Commentary on Provisions Scottish disqualification orders Section 8 – Scottish disqualification orders
35.This section applies where an offender is convicted by a criminal court in Scotland of an offence listed in the schedule of the Act which was committed when the offender was aged 18 or over; and the court is satisfied beyond reasonable doubt that the offence is aggravated by hostility related to a returning officer or their staff (as defined in section 9), a registration officer or their staff (as defined in section 10) or a counting officer or their staff (as defined in section 11) (described here collectively as “election workers”).
36.In those circumstances the court must, when dealing with the offender for the offence, also make a Scottish disqualification order. The disqualification order is to have effect for 5 years and, by virtue of the changes made by sections 12 and 13 to the Scotland Act 1998 and the Local Government (Scotland) Act 1973, respectively, means that the offender is disqualified from being a member of the Scottish Parliament or local authority.
37.However, the court does have some discretion as it does not have to make the disqualification order if they consider it would be unjust due to particular circumstances about the offence or the offender. Where the court determines not to make the order, the court must give its reasons for not doing so in open court.
38.An offence is aggravated by hostility if the offender demonstrated hostility towards the victim of the offence because the victim is, or the offender presumes the victim to be, an election worker. The hostility must be demonstrated by the offender at the time of committing the offence, or immediately before or after the commission of the offence.
39.In terms of section 8(4), the ‘victim’ of the offence doesn’t necessarily need to be an election worker in order for the offence to be aggravated by the necessary hostility. This means that an offence could be aggravated by hostility where (for example) an offender commits a relevant offence against person A (e.g., an election worker’s parent) and that offence is motivated by the offender’s hostility towards person B because B is an election worker.
40.It is immaterial whether or not an offender’s hostility is also based (to any extent) on any other factor not listed in that subsection, i.e., a factor other than the victim being or being presumed by the offender to be an election worker, or a factor other than hostility towards persons in their capacity as an election worker.
41.In terms of section 8(6) and (7), the court may consider evidence presented by the prosecution or defence in deciding whether or not to make a disqualification order under this section, even if that evidence would not have been admissible in the proceedings in which the offender was convicted.
42.For the purposes of determining whether an offender was aged 18 or over when the offence was committed, where an offender is found to be committed over more than a single day it is taken to have been committed on the last of those days.
43.Section 8(9) provides that where a person is convicted of an offence which would result in a disqualification order, the court must also take the aggravation into account when determining the sentence and state the difference (if any) the aggravation has made to the court’s decision on sentence.