Draft Order laid before Parliament under section 10(2) of the Rehabilitation of Offenders Act 1974, for approval by resolution of each House of Parliament.
2013 No.
The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013
Made
Coming into force in accordance with article 1(2)
The Secretary of State, in exercise of the powers conferred by sections 4(4), 7(4) and 10(1) of, and paragraphs 4 and 6(4) of Schedule 2 to, the Rehabilitation of Offenders Act 19741, makes the following Order.
A draft of this Order was laid before Parliament and approved by a resolution of each House of Parliament in accordance with section 10(2) of that Act.
Citation, commencement and extent1
1
This Order may be cited as the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013.
2
This Order comes into force on the seventh day after the day on which it is made.
3
This Order extends to England and Wales only.
Amendments of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 19752
The Rehabilitation of Offenders Act 1974 (Exceptions) Order 19752 is amended as set out in articles 3 to 12 below.
Amendments of article 23
1
Article 23 is amended as follows.
2
In paragraph (1), after the definition of “payment services” insert—
“protected caution” means a caution of the kind described in article 2A(1);
“protected conviction” means a conviction of the kind described in article 2A(2);
3
Omit paragraph (2).
4
Before paragraph (3) insert—
2A
Nothing in this Order applies in relation to a conviction for a service offence which is not a recordable service offence; and for this purpose—
a
b
“recordable service offence” means an offence which is a recordable service offence within the meaning of the Police and Criminal Evidence Act 1984 (Armed Forces) Order 20096.
Insertion of new article 2A4
After article 2 insert—
2A
1
For the purposes of this Order, a caution is a protected caution if it was given to a person for an offence other than a listed offence and—
a
where the person was under 18 years at the time the caution was given, two years or more have passed since the date on which the caution was given; or
b
where the person was 18 years or over at the time the caution was given, six years or more have passed since the date on which the caution was given.
2
For the purposes of this Order, a person’s conviction is a protected conviction if the conditions in paragraph (3) are satisfied and—
a
where the person was under 18 years at the time of the conviction, five years and six months or more have passed since the date of the conviction; or
b
where the person was 18 years or over at the time of the conviction, 11 years or more have passed since the date of the conviction.
3
The conditions referred to in paragraph (2) are that—
a
the offence of which the person was convicted was not a listed offence;
b
no sentence mentioned in paragraph (4) was imposed in respect of the conviction; and
c
the person has not been convicted of any other offence at any time.
4
The sentences referred to in paragraph (3)(b) are—
a
a custodial sentence, and
b
a sentence of service detention,
within the meaning of section 5(8) of the Act, as to be substituted by section 139(1) and (4) of the Legal Aid, Sentencing and Punishment of Offenders Act 20127.
5
In paragraphs (1) and (3)(a) “listed offence” means—
a
an offence under section 67(1A) of the Medicines Act 19688;
b
an offence under any of sections 126 to 129 of the Mental Health Act 19839;
c
an offence specified in the Schedule to the Disqualification from Caring for Children (England) Regulations 200210;
d
an offence specified in Schedule 15 to the Criminal Justice Act 200311;
e
an offence under section 44 of, or under paragraph 4 of Schedule 1 or paragraph 4 of Schedule 4 to, the Mental Capacity Act 200512;
f
an offence under section 7, 9 or 19 of the Safeguarding Vulnerable Groups Act 200613;
g
an offence specified in section 17(3)(a), (b) or (c) of the Health and Social Care Act 200814, apart from an offence under section 76 of that Act;
h
an offence specified in the Schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 200915;
i
an offence specified in Schedule 2 or 3 of the Childcare (Disqualification) Regulations 200916;
j
an offence superseded (whether directly or indirectly) by any offence falling within paragraphs (a) to (i);
k
an offence of—
i
attempting or conspiring to commit any offence falling within paragraphs (a) to (j), or
ii
inciting or aiding, abetting, counselling or procuring the commission of any such offence,
or an offence under Part 2 of the Serious Crime Act 200717 (encouraging or assisting crime) committed in relation to any such offence;
l
an offence under the law of Scotland or Northern Ireland, or any country or territory outside the United Kingdom, which corresponds to any offence under the law of England and Wales falling within paragraphs (a) to (k);
m
an offence under section 42 of the Armed Forces Act 200618 in relation to which the corresponding offence under the law of England and Wales (within the meaning of that section) is an offence falling within paragraphs (a) to (k); or
Amendments of article 35
Article 322 is amended as follows—
a
the existing text is renumbered as paragraph (1);
b
for “Neither” substitute “Subject to paragraph (2), neither”;
c
in sub-paragraph (a)—
i
in paragraph (ii), after “Schedule 1”, in the first place, insert “apart from one specified in paragraph 6, 16, 17, 18, 18A, 31, 32, 35 or 36” and omit “35, 36,”;
ii
in paragraph (iii), after “Schedule 1” insert “apart from one specified in paragraph 1 or 8”;
iii
in paragraph (iv), after “Order” insert “apart from one specified in paragraph 1 or 3”;
d
omit sub-paragraph (b);
e
after paragraph (1) insert—
2
Paragraph (1) does not apply in relation to a protected caution or a protected conviction.
Insertion of new article 3ZA6
After article 3 insert—
3ZA
Neither section 4(2) of, nor paragraph 3(3) of Schedule 2 to, the Act applies in relation to—
a
any question asked by or on behalf of any person, in the course of the duties of his office or employment, in order to assess the suitability—
i
of the person to whom the question relates for an office or employment specified in paragraph 6, 16, 17, 18, 18A, 31, 32, 35 or 36 of Part II of that Schedule or for any other work specified in paragraph 35 or 36 of that Part of that Schedule; or
ii
of the person to whom the question relates or of any other person to pursue an occupation specified in paragraph 1 or 8 of Part III of that Schedule or to pursue it subject to a particular condition or restriction; or
iii
of the person to whom the question relates or of any other person to hold a licence, certificate or permit of a kind specified in paragraph 1 or 3 of Schedule 2 to this Order or to hold it subject to a particular condition or restriction,
where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed; or
b
any question asked by or on behalf of any person, in the course of his duties as a person employed in the service of the Crown, the United Kingdom Atomic Energy Authority or the FCA or the PRA in order to assess, for the purpose of safeguarding national security, the suitability of the person to whom the question relates or of any other person for any office or employment where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed for the purpose of safeguarding national security.
Amendments of article 3A7
Article 3A24 is amended as follows—
a
in paragraph (1), for “Neither” substitute “Subject to paragraph (1A), neither”;
b
after that paragraph insert—
1A
Paragraph (1) does not apply in relation to a protected caution or a protected conviction.
Amendments of article 48
Article 425 is amended as follows—
a
the existing text is renumbered as paragraph (1);
b
for “Neither” substitute “Subject to paragraph (2), neither”;
c
in sub-paragraph (b)—
i
for “or Part III of the said Schedule 1” substitute “of that Schedule apart from one specified in paragraph 6, 16, 17, 18, 18A, 31, 32, 35 or 36 or in Part III of that Schedule apart from one specified in paragraph 1 or 8”; and
ii
omit “35, 36,”;
d
omit sub-paragraph (c);
e
after paragraph (1) insert—
2
Paragraph (1) does not apply in relation to a protected caution or a protected conviction.
Insertion of new article 4ZA9
After article 4 insert—
4ZA
Neither paragraph (b) of section 4(3) of, nor paragraph 3(5) of Schedule 2 to, the Act applies in relation to—
a
any office, employment or occupation specified in paragraph 6, 16, 17, 18, 18A, 31, 32, 35 or 36 of Part II of that Schedule or paragraph 1 or 8 of Part III of that Schedule or any other work specified in paragraph 35 or 36 of Part II of that Schedule;
b
any action taken for the purpose of safeguarding national security.
Amendment of article 610
1
Article 626 is amended as follows.
2
In paragraph (2)—
a
after “3”, in the first place, insert “, 3ZA”;
b
after “apply” insert “in relation to the caution or conviction in question, or paragraph 3ZA would apply,”.
3
In paragraph (4)—
a
after “4”, in the first place, insert “or 4ZA”;
b
for “article 4 or 5 would apply” insert “article 4 or 4ZA would apply in relation to the caution or conviction in question, or article 5 would apply.”.
Amendment of Schedule 111
1
Schedule 1 is amended as follows.
2
In Part I—
a
in paragraph 2, omit “advocate (in Scotland),”;
b
omit paragraph 9.
3
In Part II—
a
omit paragraph 5;
b
for paragraph 6 substitute—
6
Constables and persons appointed as police cadets to undergo training with a view to becoming constables and naval, military and air force police.
6A
Persons employed for the purposes of, or to assist the constables of, a police force established under any enactment.
c
d
in paragraph 8 omit “or section 9 of the Police (Scotland) Act 196729”.
4
In Part III—
a
in paragraph 6—
i
in sub-paragraph (b) for “a nursing home” to the end substitute “a regulated activity in respect of which a person is required to be registered under Part 1 of the Health and Social Care Act 2008”30;
ii
omit sub-paragraph (c);
b
omit paragraph 7.
Amendment of Schedule 312
1
Schedule 3 is amended as follows.
2
Omit sub-paragraphs (b) and (c) of paragraph 11.
3
After paragraph 11, insert—
11A
Proceedings in respect of an application for, or suspension or cancellation of, registration in respect of a regulated activity under Part 1 of the Health and Social Care Act 2008.
4
Omit paragraph 12.
Signed by authority of the Secretary of State
(This note is not part of the Order)