Protection of Freedoms Bill (HL Bill 128)

(v) omit paragraph (c) and the word “or” before it,

(b) in subsection (2) for “, (b) or (c)” substitute “or (b)”,

(c) after subsection (2) insert—

“(2A) The duty in subsection (2) does not apply in relation to an
5interested supervisory authority if the Secretary of State is
satisfied that the authority already has the information
concerned.”,

(d) in subsection (3)(a) for the words from “if” to “occurs” substitute “of
any circumstance mentioned in subsection (1)”,

(e) 10in subsection (5)—

(i) after “withdrawn if” insert “—

“(a)”,

(ii) for the words from “if”, where it appears for the second time, to
“occurs” substitute “of any circumstance mentioned in
15subsection (1)”, and

(iii) at the end insert “, or

“(b) the Secretary of State cancels the application on either of
the following grounds—

(i) that the supervisory authority has not answered,
20within such reasonable period as was required
by the Secretary of State, a request from the
Secretary of State as to whether the supervisory
authority still wishes to be notified of any
circumstance mentioned in subsection (1) in
25relation to the person, or

(ii) that the notification is not required in connection
with the exercise of a function of the supervisory
authority mentioned in section 45(7).”, and

(f) in subsection (8) for “prescribe” substitute “determine”.

(5) 30In section 50 of that Act (provision of information to supervisory authorities)—

(a) in subsection (2) for “must” substitute “may (whether on an application
by the authority or otherwise)”,

(b) in subsection (3)—

(i) in paragraph (b), after “the authority” insert “which is
35mentioned in section 45(7)”, and

(ii) for the words from “or information” to “occurred” substitute “or
of any circumstance mentioned in section 48(1) or 49(1)”, and

(c) after subsection (3) insert—

“(4) A supervisory authority may apply to ISA under this section
40only if the information is required in connection with the
exercise of a function of the supervisory authority which is
mentioned in section 45(7).

(5) The Secretary of State may determine the form, manner and
contents of an application for the purposes of this section.”

77 45Minor amendments

(1) In the Policing and Crime Act 2009 omit—

(a) section 87(2) (which, if commenced, would insert sections 34A to 34C
into the Safeguarding Vulnerable Groups Act 2006 in connection with
the notification of proposals to include persons in barred lists), and

(b) section 89(6) (which, if commenced, would amend the power of the
5Secretary of State in the Act of 2006 to examine records of convictions
or cautions in connection with barring decisions).

(2) In section 39 of the Safeguarding Vulnerable Groups Act 2006 (duty of local
authorities to refer)—

(a) in subsection (1)—

(i) 10for “must” substitute “may”, and

(ii) omit “prescribed”,

(b) in subsection (4)—

(i) in paragraph (a), for “engaged or may engage” substitute “or
has been, or might in future be, engaged”,

(ii) 15also in paragraph (a), omit “or controlled activity”, and

(iii) in paragraph (b) for “, 2, 7 or 8” substitute “or 7”,

(c) in subsection (5) omit “prescribed”, and

(d) in the heading for “duty” substitute “power”.

(3) In section 50A(1) of that Act (power for ISA to provide information to the police
20for use for certain purposes), after paragraph (b), insert—

“(c) the appointment of persons who are under the direction and
control of the chief officer,

(d) any prescribed purpose”.

(4) After section 50A(1) of that Act insert—

“(1A) 25ISA must, for use for any of the purposes mentioned in subsection (1),
provide to any chief officer of police who has requested it a barred list
or information as to whether a particular person is barred.

(1B) ISA may, for use for the purposes of the protection of children or
vulnerable adults, provide to a relevant authority any information
30which ISA reasonably believes to be relevant to that authority.

(1C) ISA must, for use for the purposes of the protection of children or
vulnerable adults, provide to any relevant authority who has requested
it information as to whether a particular person is barred.”

(5) After section 50A(3) of that Act insert—

“(4) 35In this section “relevant authority” means—

(a) the Secretary of State exercising functions in relation to prisons,
or

(b) a provider of probation services (within the meaning given by
section 3(6) of the Offender Management Act 2007).”

(6) 40After paragraph 5 of Schedule 4 to that Act (regulated activity relating to
children) insert—

“Guidance

5A (1) The Secretary of State must give guidance for the purpose of
assisting regulated activity providers and personnel suppliers in
45deciding whether supervision is of such a kind that, as a result of

paragraph 1(2B)(b), 2(3A) or 2(3B)(b), the person being supervised
would not be engaging in regulated activity relating to children.

(2) Before giving guidance under this paragraph, the Secretary of State
must consult the Welsh Ministers.

(3) 5The Secretary of State must publish guidance given under this
paragraph.

(4) A regulated activity provider or a personnel supplier must, in
exercising any functions under this Act, have regard to guidance for
the time being given under this paragraph.”

10Corresponding amendments relating to Northern Ireland

78 Corresponding amendments in relation to Northern Ireland

Schedule 7 (which makes corresponding amendments in relation to Northern
Ireland about the safeguarding of vulnerable groups) has effect.

CHAPTER 2 Criminal records

15Safeguards in relation to certificates

79 Restriction on information provided to certain persons

(1) Omit section 93 of the Policing and Crime Act 2009 (which, if commenced,
would insert section 112(2A) into the Police Act 1997 requiring copies of certain
criminal conviction certificates to be given to employers etc.).

(2) 20Omit—

(a) section 113A(4) of the Police Act 1997 (requirement to send copy of
criminal record certificate to registered person), and

(b) section 113B(5) and (6) of that Act (requirement to give relevant
information, and copy of enhanced criminal record certificate to
25registered person).

(3) After section 120AB of the Police Act 1997 (procedure for certain cancellations
or suspensions of registration) insert—

“120AC Registered persons: information on progress of an application

(1) The Secretary of State must, in response to a request from a person who
30is acting as the registered person in relation to an application under
section 113A or 113B, inform that person whether or not a certificate has
been issued in response to the application.

(2) Subsections (3) and (4) apply if, at the time a request is made under
subsection (1), a certificate has been issued.

(3) 35In the case of a certificate under section 113A, if it was a certificate
stating that there is no relevant matter recorded in central records, the
Secretary of State may inform the person who made the request that the
certificate was such a certificate.

(4) In the case of a certificate under section 113B, if it was a certificate—

(a) stating that there is no relevant matter recorded in central
records and no information provided in accordance with
subsection (4) of that section, and

(b) 5if section 113BA(1) or 113BB(1) applies to the certificate,
containing no suitability information indicating that the person
to whom the certificate is issued—

(i) is barred from regulated activity relating to children or
to vulnerable adults, or

(ii) 10is subject to a direction under 128 of the Education and
Skills Act 2008 or section 167A of the Education Act
2002,

the Secretary of State may inform the person who made the request that
the certificate was such a certificate.

(5) 15If no certificate has been issued, the Secretary of State must inform the
person who made the request of such other matters relating to the
processing of the application as the Secretary of State considers
appropriate.

(6) Subject to subsections (2) to (4), nothing in this section permits the
20Secretary of State to inform a person who is acting as the registered
person in relation to an application under section 113A or 113B of the
content of any certificate issued in response to the application.

(7) The Secretary of State may refuse a request under subsection (1) if it is
made after the end of a prescribed period beginning with the day on
25which the certificate was issued.

(8) In this section—

• “central records” and “relevant matter” have the same meaning as
  in section 113A,

• “suitability information” means information required to be
  30included in a certificate under section 113B by virtue of section
  113BA or 113BB.

(9) Expressions in subsection (4)(b) and in the Safeguarding Vulnerable
Groups Act 2006 have the same meaning in that paragraph as in that
Act.

120AD 35 Registered persons: copies of certificates in certain circumstances

(1) Subsection (2) applies if—

(a) the Secretary of State gives up-date information in relation to a
criminal record certificate or enhanced criminal record
certificate,

(b) 40the up-date information is advice to apply for a new certificate
or (as the case may be) request another person to apply for such
a certificate, and

(c) the person whose certificate it is in respect of which the up-date
information is given applies for a new criminal record
45certificate or (as the case may be) enhanced criminal record
certificate.

(2) The Secretary of State must, in response to a request made within the
prescribed period by the person who is acting as the registered person

in relation to the application, send to that person a copy of any
certificate issued in response to the application if the registered
person—

(a) has counter-signed the application or transmitted it to the
5Secretary of State under section 113A(2A) or 113B(2A),

(b) has informed the Secretary of State that the applicant for the
new certificate has not, within such period as may be
prescribed, sent a copy of it to a person of such description as
may be prescribed, and

(c) 10no prescribed circumstances apply.

(3) The power under subsection (2)(b) to prescribe a description of person
may be exercised to describe the registered person or any other person.

(4) In this section “up-date information” has the same meaning as in
section 116A.”

80 15Minimum age for applicants for certificates or to be registered

(1) In sections 112(1), 113A(1), 113B(1), 114(1) and 116(1) of the Police Act 1997
(applications for certificates), before the word “and” at the end of paragraph
(a), insert—

“(aa) is aged 16 or over at the time of making the application,”.

(2) 20In section 120(4) of that Act (registered persons)—

(a) in paragraph (b)—

(i) after “person” insert “who is”, and

(ii) after “enactment” insert “and who, in the case of an individual,
is aged 18 or over”, and

(b) 25in paragraph (c) after “individual” insert “aged 18 or over”.

81 Additional grounds for refusing an application to be registered

After subsection (3) of section 120AA of the Police Act 1997 (refusal, etc. of
registration on grounds not related to disclosure) insert—

“(4) Subsection (6) applies if an application is made under section 120 by an
30individual who—

(a) has previously been a registered person; and

(b) has been removed from the register (otherwise than at that
individual’s own request).

(5) Subsection (6) also applies if an application is made under section 120
35by a body corporate or unincorporate which—

(a) has previously been a registered person; and

(b) has been removed from the register (otherwise than at its own
request).

(6) The Secretary of State may refuse the application.”

82 40Enhanced criminal record certificates: additional safeguards

(1) In subsection (4) of section 113B of the Police Act 1997 (enhanced criminal
record certificates: requests by the Secretary of State to chief officers for
information)—

(a) for “the chief officer of every relevant police force” substitute “any
relevant chief officer”,

(b) omit “, in the chief officer’s opinion”,

(c) in paragraph (a), for “might” substitute “the chief officer reasonably
5believes to”, and

(d) in paragraph (b), at the beginning insert “in the chief officer’s opinion,”.

(2) After subsection (4) of that section of that Act insert—

“(4A) In exercising functions under subsection (4) a relevant chief officer
must have regard to any guidance for the time being published by the
10Secretary of State.”

(3) In subsection (9) of that section of that Act—

(a) before the definition of “relevant police force” insert—

• ““relevant chief officer” means any chief officer of a police
  force who is identified by the Secretary of State for the
  15purposes of making a request under subsection (4).”,
  and”

(b) omit the definition of “relevant police force”.

(4) After section 117(1) of that Act (disputes about accuracy of certificates) insert—

“(1A) Where any person other than the applicant believes that the
20information contained in a certificate under any of sections 112 to 116 is
inaccurate, that person may make an application in writing to the
Secretary of State for a decision as to whether or not the information is
inaccurate.”

(5) After section 117 of that Act insert—

“117A 25 Other disputes about section 113B(4) information

(1) Subsection (2) applies if a person believes that information provided in
accordance with section 113B(4) and included in a certificate under
section 113B or 116 —

(a) is not relevant for the purpose described in the statement under
30section 113B(2) or (as the case may be) 116(2), or

(b) ought not to be included in the certificate.

(2) The person may apply in writing to the independent monitor
appointed under section 119B for a decision as to whether the
information is information which falls within subsection (1)(a) or (b)
35above.

(3) The independent monitor, on receiving such an application, must ask
such chief officer of a police force as the independent monitor considers
appropriate to review whether the information concerned is
information which—

(a) 40the chief officer reasonably believes to be relevant for the
purpose described in the statement under section 113B(2) or (as
the case may be) 116(2), and

(b) in the chief officer’s opinion, ought to be included in the
certificate.

(4) In exercising functions under subsection (3), the chief officer concerned
must have regard to any guidance for the time being published under
section 113B(4A).

(5) If, following a review under subsection (3), the independent monitor
5considers that any of the information concerned is information which
falls within subsection (1)(a) or (b)—

(a) the independent monitor must inform the Secretary of State of
that fact, and

(b) on being so informed, the Secretary of State must issue a new
10certificate.

(6) In issuing such a certificate, the Secretary of State must proceed as if the
information which falls within subsection (1)(a) or (b) had not been
provided under section 113B(4).

(7) In deciding for the purposes of this section whether information is
15information which falls within subsection (1)(a) or (b), the independent
monitor must have regard to any guidance for the time being published
under section 113B(4A).

(8) Subsections (10) and (11) of section 113B apply for the purposes of this
section as they apply for the purposes of that section.”

20Up-dating and content of certificates

83 Up-dating certificates

After section 116 of the Police Act 1997 (enhanced criminal record certificates:
judicial appointments and Crown employment) insert—

“116A Up-dating certificates

(1) 25The Secretary of State must, on the request of a relevant person and
subject to subsection (2), give up-date information to that person
about—

(a) a criminal conviction certificate,

(b) a criminal record certificate, or

(c) 30an enhanced criminal record certificate,

which is subject to up-date arrangements.

(2) The Secretary of State may impose conditions about—

(a) the information to be supplied in connection with such a
request for the purpose of enabling the Secretary of State to
35decide whether the person is a relevant person,

(b) any other information to be supplied in connection with such a
request.

(3) For the purposes of subsection (1) a certificate is subject to up-date
arrangements if condition A, B or C is met and the arrangements have
40not ceased to have effect in accordance with a notice given under
section 118(3B).

(4) Condition A is that—

(a) the individual who applied for the certificate made an
application at the same time to the Secretary of State for the
certificate to be subject to up-date arrangements,

(b) the individual has paid in the prescribed manner any
5prescribed fee,

(c) the Secretary of State has granted the application for the
certificate to be subject to up-date arrangements, and

(d) the period of 12 months beginning with the date on which the
grant comes into force has not expired.

(5) 10Condition B is that—

(a) the individual whose certificate it is has made an application to
the Secretary of State to renew or (as the case may be) further
renew unexpired up-date arrangements in relation to the
certificate,

(b) 15the individual has paid in the prescribed manner any
prescribed fee,

(c) the Secretary of State has granted the application,

(d) the grant has come into force on the expiry of the previous up-
date arrangements, and

(e) 20the period of 12 months beginning with the date on which the
grant has come into force has not expired.

(6) Condition C is that—

(a) the certificate was issued under section 117(2) or 117A(5)(b),
and

(b) 25the certificate which it superseded—

(i) was subject to up-date arrangements immediately
before it was superseded, and

(ii) would still be subject to those arrangements had it not
been superseded.

(7) 30The Secretary of State must not grant an application as mentioned in
subsection (4)(c) or (5)(c) unless any fee prescribed under subsection
(4)(b) or (as the case may be) (5)(b) has been paid in the manner so
prescribed.

(8) In this section “up-date information” means—

(a) 35in relation to a criminal conviction certificate or a criminal
record certificate—

(i) information that there is no information recorded in
central records which would be included in a new
certificate but is not included in the current certificate, or

(ii) 40advice to apply for a new certificate or (as the case may
be) request another person to apply for such a certificate,

(b) in relation to an enhanced criminal record certificate which
includes suitability information relating to children or
vulnerable adults—

(i) 45information that there is no information recorded in
central records, no information of the kind mentioned in
section 113B(4), and no information of the kind
mentioned in section 113BA(2) or (as the case may be)
113BB(2), which would be included in a new certificate
50but is not included in the current certificate, or

(ii) advice to apply for a new certificate or (as the case may
be) request another person to apply for such a certificate,
and

(c) in relation to any other enhanced criminal record certificate—

(i) 5information that there is no information recorded in
central records, nor any information of the kind
mentioned in section 113B(4), which would be included
in a new certificate but is not included in the current
certificate, or

(ii) 10advice to apply for a new certificate or (as the case may
be) request another person to apply for such a certificate.

(9) If up-date information is given under subsection (8)(a)(i), (8)(b)(i) or
(8)(c)(i) and the certificate to which that information relates is one to
which subsection (10) applies, the up-date information must include
15that fact.

(10) This subsection applies to a certificate which—

(a) in the case of a criminal conviction certificate, states that there
are no convictions or conditional cautions of the applicant
recorded in central records,

(b) 20in the case of a criminal record certificate, is as described in
section 120AC(3), and

(c) in the case of an enhanced criminal record certificate, is as
described in section 120AC(4).

(11) In this section—

• 25“central records” has the same meaning as in section 113A,

• “criminal record certificate” includes a certificate under section
  114,

• “enhanced criminal record certificate” includes a certificate under
  section 116,

• 30“exempted question” has the same meaning as in section 113A,

• “relevant person” means—

  (a)

  in relation to a criminal conviction certificate—

  (i)

  the individual whose certificate it is, or

  (ii)

  any person authorised by the individual,

  (b)

  35in relation to a criminal record certificate—

  (i)

  the individual whose certificate it is, or

  (ii)

  any person who is authorised by the individual
  and is seeking the information for the purposes
  of an exempted question, and

  (c)

  40in relation to an enhanced criminal record certificate—

  (i)

  the individual whose certificate it is, or

  (ii)

  any person who is authorised by the individual
  and is seeking the information for the purposes
  of an exempted question asked for a purpose
  45prescribed under section 113B(2)(b).”

84 Criminal conviction certificates: conditional cautions

In section 112(2) of the Police Act 1997 (contents of a criminal conviction
certificate)—

(a) in paragraph (a) after “conviction” insert “or conditional caution”, and

(b) in paragraph (b) for “is no such conviction” substitute “are no such
convictions and conditional cautions”.

Other

85 5Inclusion of cautions etc. in national police records

After subsection (4) of section 27 of the Police and Criminal Evidence Act 1984
(recordable offences) insert—

“(4A) In subsection (4) “conviction” includes—

(a) a caution within the meaning of Part 5 of the Police Act 1997;
10and

(b) a reprimand or warning given under section 65 of the Crime
and Disorder Act 1998.”

86 Out of date references to certificates of criminal records

In section 75(4) of the Data Protection Act 1998 (commencement of section 56
15of that Act not to be earlier than the first day on which certain sections of the
Police Act 1997 relating to certificates of criminal records are all in force) for
“sections 112, 113 and 115” substitute “sections 112, 113A and 113B”.

CHAPTER 3 The Disclosure and Barring Service

General

87 20Formation and constitution of DBS

(1) There is to be a body corporate known as the Disclosure and Barring Service.

(2) In this Chapter “DBS” means the Disclosure and Barring Service.

(3) Schedule 8 (which makes further provision about DBS) has effect.

88 Transfer of functions to DBS and dissolution of ISA

(1) 25The Secretary of State may by order transfer any function of ISA to DBS.

(2) The Secretary of State may by order transfer to DBS any function of the
Secretary of State under, or in connection with—

(a) Part 5 of the Police Act 1997 (criminal records),

(b) the Safeguarding Vulnerable Groups Act 2006, or

(c) 30the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007
(S.I. 2007/1351 (N.I.11)S.I. 2007/1351 (N.I.11)).

(3) The Secretary of State may by order provide for the dissolution of ISA.

(4) In this section—

• “function” does not include any power of the Secretary of State to make
  35an order or regulations,

Protection of Freedoms BillPage 80

• “ISA” means the Independent Safeguarding Authority.

Supplementary

89 Orders under section 88

(1) Any power to make an order under section 88—

(a) 5is exercisable by statutory instrument,

(b) includes power to make consequential, supplementary, incidental,
transitional, transitory or saving provision,

(c) may, in particular, be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under an enactment
10(whenever passed or made and including this Act).

(2) Subject to subsection (3), a statutory instrument containing an order under
section 88 is not to be made unless a draft of the instrument has been laid
before, and approved by a resolution of, each House of Parliament.

(3) A statutory instrument containing an order under section 88 which neither
15amends nor repeals any provision of primary legislation is subject to
annulment in pursuance of a resolution of either House of Parliament.

(4) If a draft of an instrument containing an order under section 88 (alone or with
other provision) would, apart from this subsection, be treated as a hybrid
instrument for the purposes of the standing orders of either House of
20Parliament, it is to proceed in that House as if it were not a hybrid instrument.

(5) In this section—

• “enactment” includes a Measure or Act of the National Assembly for
  Wales and Northern Ireland legislation,

• “primary legislation” means—

  (a)

  25a public general Act,

  (b)

  a Measure or Act of the National Assembly for Wales, and

  (c)

  Northern Ireland legislation.

90 Transfer schemes in connection with orders under section 88

(1) The Secretary of State may, in connection with an order under section 88, make
30a scheme for the transfer to DBS of property, rights or liabilities of ISA or the
Secretary of State.

(2) The things that may be transferred under a transfer scheme include—

(a) property, rights and liabilities which could not otherwise be
transferred,

(b) 35property acquired, and rights and liabilities arising, after the making of
the scheme.

(3) A transfer scheme may make consequential, supplementary, incidental,
transitional, transitory or saving provision and may, in particular—

(a) create rights, or impose liabilities, in relation to property or rights
40transferred,

(b) make provision about the continuing effect of things done by, on behalf
of or in relation to the transferor in respect of anything transferred,

(c) make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in relation
to the transferor in respect of anything transferred,

(d) make provision for references to the transferor in an instrument or
5other document in respect of anything transferred to be treated as
references to the transferee,

(e) make provision for the shared ownership or use of property,

(f) if the TUPE regulations do not apply in relation to the transfer, make
provision which is the same or similar.

(4) 10A transfer scheme may provide—

(a) for modification by agreement,

(b) for modifications to have effect from the date when the original scheme
came into effect.

(5) A transfer scheme may confer a discretion on the Secretary of State to pay
15compensation to any person whose interests are adversely affected by the
scheme.

(6) A transfer scheme may be included in an order under section 88 but, if not so
included, must be laid before Parliament after being made.

(7) For the purposes of this section—

(a) 20references to rights and liabilities of ISA include references to rights
and liabilities of ISA relating to a contract of employment, and

(b) references to rights and liabilities of the Secretary of State include
references to rights and liabilities of the Crown relating to the terms of
employment of individuals in the civil service.

(8) 25Accordingly, a transfer scheme may, in particular, provide—

(a) for an employee of ISA or (as the case may be) an individual employed
in the civil service to become an employee of DBS,

(b) for the individual’s contract of employment with ISA or (as the case
may be) terms of employment in the civil service to have effect (subject
30to any necessary modifications) as the terms of the individual’s contract
of employment with DBS,

(c) for the transfer to DBS of rights and liabilities of ISA or (as the case may
be) the Crown under or in connection with the individual’s terms of
employment.

(9) 35In this section—

• “civil service” means the civil service of the State,

• “ISA” means the Independent Safeguarding Authority,

• “TUPE regulations” means the Transfer of Undertakings (Protection of
  Employment) Regulations 2006 (S.I. 2006/246S.I. 2006/246),

• 40references to the transfer of property include the grant of a lease.

91 Tax in connection with transfer schemes

(1) The Treasury may by order make provision varying the way in which a
relevant tax has effect in relation to—

(a) anything transferred under a transfer scheme, or

(b) 45anything done for the purposes of, or in relation to, a transfer under a
transfer scheme.

(2) The provision which may be made under subsection (1)(a) includes, in
particular, provision for—

(a) a tax provision not to apply, or to apply with modifications, in relation
to anything transferred,

(b) 5anything transferred to be treated in a specified way for the purposes
of a tax provision,

(c) the Secretary of State to be required or permitted to determine, or
specify the method for determining, anything which needs to be
determined for the purposes of any tax provision so far as relating to
10anything transferred.

(3) The provision which may be made under subsection (1)(b) includes, in
particular, provision for—

(a) a tax provision not to apply, or to apply with modifications, in relation
to anything done for the purposes of, or in relation to, the transfer,

(b) 15anything done for the purposes of, or in relation to, the transfer to have
or not have a specified consequence or be treated in a specified way,

(c) the Secretary of State to be required or permitted to determine, or
specify the method for determining, anything which needs to be
determined for the purposes of any tax provision so far as relating to
20anything done for the purposes of, or in relation to, the transfer.

(4) The power to make an order under this section—

(a) is exercisable by statutory instrument,

(b) includes power to make consequential, supplementary, incidental,
transitional, transitory or saving provision,

(c) 25may, in particular, be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under an enactment
(whenever passed or made).

(5) A statutory instrument containing an order under this section is subject to
annulment in pursuance of a resolution of the House of Commons.

(6) 30In this section—

• “enactment” includes an Act of the Scottish Parliament, a Measure or Act
  of the National Assembly for Wales and Northern Ireland legislation,

• “relevant tax” means income tax, corporation tax, capital gains tax, stamp
  duty, stamp duty reserve tax or stamp duty land tax,

• 35“tax provision” means any provision—

  (a)

  about a relevant tax, and

  (b)

  made by or under an enactment,

• “transfer scheme” means a transfer scheme under section 88,

and references to the transfer of property include the grant of a lease.

CHAPTER 4 40Disregarding certain convictions for buggery etc.

General

92 Power of Secretary of State to disregard convictions or cautions

(1) A person who has been convicted of, or cautioned for, an offence under—

(a) section 12 of the Sexual Offences Act 1956 (buggery),

(b) section 13 of that Act (gross indecency between men), or

(c) section 61 of the Offences against the Person Act 1861 or section 11 of
the Criminal Law Amendment Act 1885 (corresponding earlier
5offences),

may apply to the Secretary of State for the conviction or caution to become a
disregarded conviction or caution.

(2) A conviction or caution becomes a disregarded conviction or caution when
conditions A and B are met.

(3) 10Condition A is that the Secretary of State decides that it appears that—

(a) the other person involved in the conduct constituting the offence
consented to it and was aged 16 or over, and

(b) any such conduct now would not be an offence under section 71 of the
Sexual Offences Act 2003 (sexual activity in a public lavatory).

(4) 15Condition B is that—

(a) the Secretary of State has given notice of the decision to the applicant
under section 94(4)(b), and

(b) the period of 14 days beginning with the day on which the notice was
given has ended.

(5) 20Sections 95 to 98 explain the effect of a conviction or caution becoming a
disregarded conviction or caution.

93 Applications to the Secretary of State

(1) An application under section 92 must be in writing.

(2) It must state—

(a) 25the name, address and date of birth of the applicant,

(b) the name and address of the applicant at the time of the conviction or
caution,

(c) so far as known to the applicant, the time when and the place where the
conviction was made or the caution given and, for a conviction, the case
30number, and

(d) such other information as the Secretary of State may require.

(3) It may include representations by the applicant or written evidence about the
matters mentioned in condition A in section 92.

94 Procedure for decisions by the Secretary of State

(1) 35In considering whether to make a decision of the kind mentioned in condition
A in section 92, the Secretary of State must, in particular, consider—

(a) any representations or evidence included in the application, and

(b) any available record of the investigation of the offence and of any
proceedings relating to it that the Secretary of State considers to be
40relevant.

(2) The Secretary of State may not hold an oral hearing for the purpose of deciding
whether to make a decision of the kind mentioned in condition A in section 92.

(3) Subsection (4) applies if the Secretary of State—

(a) decides that it appears as mentioned in condition A in section 92, or

(b) makes a different decision in relation to the matters mentioned in that
condition.

(4) The Secretary of State must—

(a) 5record the decision in writing, and

(b) give notice of it to the applicant.

Effect of disregard

95 Effect of disregard on police and other records

(1) The Secretary of State must by notice direct the relevant data controller to
10delete details, contained in relevant official records, of a disregarded
conviction or caution.

(2) A notice under subsection (1) may be given at any time after condition A in
section 92 is met but no deletion may have effect before condition B in that
section is met.

(3) 15Subject to that, the relevant data controller must delete the details as soon as
reasonably practicable.

(4) Having done so, the relevant data controller must give notice to the person
who has the disregarded conviction or caution that the details of it have been
deleted.

(5) 20In this section—

• “delete”, in relation to such relevant official records as may be prescribed,
  means record with the details of the conviction or caution concerned—

  (a)

  the fact that it is a disregarded conviction or caution, and

  (b)

  the effect of it being such a conviction or caution,

• 25“the names database” means the names database held by the National
  Policing Improvement Agency for the use of constables,

• “official records” means records containing information about persons
  convicted of, or cautioned for, offences and kept by any court, police
  force, government department or local or other public authority in
  30England and Wales for the purposes of its functions,

• “prescribed” means prescribed by order of the Secretary of State,

• “relevant data controller” means—

  (a)

  in relation to the names database, any chief officer of police of a
  police force in England and Wales who is a data controller in
  35relation to the details concerned,

  (b)

  in relation to other relevant official records, such person as may
  be prescribed,

• “relevant official records” means—

  (a)

  the names database, and

  (b)

  40such other official records as may be prescribed.

(6) An order under this section—

(a) may make different provision for different purposes,

(b) is to be made by statutory instrument which is subject to annulment in
pursuance of a resolution of either House of Parliament.

96 Effect of disregard for disclosure and other purposes

(1) A person who has a disregarded conviction or caution is to be treated for all
purposes in law as if the person has not—

(a) committed the offence,

(b) 5been charged with, or prosecuted for, the offence,

(c) been convicted of the offence,

(d) been sentenced for the offence, or

(e) been cautioned for the offence.

(2) In particular—

(a) 10no evidence is to be admissible in any proceedings before a judicial
authority exercising its jurisdiction or functions in England and Wales
to prove that the person has done, or undergone, anything within
subsection (1)(a) to (e), and

(b) the person is not, in any such proceedings, to be asked (and, if asked, is
15not 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 caution or any circumstances ancillary to it.

(3) Where a question is put to a person, other than in such proceedings, seeking
information with respect to the previous convictions, cautions, offences,
20conduct or circumstances of any person—

(a) the question is to be treated as not relating to any disregarded
conviction or caution, 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
25prejudiced in law by reason of any failure to acknowledge or disclose
that conviction or caution or any circumstances ancillary to it in
answering the question.

(4) 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
30other person is not to extend to requiring the disclosure of a disregarded
conviction or caution or any circumstances ancillary to it.