Search Legislation

Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018

 Help about what version

What Version

 Help about advanced features

Advanced Features

 Help about opening options

Opening Options

Changes over time for: Part 3

 Help about opening options

Alternative versions:

Changes to legislation:

There are currently no known outstanding effects for the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018, Part 3 . Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the editorial team. Please see ‘Frequently Asked Questions’ for details regarding the timescales for which new effects are identified and recorded on this site.

Part 3 SDisregarding certain convictions for historical sexual offences

5Application to have conviction for historical sexual offence disregardedS

(1)A person who has been convicted of a historical sexual offence may apply to the Scottish Ministers for the conviction to be disregarded.

(2)An application made under subsection (1) must be in writing and must include—

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

(b)in so far as known to the applicant, the applicant's name and address at the time of the conviction,

(c)in so far as known to the applicant, the time when and place where the conviction took place and the relevant case number,

(d)in so far as known to the applicant, the nature and circumstances of the offence and the sentence imposed,

(e)any other information which the Scottish Ministers may require.

(3)An application made under subsection (1) may also include any other information which the applicant wishes the Scottish Ministers to consider when determining the application.

Commencement Information

I1S. 5 in force at 15.10.2019 by S.S.I. 2019/205, reg. 2

6Application for disregard: further informationS

(1)The Scottish Ministers may request any person to make representations, or to provide further information, in relation to an application made under section 5(1).

(2)A person so requested is authorised to make such representations or, as the case may be, to provide such information for the purposes of assisting the Scottish Ministers to determine the application.

Commencement Information

I2S. 6 in force at 15.10.2019 by S.S.I. 2019/205, reg. 2

7Determination of application for disregardS

(1)When determining an application made under section 5(1), the Scottish Ministers must in particular—

(a)consider all representations and other information included in the application,

(b)consider all representations made or other information provided in pursuance of section 6 in relation to the application, and

(c)except where it appears to them that the offence to which the application relates is not a historical sexual offence, take reasonable steps to obtain (and, where available, consider) any record of—

(i)the investigation of the conduct which led to the conviction, and

(ii)any subsequent proceedings relating to the conduct.

(2)Having done so, the Scottish Ministers must—

(a)unless subsection (3) applies, determine that the conviction in respect of which the application is made is to be disregarded, or

(b)where subsection (3) applies, determine that the conviction is not to be disregarded.

(3)This subsection applies if it appears to the Scottish Ministers—

(a)that the offence for which the applicant was convicted is not a historical sexual offence, or

(b)that the conduct constituting the historical sexual offence, if occurring in the same circumstances, would have been an offence on the day on which section 3 came into force.

(4)The Scottish Ministers must—

(a)record their determination, and the reasons for it, in writing,

(b)provide notice of their determination, and the reasons for it, to the applicant, and

(c)where they have determined that a conviction for a historical sexual offence is to be disregarded, inform the applicant that references to the conviction will be removed in pursuance of section 10.

(5)Where the Scottish Ministers determine that a conviction for a historical sexual offence is to be disregarded, the disregard takes effect from the day falling 14 days after notice of their determination is given.

Commencement Information

I3S. 7 in force at 15.10.2019 by S.S.I. 2019/205, reg. 2

8AppealsS

(1)This section applies where the Scottish Ministers have determined that a conviction in respect of which an application is made under section 5(1) is not to be disregarded.

(2)The applicant may, with the permission of the sheriff, appeal against the determination.

(3)When deciding an appeal, the sheriff may not take account of any representations which were, or other information which was, not available to the Scottish Ministers when determining the application.

(4)On an appeal, the sheriff must—

(a)unless subsection (5) applies, order that the conviction in respect of which the appeal is made is to be disregarded, or

(b)where subsection (5) applies, dismiss the appeal.

(5)This subsection applies if it appears to the sheriff—

(a)that the offence for which the appellant was convicted is not a historical sexual offence, or

(b)that the conduct constituting the historical sexual offence, if occurring in the same circumstances, would have been an offence on the day on which section 3 came into force.

(6)The sheriff's decision on an appeal is final.

(7)Where the sheriff orders that a conviction for a historical sexual offence is to be disregarded, the disregard takes effect from the day falling 14 days after the sheriff's order is made.

(8)An appeal under this section is to be made—

(a)to a sheriff of the sheriffdom in which the appellant resides, or

(b)where no sheriff has jurisdiction under paragraph (a), to a sheriff of the sheriffdom of Lothian and Borders at Edinburgh.

Commencement Information

I4S. 8 in force at 15.10.2019 by S.S.I. 2019/205, reg. 2

9Effect of disregardS

(1)This section applies where a disregard for a conviction for a historical sexual offence has taken effect (see sections 7(5) and 8(7)).

(2)The person who was convicted of the offence is to be treated for all purposes as not having—

(a)committed the offence,

(b)been charged with, or prosecuted for, the offence,

(c)been convicted of the offence, or

(d)been sentenced for the offence.

(3)In particular—

(a)no evidence is admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Scotland to prove that the person has done, or undergone, anything within subsection (2), and

(b)the person is not, in any such proceedings, to be asked (and, if asked, is not to be required to answer) any question relating to the person's past which cannot be answered without acknowledging or referring to the conviction or any circumstances ancillary to it.

(4)Where a question is put to a person, other than in such proceedings, seeking information with respect to the previous convictions, offences, conduct or circumstances of any person—

(a)the question is to be treated as not relating to any disregarded conviction, or any circumstances ancillary to it (and the answer to the question may be framed accordingly), and

(b)the person questioned is not to be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose that conviction or any circumstance ancillary to it in answering the question.

(5)Any obligation imposed on any person by any enactment or rule of law, or by the provisions of any agreement or arrangement, to disclose any matters to any other person is not to extend to requiring the disclosure of a disregarded conviction or any circumstances ancillary to it.

(6)In this section, “proceedings before a judicial authority” includes, in addition to any court proceedings, proceedings before any tribunal, body or person having power by virtue of any enactment, rule of law, arbitration agreement, rules, custom or practice—

(a)to determine any question affecting the rights, privileges, obligations or liabilities of any person, or

(b)to receive evidence affecting the determination of any such question.

(7)For the purposes of this section, circumstances ancillary to a conviction are any circumstances of—

(a)the offence which was the subject of the conviction,

(b)the conduct constituting the offence,

(c)any process or proceedings preliminary to the conviction,

(d)any sentence imposed in respect of the conviction,

(e)any proceedings (whether by way of appeal or otherwise) for reviewing the conviction or sentence,

(f)anything done in pursuance of, or undergone in compliance with, any such sentence.

Commencement Information

I5S. 9 in force at 15.10.2019 by S.S.I. 2019/205, reg. 2

10Removal of disregarded convictions from official recordsS

(1)Where a disregard for a conviction for a historical sexual offence has taken effect (see sections 7(5) and 8(7)), the Scottish Ministers must—

(a)where they are the relevant record keeper in relation to any official records held by them, remove all references to the disregarded conviction contained in those official records (and, where the disregard has effect by virtue of section 8(7), give notice of the removal to the person who has the disregarded conviction), and

(b)require every other relevant record keeper to remove all references to the disregarded conviction contained in official records held by the keeper.

(2)A relevant record keeper issued with a requirement under subsection (1)(b) must—

(a)comply with the requirement as soon as reasonably practicable (but no earlier than the day on which the disregard takes effect), and

(b)give notice of the removal to the person who has the disregarded conviction.

(3)The Scottish Ministers may, by regulations, prescribe the manner in which references to disregarded convictions are to be removed from official records in pursuance of this section.

(4)Regulations may, in particular, provide that removal from records means recording with the details of the conviction—

(a)the fact that it is a disregarded conviction, and

(b)the effect of it being a disregarded conviction.

(5)A “relevant record keeper” means such person as may be prescribed in regulations made by the Scottish Ministers (and may, in particular, include the Scottish Ministers acting in their capacity as the holder of official records of a type so prescribed).

Commencement Information

I6S. 10 in force at 15.10.2019 by S.S.I. 2019/205, reg. 2

11AdvisersS

(1)The Scottish Ministers may appoint persons to advise or assist them on the determination of applications made under section 5(1).

(2)The Scottish Ministers may provide to an appointed person, or authorise that person to access, such information contained in or relating to such applications as they consider relevant.

(3)The Scottish Ministers may pay an appointed person such allowances and expenses as they consider appropriate.

Commencement Information

I7S. 11 in force at 15.10.2019 by S.S.I. 2019/205, reg. 2

Back to top

Options/Help

Print Options

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Notes

Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources