Pre-existing law
23.The Rehabilitation of Offenders Act 1974 (the “1974 Act”), broadly speaking, provides for certain convictions to become “spent” after a specified rehabilitation period. A principal effect of a conviction being spent is that the convicted person no longer has to disclose information about the conviction (for example, if asked about previous convictions in connection with a job application or in judicial proceedings). Certain convictions never become spent and so require to be disclosed throughout a person’s life.(16) The period after which other convictions become spent varies according to circumstances.(17) Similar provision is made in relation to certain alternatives to prosecution (which are not convictions).(18) Section 7 of the 1974 Act and the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013(19) also set out various circumstances in which the general protection against disclosure provided by the 1974 Act does not apply.
24.As already noted, children aged under eight cannot be convicted of an offence and so the 1974 Act has no application in relation to this age group. Prior to implementation of this Act, children aged eight to 11 could acquire convictions for the purposes of the 1974 Act, as the offence ground being accepted or established in or for the purposes of children’s hearings proceedings counted as a conviction for these purposes.(20) Prior to the prosecution of children aged eight to 11 being prohibited by section 41A of the 1995 Act, children in this age group could also be convicted by the courts. Under the 1974 Act (prior to its amendment by this Act), both of these categories of conviction require to be disclosed at least until they become spent.
25.The 1974 Act largely deals with “self-disclosure” (that is, situations in which the convicted person is or is not themselves required to disclose information about spent convictions). The Police Act 1997 (the “1997 Act”) and the Protection of Vulnerable Groups (Scotland) Act 2007 (the “2007 Act”) established systems of “state disclosure”, whereby certain information about a person is made available to other persons by the state (in Scotland, in the form of Disclosure Scotland – see paragraph 36). Information that will be disclosed by Disclosure Scotland is, generally speaking, not protected under the 1974 Act – that is, a person is not protected against failure to self-disclose information that will be disclosed by Disclosure Scotland under the 1997 Act or the 2007 Act.
26.The 1997 Act established a system for the state disclosure of information about a person’s criminal record. The system is used, for example, to assist consideration of a person’s suitability to undertake certain kinds of employment or voluntary work.(21) There are three levels of disclosure under the 1997 Act.
27.A basic disclosure under section 112 of the 1997 Act gives “prescribed details” of any unspent convictions held in “central records”, or states that there are no such convictions. “Conviction” is defined in section 112(3) to mean a conviction within the meaning of the 1974 Act, other than a spent conviction. As already noted, the offence ground being accepted or established in or for the purposes of children’s hearings proceedings counts as a conviction for this purpose.
28.A standard disclosure under section 113A of the 1997 Act:
gives “prescribed details” of any “relevant matter” held in “central records” (or states that there are no such matters), and
states whether the person to whom the disclosure relates is subject to notification requirements under Part 2 of the Sexual Offences Act 2003.
29.An enhanced disclosure under section 113B of the 1997 Act:
gives “prescribed details” of any “relevant matter” held in “central records” (or states that there are no such matters),
gives information which the chief officer of any relevant police force(22) reasonably believes is relevant to the purpose for which the disclosure is sought and which the chief officer considers ought to be disclosed (or states that there is no such information), and
states whether the person to whom the disclosure relates is subject to notification requirements under Part 2 of the Sexual Offences Act 2003.
30.A “relevant matter” is defined for the purposes of sections 113A and 113B of the 1997 Act as a “conviction” which is not a “protected conviction”, a caution which is not spent by virtue of schedule 3 of the Rehabilitation of Offenders Act 1974 and a prescribed court order.(23) The convictions covered by this definition include certain spent convictions as well as unspent convictions.(24) Again, the offence ground being accepted or established in or for the purposes of children’s hearings proceedings counts as a conviction for these purposes.(25)
31.The 2007 Act provides for additional checks on people doing regulated work with children or protected adults.(26) A person wishing to undertake such work is able to become a scheme member under the 2007 Act. Persons barred from certain types of regulated work under Part 1 of the 2007 Act are not permitted to become scheme members in relation to that type of work. When a person first joins the scheme, and periodically thereafter, a search for vetting information in relation to the person is undertaken. Vetting information is defined in section 49 of the 2007 Act as follows:
the information referred to in section 113A(3)(a) of the 1997 Act (which is the information mentioned in the first bullet-point of paragraph 28 above – that is, “prescribed details” of any “relevant matter” held in “central records” (or a statement that there is no such information)),
information as to whether the scheme member is subject to notification requirements under Part 2 of the Sexual Offences Act 2003,
information which the chief officer of a relevant police force(27) reasonably believes to be relevant in relation to the type of work in relation to which the scheme member participates in the scheme and which the chief officer considers ought to be included in the member’s scheme record,
any other information prescribed by the Scottish Ministers.(28)
32.There are three types of disclosure under the 2007 Act:
a statement of scheme membership (section 54 of the 2007 Act): this is a document stating that a person is a scheme member,
a short scheme record (section 53 of the 2007 Act): this is a document stating that a person is a scheme member and that the person’s scheme record does not include any vetting information,
a scheme record (section 52 of the 2007 Act): this is a document stating that a person is a scheme member and giving, in accordance with the provisions of the 2007 Act, details of the vetting information included in the person’s scheme record.
33.The information described in the second bullet-point of paragraph 29 and the third bullet-point of paragraph 31 is referred to as “other relevant information” (“ORI”).
34.Due to the fact that children aged under eight already cannot be convicted of an offence, no conviction information in relation to pre-eight behaviour exists to be disclosed in later life under the 1997 Act or the 2007 Act.
35.As children aged eight to 11 could acquire convictions (by virtue of the offence ground being accepted or established for children’s hearings purposes) up to 28 November 2019, and could also be convicted by the courts in the past, information about things done while aged eight to 11 can fall to be disclosed as convictions under the 1997 Act and the 2007 Act.(29) Information about things done by children in this age group may also be disclosed as ORI.
36.The disclosure schemes under the 1997 Act and 2007 Act are both operated in Scotland by Disclosure Scotland.(30) Individuals apply to Disclosure Scotland for the type of disclosure they require. Disclosure Scotland then gathers information from police records of convictions prior to the disclosure information being provided in accordance with the 1997 Act or the 2007 Act. When the application is for an enhanced disclosure or a scheme record, Disclosure Scotland ask the chief officer of any relevant police force to provide information about the applicant for inclusion on the disclosure as ORI (as described in paragraphs 29, 31 and 33 above).
For example, a conviction in respect of which a sentence of imprisonment for life was imposed.
See section 5 of the 1974 Act.
See section 8 of the 1974 Act.
SSI 2013/50.
See section 3 of the 1974 Act. See also footnote 13 – determinations finding that the offence ground applied in relation to children aged eight to 11 ceased to be made on 29 November 2019.
Other contexts in which information about a person’s criminal record may be required include adoption applications and applications for certain types of licence.
“Relevant police force” is defined in the Police Act 1997 (Criminal Records) (Scotland) Regulations 2010 (SSI 2010/168). The definition includes, as well as the Police Service of Scotland, certain other police forces. So, for example, if a person is seeking an enhanced disclosure in Scotland having just moved from England, the information in the disclosure could include information provided by the chief constable of the English police force for the area where the person previously lived.
See section 113A(6) of the 1997 Act for definitions of “relevant matter” and “conviction”. This section also defines “central records” (but see also the Police Act 1997 (Criminal Records) (Scotland) Regulations 2010 (SSI 2010/168)). Those regulations also set out what is meant by “prescribed details”. The meaning of “protected conviction” is set out in section 126ZA of the 1997 Act.
See section 126ZA of the 1997 Act.
Again, by virtue of section 3 of the Rehabilitation of Offenders Act 1974.
See Part 6 of the 2007 Act for definitions of terms such as “protected adult” and “regulated work”.
By virtue of section 97(5) of the 2007 Act, “relevant police force” has the same meaning in that Act as it has in the 1997 Act – see footnote 22. But see also The Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Provisions) Order 2010 (SI 2010/2660) (an order made under section 104 of the Scotland Act 1998), which requires chief constables of relevant police forces outside Scotland to comply with requests for vetting information.
And, as mentioned in paragraph 25, once disclosed in this way, the protections against self-disclosure provided by the 1974 Act cease to apply.
Which is an executive agency of the Scottish Government.
