Amendment and replacement of the 1974 Act in relation to pre-12 behaviour
39.Section 4 of the Act makes various amendments to the 1974 Act. In particular, it provides that “conviction”, when used in the 1974 Act, no longer applies to convictions for offences committed when the convicted person was aged under 12. It also provides that the offence ground having been accepted or established in or for the purposes of children’s hearing proceedings, in relation to behaviour which occurred when a person was aged under 12, no longer counts as a conviction for the purposes of that Act.
40.The effect of the amendments made by section 4 is that the 1974 Act no longer applies in relation to behaviour that occurred, prior to the change in the age of criminal responsibility, when a person was aged eight to 11. In addition, the 1974 Act will not apply to behaviour which occurs, after section 1 of the Act comes into force, when a person is aged eight to 11 (as there will be no conviction to become spent in such cases in future). Following the change in the age of criminal responsibility, therefore, the 1974 Act will not apply at all to pre-12 behaviour.
41.One of the effects of this is that the protection against self-disclosure of certain information provided by the 1974 Act falls away in relation to all previously covered pre-12 behaviour. This would mean that if, when applying for a job, a person did not disclose information about a conviction for an offence that they committed when under 12, and prior to section 1 of the Act coming into force, the employer might be able to dismiss them on this ground if the information subsequently came to light.
42.Sections 5 to 9 of the Act therefore make new provision about self-disclosure of information in relation to pre-12 behaviour. Sections 6 and 7, broadly speaking, provide protection against having to self-disclose certain information in certain circumstances.(31)
43.The information that is protected is information in relation to “relevant behaviour” and “circumstances ancillary to relevant behaviour”. Section 5 defines these terms. Subsection (1)(a) defines “relevant behaviour” in relation to situations arising prior to the change in the age of criminal responsibility (that is, a person being convicted of, or being given an alternative to prosecution in respect of, an offence which was committed when the person was aged under 12). Subsection (3) provides that the acceptance or establishment of the offence ground in or for the purposes of children’s hearings proceedings counts as a conviction for this purpose. Subsection (1)(b) defines “relevant behaviour” in relation to situations, arising after the change in the age of criminal responsibility, where suspected harmful behaviour by the child leads to various provisions in Part 4 of the Act being used. Subsection (2) provides some examples of “circumstances ancillary to relevant behaviour”. The purpose of defining “circumstances ancillary to relevant behaviour” is to extend the protection against self-disclosure to questions that don’t directly ask, for example, whether a person has a conviction, but relate to the wider circumstances of an offence and the answers to which would indirectly reveal the existence of the conviction.
44.Subsection (4) allows the Scottish Ministers to make regulations modifying the definitions of “relevant behaviour” and “circumstances ancillary to relevant behaviour” in subsection (1). For example, if a new power was created in relation to harmful behaviour by children aged under 12 in future, this power could be used to protect a child from having to subsequently disclose the fact that that power had been was used in relation to them. Regulations modifying subsection (1) are subject to the affirmative procedure (see section 82(3)(a)).
45.Section 6 makes provision in relation to the disclosure of information about relevant behaviour and circumstances ancillary to relevant behaviour in judicial proceedings (which is defined in subsection (3)). By virtue of subsection (1), evidence proving such behaviour or circumstances is inadmissible in judicial proceedings. Under subsection (2), a person cannot be asked any question in judicial proceedings which they would be unable to answer without revealing relevant behaviour or circumstances ancillary to such behaviour. If the person is asked such a question, they are not obliged to answer.
46.Section 7 provides protections in relation to non-judicial proceedings (including, for example, job applications). So, if a person who, prior to the change in the age of criminal responsibility, was convicted of an offence committed while they were under 12 is asked in a job application or interview if they have any convictions, they are not obliged to mention that conviction (subsection (1)(a)). And a person cannot be dismissed from a job by reason of such a conviction or for failing to disclose such a conviction (subsection (3)). Subsection (2) provides that legal requirements to disclose information do not extend to information about relevant behaviour or circumstances ancillary to such behaviour from legal requirements to disclose information (the effect being that such information need not be disclosed).
47.Section 8 sets out certain exceptions to the protections provided by sections 6 and 7 in connection with disclosure under the 1997 and 2007 Acts, including the review process established by sections 14 to 20 of this Act. In the specified circumstances, a person is not protected from having to, for example, answer questions about relevant behaviour and circumstances ancillary to such behaviour. See paragraphs 61, 68 and 70 for more detail on these exceptions.
48.Further, more general, exceptions to the protections provided by sections 6 and 7 are set out in section 9.
49.Subsection (1) of section 9 provides that section 6 does not apply in the types of judicial proceedings listed in subsection (2). These include, for example, criminal proceedings. Evidence relating to relevant behaviour and circumstances ancillary to such behaviour can therefore be admitted in such proceedings (and a person can be asked, and required to answer, questions about such behaviour or circumstances in such proceedings). Subsection (3) allows evidence about such behaviour or circumstances to be admitted in judicial proceedings not listed in subsection (2) provided that justice cannot otherwise be done. (32)
50.Subsection (4) of section 9 gives the Scottish Ministers power to make regulations adjusting the list of proceedings set out in subsection (2) (paragraph (a)) or otherwise providing that section 6 does not apply in proceedings specified in the regulations to the extent and for the purposes set out in the regulations (paragraph (b)).
51.Regulations under subsection (4) may also include provision setting out exceptions to the protection provided by section 7 (paragraphs (c) and (d)). Again, the effect of any such provision would be to allow questions to be asked, and require answers to be given, in relation to relevant behaviour and circumstances ancillary to such behaviour in non-judicial contexts listed in the regulations.(33)
52.Regulations under section 9(4) are subject to the affirmative procedure (see section 82(3)(b)).
The provision made in sections 6 and 7 is broadly equivalent to the provision made in section 4(1) to (3) of the 1974 Act.
These exceptions are broadly equivalent to the provision made in section 7(2) and (3) of the 1974 Act.
The power conferred by section 9(4) is broadly equivalent to the powers conferred by sections 4(4) and 7(4) of the 1974 – these are the sections under which the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 is made.