relationship, or
(b)
the activity is carried out for an individual (“A”)—
(i)
in the course of a personal relationship,
(ii)
for no commercial consideration, and
(iii)
for the benefit of A, a member of A's family or A's friend.
(2)
In sub-paragraph (1)(a) a family relationship includes a relationship between two persons who—
(a)
live in the same household, and
(b)
treat each other as though they were members of the same family.
(3)
In sub-paragraph (1)(b)—
(a)
a personal relationship is a relationship between or among friends, and
(b)
“benefit” does not include commercial benefit.
(4)
For the purposes of sub-paragraphs (1)(b) and (3)(a), a friend of a member of an individual's family is to be regarded as being the individual's friend.
(5)
Ministers may prescribe circumstances in which an activity is or is not to be treated for the purposes of this paragraph as being done in the course of a family or personal relationship.
Definition of contact with protected adults
3
F26(1)
In paragraph 1(2)(b)—
“contact with protected adults”—
(a)
means, in relation to an activity, contact that is more than incidental to the carrying out of the activity, and
(b)
includes any of the following—
- (i)
physical contact with protected adults,
- (ii)
visual, written or verbal communication with protected adults,
- (iii)
exercising power or influence over protected adults,
“unsupervised contact with protected adults” means contact with protected adults in the absence of a person carrying out an activity mentioned in paragraphs 14, 14A, 14B or 18 of Part 2 of this schedule.
(2)
In paragraph 1(3)(b) “contact with protected adults”—
(a)
means, in relation to training or study, contact that is more than incidental to the undertaking of the training or study, and
F27(b)
includes any of the following—
(i)
physical contact with protected adults,
(ii)
visual, written or verbal communication with protected adults,
(iii)
exercising power or influence over protected adults.
(3)
For the purpose of paragraph (b) of the definitions of “contact with protected adults” in each of sub-paragraphs (1) and (2), “exercising power or influence over protected adults” means—
(a)
assisting, facilitating, permitting or impeding progress towards a desirable objective or outcome for a particular protected adult,
(b)
making decisions of an operational or strategic nature that could have an impact on a number of protected adults, or
(c)
persuading or putting pressure on a particular protected adult to behave or act in a certain manner for the financial gain or personal gratification of a person other than the protected adult.
PART 2Activities
Education, training and guidance
4
Teaching, instructing, training or supervising protected adults.
5
Providing advice or guidance to a protected adult in relation to education, training or employability.
Care, health and accommodation services
6
Practising as a registered medical practitioner.
F286A.
Practising as an anaesthesia associate or physician associate pursuant to registration with the General Medical Council.
7
Practising as a registered nurse, midwife or health visitor.
F297A.
Practising in a profession pursuant to registration with the Health and Care Professions Council.
8
Practising as a chiropractor pursuant to registration with the General Chiropractic Council.
9
Practising as a dentist F30or dental care professional pursuant to registration with the General Dental Council.
10
Practising as an F31optometrist or dispensing optician pursuant to registration with the General Optical Council.
11
Practising as an osteopath pursuant to registration with the General Osteopathic Council.
12
Practising as a pharmacist F32or pharmacy technician pursuant to registration with the General Pharmaceutical Council.
13
Being engaged in the provision of a domestic service (including cleaning, preparing food, acting as a caretaker of premises or carrying out maintenance of premises) that is provided for protected adults in a hospital, hospice, care home, day care centre or adult placement setting.
F3313A.
Carrying out an activity in a hospital, hospice, care home, day care centre or adult placement setting.
14
Being in charge of protected adults.
F3414A.
Having responsibility for the safety and welfare of a protected adult.
14B.
Having the ability to directly influence decisions about the safety and welfare of a protected adult, other than in the capacity of an elected representative or as the holder of a judicial office.
15
Being engaged by or on behalf of a protected adult to support the protected adult to live independently, including providing personal care services, food preparation or recreational services.
16
Providing support to a protected adult under a shared lives scheme.
17
18
Having the ability to directly influence the operational delivery of medical or care services for protected adults, other than in the capacity of an elected representative or as the holder of a judicial office.
Leisure activities
19
Providing cultural, leisure, social or recreational activities for protected adults.
Sports activities
20
Coaching protected adults in relation to sports or physical activity.
Religious activities
21
Providing religious activities or services for protected adults.
Miscellaneous
22
Driving or escorting protected adults in connection with transport services provided exclusively or mainly for use by protected adults.
23
Holding a position of responsibility in an organisation F37which has as one of its main purposes the provision of benefits for or to protected adults (regardless of whether the organisation has an additional purpose of providing benefits for or to another group of persons).
Interpretation
24
In this schedule—
“adult placement setting” means a residential establishment or accommodation occupied exclusively or mainly by individuals aged 18 or over which is—
(a)
provided by a council in exercise of its functions under section 59 (provision by councils of residential and other establishments) of the Social Work (Scotland) Act 1968 or section 25 (provision of care and support services by councils) of the Mental Health (Care and Treatment) (Scotland) Act 2003, or
(b)
provided or secured by a person to whom such a function is delegated by a council in pursuance of an integration scheme under section 1 or 2 (integration schemes) of the Public Bodies (Joint Working) (Scotland) Act 2014,
“care home” means accommodation occupied exclusively or mainly by individuals aged 18 or over which is provided by an organisation carrying on a care home service (within the meaning of schedule 12 of the Public Services Reform (Scotland) Act 2010),
“elected representative” means—
(a)
a member of the House of Commons,
(b)
a member of the Scottish Parliament,
“hospital” has the meaning given in section 108(1) of the National Health Service (Scotland) Act 1978,
“judicial office” means—
(a)
the office of judge of any court,
(b)
the office of member of any tribunal,
(c)
any other office, or appointment, consisting of functions of a judicial nature,
“prison” means a prison or young offenders institution that is under the general superintendence of the Scottish Ministers under the Prisons (Scotland) Act 1989 and includes any contracted out prison within the meaning of section 106(4) of the Criminal Justice and Public Order Act 1994,
“prisoner” means a person committed to prison for trial, safe custody, punishment or otherwise,
“shared lives agreement” means an agreement entered into between a person carrying on a shared lives scheme and an individual for the provision, by that individual, of personal care to a protected adult together with, where necessary, accommodation in the individual's home,
“shared lives carer” means an individual who, under the terms of a shared lives agreement, provides, or intends to provide, personal care for protected adults together with, where necessary, accommodation in the individual's home,
“shared lives scheme” means a scheme carried on (whether or not for profit) by a local authority or other person for the purposes of—
(a)
recruiting and training shared lives carers,
(b)
making arrangements for the placing of protected adults with shared lives carers, and
(c)
supporting and monitoring placements.
PART 3General
Power to amend schedule
25
Ministers may by regulations modify this schedule as they think appropriate.
26
Regulations under paragraph 25 may disapply or otherwise modify the application of sections 34 to 37 and sections 45C to 45G in relation to particular kinds of regulated roles with adults.
SCHEDULE 4Minor and consequential amendments and repeals
Teaching Council (Scotland) Act 1965 (c. 19)
F381
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F392
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F403
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F414
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Education (Scotland) Act 1980 (c. 44)
5
The Education (Scotland) Act 1980 is amended as follows.
6
In section 98A—
(a)
in subsection (5)(a)(ii), for “disqualified from working with children” substitute “
barred from regulated work with children
”
,
(b)
““barred from regulated work with children” shall be construed in accordance with the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14);”.
7
In section 99(1A)—
(a)
in paragraph (g)(ii), for “disqualified from working with children” substitute “
barred from regulated work with children
”
,
(b)
in paragraph (h)(ii), for “disqualified from working with children” substitute “
barred from regulated work with children
”
.
8
In section 135(1)—
(a)
““barred from regulated work with children” has the meaning given by section 98A(6) of this Act;”,
(b)
the definition of “disqualified from working with children” is repealed.
Foster Children (Scotland) Act 1984 (c. 56)
9
The Foster Children (Scotland) Act 1984 is amended as follows.
10
“(3)
A person who lives in the same premises as a barred person shall not maintain a foster child.
(4)
In subsection (3) (and in section 15(2A)), “barred person” means a person who is barred from regulated work with children (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14)).”.
11
“(2A)
A person shall not be guilty of an offence under subsection (1)(c) above in relation to a contravention of section 7(3) if the person proves that he did not know, and had no reasonable ground for believing, that any other person living in the premises in which the person lives was a barred person.”.
12
““barred person” has the meaning given by section 7(4);”.
Criminal Procedure (Scotland) Act 1995 (c. 46)
13
The 1995 Act is amended as follows.
14
In section 106(1)—
(a)
paragraphs (db) and (dc) are repealed,
(b)
in paragraph (f), sub-paragraphs (ii) and (iii) are repealed.
15
In section 110(1)(a), the words “, the proposal to make a reference was made” are repealed.
16
Section 111(3) is repealed.
17
“(2)
A person who has appealed against both conviction and sentence (or, as the case may be, against both conviction and a decision mentioned in section 106(1)(bb) or both conviction and disposal and order) may abandon the appeal in so far as it is against conviction and may proceed with it against sentence (or, as the case may be, decision, disposal or order) alone.”.
18
In section 118—
(a)
in subsection (4), for the words “106(1)(ba), (bb), (c), (d), (da), (dc), (e) or (f)” substitute “
106(1)(ba), (bb), (c), (d), (da), (e) or (f)
”
,
(b)
subsection (4AA) is repealed,
(c)
in subsection (7)—
(i)
the words “or, as the case may be,” at the end of paragraph (a), and
(ii)
paragraph (b),
are repealed.
19
In section 121A(1), the words “(other than an appeal under section 106(1)(db) or (dc))” are repealed.
20
In section 173(2), the words “or (cb)” are repealed.
21
In section 175—
(a)
in subsection (2)—
(i)
paragraph (cb)(but not the word “or” which appears immediately after that paragraph) is repealed,
(ii)
in paragraph (d), sub-paragraphs (ii) and (iii) are repealed,
(b)
in subsection (8), for the words from “under” to the end of paragraph (c) substitute “
against both conviction and sentence may abandon the appeal in so far as it is against conviction and may proceed with it against sentence alone,
”
,
(c)
in subsection (9), the words “or (cb)” are repealed.
22
Section 181(4) is repealed.
23
In section 186—
(a)
the words “or (cb)”, where they appear in subsections (1), (2), (9) and (10), are repealed,
(b)
in subsection (2)(a)—
(i)
at the end of sub-paragraph (i) insert “
or
”
,
(ii)
sub-paragraph (iii)(and the word “or” which immediately precedes it) are repealed.
24
In section 187(1), the words “or (cb)” are repealed.
25
In section 189—
(a)
subsection (2A) is repealed,
(b)
in subsection (7)(b)—
(i)
the words “or, as the case may be,” at the end of paragraph (a), and
(ii)
paragraph (b),
are repealed.
26
In section 193A(1), the words “(other than by way of an appeal under section 175(2)(cb) of this Act against a reference only)” are repealed.
Police Act 1997 (c. 50)
27
Part 5 of the 1997 Act is amended as follows.
28
“(5A)
The Scottish Ministers need not issue a criminal record certificate under subsection (1) if the statement accompanying the application states that the purpose for which the certificate is required is the purpose mentioned in disclosure condition C (set out in section 55 of the Protection of Vulnerable Groups (Scotland) Act 2007) (asp 14)).”.
29
“113CASuitability information relating to children
(1)
In such cases as are prescribed, an enhanced criminal record certificate must also include suitability information relating to children.
(2)
Suitability information relating to children is—
(a)
whether the applicant is barred from regulated work with children;
(b)
if the applicant is barred from such activity, such details as are prescribed of the circumstances in which the applicant became barred;
(c)
whether the Scottish Ministers are considering whether to list the individual in the children's list;
(d)
whether the Independent Barring Board is considering whether to include the applicant in the children's barred list in pursuance of paragraph 3 or 5 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
113CBSuitability information relating to protected adults
(1)
In such cases as are prescribed, an enhanced criminal record certificate must also include suitability information relating to protected adults.
(2)
Suitability information relating to protected adults is—
(a)
whether the applicant is barred from regulated work with adults;
(b)
if the applicant is barred from such activity, such details as are prescribed of the circumstances in which the applicant became barred;
(c)
whether the Scottish Ministers are considering whether to list the individual in the adults' list;
(d)
whether the Independent Barring Board is considering whether to include the applicant in the adults' barred list in pursuance of paragraph 9 or 11 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
113CCSuitability information: supplementary
(1)
The Scottish Ministers may by order made by statutory instrument—
(a)
amend section 113CA for the purpose of altering the meaning of suitability information relating to children;
(b)
amend section 113CB for the purpose of altering the meaning of suitability information relating to protected adults.
(2)
Such an order is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(3)
Expressions used in sections 113CA and 113CB and in the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14) have the same meaning in those sections as in that Act, except that “prescribed” must be construed in accordance with section 125 of this Act.”.
30
Sections 113C to 113F are repealed.
31
In section 114—
(a)
in subsection (2), for “a Minister of the Crown” substitute “
a person mentioned in subsection (2A)
”
,
(b)
“(2A)
Any of the following persons may make a statement for the purposes of subsection (2)—
(a)
a Minister of the Crown;
(b)
a member of the Scottish Executive;
(c)
any other office-holder in the Scottish Administration; or
(d)
a nominee of any person mentioned in paragraphs (a) to (c).”,
(c)
in subsection (3), for “Sections 113A(3) to (6) and 113C to 113F” substitute “
Section 113A(3) to (6)
”
.
32
In section 116—
(a)
in subsection (2), for “a Minister of the Crown, or a person nominated by a Minister of the Crown,” substitute “
a person mentioned in subsection (2A)
”
,
(b)
“(2A)
Any of the following persons may make a statement for the purposes of subsection (2)—
(a)
a Minister of the Crown;
(b)
a member of the Scottish Executive;
(c)
any other office-holder in the Scottish Administration; or
(d)
a nominee of any person mentioned in paragraphs (a) to (c).”,
(c)
in subsection (3), for “113C to 113F” substitute “
113CA to 113CC
”
.
33
“(3)
An application under this section may, in particular, request a review of any information contained in a certificate by virtue of section 113B(4).
(4)
The Scottish Ministers, on receiving such a request, must ask the chief officer of the relevant police force who provided that information to reconsider whether the chief officer still thinks that the information concerned might be relevant for the purpose in respect of which it was requested.”.
34
In section 118—
(a)
in subsection (2A)(a), for “United Kingdom Passport Agency” substitute “
Identity and Passport Service
”
,
(b)
“(2B)
The Scottish Ministers may require an applicant to have fingerprints taken under subsection (2) only if they are not satisfied by other evidence provided under subsection (1) as to the applicant's identity.”,
(c)
“(3)
The Scottish Ministers must arrange the destruction of any fingerprints taken in pursuance of subsection (2) as soon as reasonably practicable after they have been used for the purpose mentioned in subsection (1).”.
35
In section 119A(2), the words from “; and” to the end of the subsection are repealed.
36
“—
“(i)
countersign applications under section 113A or 113B; or
(ii)
make declarations in relation to disclosure requests made under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14),”.
37
In section 120A—
(a)
in subsection (3)(b), for “included in any list mentioned in section 113C(3) or 113D(3)” substitute “
barred from regulated work with children or adults (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14))
”
,
(b)
in subsection (4)(b)(iii), after “applications” insert “
, or the making of declarations,
”
.
38
Section 121 is repealed.
39
In section 122—
(a)
in subsection (3)—
(i)
after “113B” insert “
, or make a disclosure under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14),
”
,
(ii)
after “application” insert “
or, as the case may be, made the declaration in relation to the disclosure request
”
,
(iii)
after “countersigned”, where it appears in paragraph (b), insert “
or, as the case may be, made the declaration
”
,
(b)
in subsection (4)(b)—
(i)
the words after “person” become sub-paragraph (i), and
(ii)
“; or
(ii)
has made or is likely to make a declaration in relation to a disclosure request made under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14)”.
40
“122BDelegation of functions of Scottish Ministers
(1)
The Scottish Ministers may, to such extent and subject to such conditions as they think appropriate, delegate any of their functions under this Part (other than excepted functions) to such person as they may determine.
(2)
An excepted function is a function—
(a)
relating to the making of regulations or orders;
(b)
relating to the publishing or revising of a code of practice;
(c)
relating to the laying of a code of practice before the Scottish Parliament;
(d)
relating to the determination of an appropriate fee under section 113B(5A) or 119(3); or
(e)
under section 125A.
(3)
A delegation under subsection (1) may be varied or revoked at any time.
(4)
No proceedings are competent against a person performing functions delegated under this section by reason of an inaccuracy in the information made available or provided to the person in accordance with section 119.”.
41
““office-holder in the Scottish Administration” has the same meaning as in the Scotland Act 1998 (c. 46);”.
Protection of Children (Scotland) Act 2003 (asp 5)
42
The whole Act (other than sections 13 and 16) is repealed.
Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5)
43
Section 24(1) of the Criminal Procedure (Amendment) (Scotland) Act 2004 is repealed.
Charities and Trustee Investment (Scotland) Act 2005 (asp 10)
44
Paragraph 15 of schedule 4 to the Charities and Trustee Investment (Scotland) Act 2005 is repealed.
Inquiries Act 2005 (c. 12)
45
Part 2 of Schedule 2 to the Inquiries Act 2005 is repealed.
Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10)
46
The following provisions of the Police, Public Order and Criminal Justice (Scotland) Act 2006 are repealed—
(a)
section 3(2)(d),
(b)
section 3(8), and
(c)
paragraph 14(2) of schedule 1.
SCHEDULE 5Index
Expression | Interpretation provision |
|---|---|
the 1995 Act | section 97(1) |
the 1997 Act | section 97(1) |
the 2001 Act | section 97(1) |
the adults' list | section 1(1)(b) |
F42barred from regulated roles | section 92 |
care service | section 97(1) |
charity | section 97(1) |
charity trustees | section 97(1) |
chief constable | section 97(1) |
chief officer of a relevant police force | section 97(5) |
child | section 97(1) |
the children's list | section 1(1)(a) |
community care service | section 94(4) |
competent application for removal from the list | section 25(3) |
conduct | section 97(1) |
F43confirmation of scheme membership | section 46(2) |
F44conviction, convicted (other than in section 14) | section 97(1) |
council | section 97(1) |
direct payment | section 94(4) |
disciplinary proceedings | section 97(1) |
F45Disclosure and Barring Service, DBS | section 97(1) |
F46. . . | F46. . . |
F46. . . | F46. . . |
F46. . . | F46. . . |
F46. . . | F46. . . |
F46. . . | F46. . . |
employment (and related words) | section 97(1) |
employment agency | section 97(1) |
employment business | section 97(1) |
exempted question | section 68(5) |
foster carer | section 96(1) |
harm | section 93(1) |
Health Board | section 97(1) |
Her Majesty's Inspectors of Schools | section 97(1) |
F47. . . | F47. . . |
legal proceedings | section 97(1) |
listed, listing (and related words) | section 1 |
Ministers | section 97(1) |
new vetting information | section 47(4) |
organisation | section 97(1) |
permitted purpose | section 67(3) |
personal data holder | section 64(2) |
personnel supplier | section 97(1) |
placed at risk of harm | section 93(2) |
police authority | section 97(1) |
police force | section 97(1) |
prescribed | section 97(1) |
protected adult | section 94 |
referral ground | section 2 |
registrar of dentists and dental care professionals | section 97(1) |
Registrar of health professionals | section 97(1) |
Registrar of nurses and midwives | section 97(1) |
F48registrar of pharmacists | section 97(1) |
F49regulated role | section 91(1) |
F50regulated role with adults | section 91(3) |
F51regulated role with children | section 91(2) |
relevant finding of fact | section 17(5) |
relevant functions | section 8(3) |
relevant inquiry | section 31(2) |
relevant inquiry report | section 31(3) |
relevant offence | section 32 |
relevant police force | section 97(5) |
relevant regulatory body | section 30(7) |
Scheme | section 44 |
scheme member | F52section 45(1)(a) |
scheme record | section 48 |
school | section 97(1) |
F46. . . | F46. . . |
F53. . . | F53. . . |
Special Health Board | section 97(1) |
staff transfer order | section 86(1) |
F54. . . | F54. . . |
F43type of regulated role | section 91(5) |
F54. . . | F54. . . |
vetting information | section 49(1) |
F54. . . | F54. . . |