Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016

Remedial orders and publicity orders

30 Power to order offence to be remedied or publicised

(1) This section applies where a care provider is convicted by a court of an offence under section 27(1).

(2) The court may, instead of or in addition to dealing with the care provider in any other way, make either or both of the following orders—

(a) a remedial order,

(b) a publicity order.

(3) A “remedial order” is an order requiring the care provider to take specified steps to remedy one or more of the following—

(a) the breach mentioned in section 27(1)(b) (the “relevant breach”),

(b) any matter that appears to the court to have resulted from the relevant breach and to be connected with the ill-treatment or neglect,

(c) any deficiency in the care provider’s policies, systems or practices of which the relevant breach appears to the court to be an indication.

(4) A “publicity order” is an order requiring the care provider to publicise in a specified manner—

(a) the fact that the care provider has been convicted of the offence,

(b) specified particulars of the offence,

(c) the amount of any fine imposed,

(d) the terms of any remedial order made.

(5) An order made under subsection (2) is to be taken to be a sentence for the purposes of an appeal.

(6) The court may make an order under subsection (2)—

(a) at its own instance, or

(b) on the motion of the prosecutor.

(7) An order made under subsection (2) must specify a period (the “compliance period”) within which the requirements specified in the order must be complied with.

(8) On an application by the care provider in respect of whom the order under subsection (2) was made, the court may—

(a) extend the compliance period,

(b) vary the steps specified in a remedial order.

(9) An application under subsection (8) must be made before the end of the compliance period.

(10) A care provider who fails to comply with an order made under subsection (2) commits an offence.

(11) A care provider who commits an offence under subsection (10) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum,

(b) on conviction on indictment, to a fine.

31 Remedial and publicity orders: prosecutor’s right of appeal

(1) The Criminal Procedure (Scotland) Act 1995 is amended in accordance with this section.

(2) In section 108 (Lord Advocate’s right of appeal against disposal)—

(a) in subsection (1), after paragraph (cd) insert—

“(ce) a decision under section 30(2) of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 not to make a remedial order,

(cf) a decision under section 30(2) of that Act not to make a publicity order,”,

(b) in subsection (2)(b)(ii), for the words “or (cd)” substitute “, (cd), (ce) or (cf)”.

(3) In section 175 (right of appeal from summary proceedings)—

(a) in subsection (4), after paragraph (cd) insert—

“(ce) a decision under section 30(2) of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 not to make a remedial order,

(cf) a decision under section 30(2) of that Act not to make a publicity order,”,

(b) in subsection (4A)(b)(ii), for “or (cd)” substitute “ , (cd), (ce) or (cf)”.