The Management of Offenders (Scotland) Act 2019 (Commencement No. 4 and Saving Provision) Regulations 2020

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations bring into force various provisions of the Management of Offenders (Scotland) Act 2019 (“the 2019 Act”). The Bill for the 2019 Act received Royal Assent on 30 July 2019. Sections 62, 63 and 64 came into force on the following day. The provisions being commenced by this instrument relate to the Rehabilitation of Offenders Act 1974 (“the 1974 Act”). The 1974 Act sets out rules for determining when a conviction is “spent” for the purposes of that Act. The effect of a conviction being spent is that the protections set out in section 4 of the 1974 Act apply in respect of that conviction.

Regulation 2 of these Regulations appoints 30 November 2020 for the coming into force of the provisions of the 2019 Act specified in the schedule of these Regulations. Those are: sections 17 to 31, 33 to 38 and schedule 2 of the 2019 Act.

Sections 17 to 30, 38 and schedule 2 of the 2019 Act are commenced by this instrument. Those provisions amend the 1974 Act to change the length of time it takes, and the rules which apply, before certain convictions become spent. The provisions also make changes to the terminology used in the 1974 Act, for instance the 1974 Act will refer to “disclosure period” instead of “rehabilitation period”.

Section 31 of the 2019 Act is commenced by this instrument. Section 31 provides new powers for the Scottish Ministers in relation to alternatives to prosecution (“AtP”) under the 1974 Act. The powers will enable the Scottish Ministers to amend the list of circumstances in which a person is given an AtP for the purposes of the 1974 Act and also to amend, remove or add provision specifying when an AtP will become spent.

Sections 33 to 36 of the 2019 Act are commenced by this instrument. A conviction cannot become spent if an “excluded sentence” is imposed in respect of that conviction (see section 5(1) of the 1974 Act for the list of excluded sentences). Section 33 of the 2019 Act will enable the Scottish Ministers to make regulations allowing a person who has a conviction for which a relevant excluded sentence was imposed to apply to be treated as a protected person in respect of that conviction and for that conviction to be treated as spent. A “relevant excluded sentence” is one listed in section 33(4) of the 2019 Act. Sections 34 to 36 of the 2019 Act provide further detail in connection with the exercise of this power.

Section 37 of the 2019 Act is commenced by this instrument. Section 37 sets out transitional provision related to the amendments made to the 1974 Act by Part 2 of the 2019 Act. By virtue of section 37(1) and (2), the changes to disclosure periods made by the provisions being commenced by this instrument will apply in relation to convictions dated, and sentences imposed, before 30 November 2020 (as well as to convictions dated, and sentences imposed, on and after 30 November 2020). Section 37(4) of the 2019 Act says that the 1974 Act applies as if the amendments mentioned in section 37(1) and (2) had always had effect. However, this has to be read subject to section 37(5) to (9) of the 2019 Act. This means that if, by virtue of section 37(4), a person would have been a protected person before 30 November 2020, and if their conviction would have been spent before that date, they are not in fact to be treated as a protected person, and their conviction is not to be treated as spent, until 30 November 2020. These provisions prevent the amendments made by Part 2 of the 2019 Act from having retrospective application.

Regulation 3 of these Regulations makes saving provision. The effect of regulation 3 is that, until section 52 of the Air Weapons and Licensing (Scotland) Act 2015 is commenced, for the purposes of any “relevant matter”, the amendments made by Part 2 of the 2019 Act have no effect in relation to a conviction. This means that the changes to the disclosure periods applicable to sentences and to convictions do not apply in respect of determining whether or not a conviction is spent for the purposes of any relevant matter. Instead, the 1974 Act will continue to apply to relevant matters as it did immediately prior to 30 November 2020. “Relevant matters” are applications under the Licensing (Scotland) Act 2005 (“the 2005 Act”), determinations of such applications, proceedings before Licensing Boards under the 2005 Act and any appeal of a decision of a Licensing Board.