Level 2 disclosures: review applications
Section 20: Level 2 disclosure: application for review
46.Where a Level 2 disclosure is provided to an applicant, the applicant can, within a period to be set by regulations subject to the negative procedure, request a review of: (a) the accuracy of any information included in the disclosure, or (b) the inclusion of any reviewable information. Reviewable information is: information about a spent childhood conviction or children’s hearing outcome; information provided by the chief constable for inclusion in the disclosure; and details of a removable conviction. A removable conviction is a spent conviction that is not a childhood conviction or children’s hearing outcome, either for an offence in List A where at least 11 years have passed since the date of conviction, or for an offence in List B that is not a non-disclosable conviction (as defined in section 9.)
47.The applicant can only seek a review where Ministers were given prior notice of the applicant’s intention to apply for review, in line with the process described in section 18. The applicant must specify in the review application the information that the applicant wishes to be reviewed. This is important as there are separate provisions for each of the four possible reviews: sections 21, 22, 23 and 25. An application for review (of whatever type, including combined reviews) is known as a “Level 2 review application”.
Section 21: Review of accuracy of information by the Scottish Ministers
48.This section makes similar provision to the corrections process provided for under section 117 of the 1997 Act and section 51 of the PVG Act. The corrections process is now integrated with the new review procedures provided for in sections 22 to 30. Where a Level 2 review application seeks a review of the accuracy of any information in the disclosure, Ministers must carry out a review and must decide whether the information in question is accurate. They must notify the applicant of their decision. A review of the accuracy of information in a Level 2 disclosure cannot take place where the information in question relates to reviewable information, for which there are separate review mechanisms under sections 22, 23 or 25. An accuracy review is also excluded where the information could be reviewed under section 18 of the ACR Act, i.e. where it relates to information that has been provided by the police about a person’s behaviour while they were under the age of 12.
49.There is no further review by the independent reviewer under section 21. An accuracy review under section 21 is administrative in nature to enable the correction of the content of the disclosure, for example an error in the applicant’s name, date of birth, address, or if the applicant has provided evidence to rebut the age presumption (see section 40). This is in contrast to the other review procedures under sections 22, 23 or 25, which involve an exercise of judgment as to whether information ought to be included in a Level 2 disclosure.
Section 22: Review of childhood information by the independent reviewer
50.Where a Level 2 review application seeks a review of the inclusion of information about a spent childhood conviction or children’s hearing outcome, Ministers must arrange for a review by the independent reviewer of Ministers’ decision to disclose the childhood information. The independent reviewer must decide whether the childhood conviction or children’s hearing outcome is relevant for the purpose of the disclosure and whether information about it ought to be included in the disclosure. Any finding of fact on which a childhood conviction or children’s hearing outcome was based cannot be challenged in the course of a review. Section 28 makes further provision on the procedure for reviews carried out by the independent reviewer.
Section 23: Review of relevant Scottish police information by the police
51.Where a Level 2 review application seeks review of the inclusion of relevant police information that has been provided by the chief constable of the Police Service of Scotland, Ministers must refer the application to the chief constable for a review. The chief constable must decide whether the chief constable still reasonably believes that the information is relevant to the purpose of the disclosure and that it ought to be included in the disclosure. The chief constable must invite representations from the applicant when carrying out the review and have regard to them. It is necessary that the initial review is carried out under the authority of the chief constable, as the person whose duty it is to provide ORI. In practice, however, as a matter of good administrative practice, it is expected that the review would be carried out by members of police staff who have not previously been involved in the original disclosure process. It is expected that similar provision for review of relevant police information provided by the chief officers of other relevant police forces in the UK will be made by order under section 104 of the Scotland Act 1998.
52.On completion of the review, the chief constable must notify Ministers of the decision and reasons for it, and in turn Ministers must notify the applicant of the outcome and reasons. In cases where the chief constable has decided the relevant police information should remain on the disclosure, Ministers must advise the applicant of the option to have the chief constable’s decision reviewed by the independent reviewer under section 24.
53.No review application may be made under this section if the information could be reviewed under section 18 of the ACR Act (which relates to information provided by the police about pre-12 years behaviour which can no longer amount to a criminal conviction).
Section 24: Review of relevant Scottish police information by the independent reviewer
54.This section gives an applicant the right to request a review by the independent reviewer following a review of relevant police information under section 23 by the chief constable. If a request for review is made within the prescribed period, Ministers must arrange for a review by the independent reviewer. The independent reviewer’s role is to decide whether the police information is relevant for the purpose of the disclosure and whether it ought to be included. Section 28 makes further provision on the procedure for reviews carried out by the independent reviewer.
Section 25: Review of inclusion of removable convictions by the Scottish Ministers
55.Where a Level 2 review application seeks review of the inclusion of details of a removable conviction (as defined in section 20(6) of the Act), Ministers must carry out a review and decide whether the conviction is relevant for the purpose of the disclosure and whether details of it ought to be included. Ministers must give the applicant an opportunity to make representations and may request information under section 65 from the persons listed in subsection (3) of that section. Ministers must take account of any representations or information received before reaching their review decision. Any finding of fact on which a conviction was based cannot be challenged in the course of a review. Ministers must notify the applicant of their decision, and in cases where the review outcome is that information about a removable conviction should remain on the disclosure, the reasons for that decision, and the applicant must be advised of the option to have the Ministers’ decision reviewed by the independent reviewer under section 26.
Section 26: Review of inclusion of removable convictions by the independent reviewer
56.This section gives an applicant the right to request a review by the independent reviewer following a review of the inclusion of the removable conviction information under section 25 by Ministers. If a request for review is made within the prescribed period, Ministers must arrange a review of the inclusion of the conviction by by the independent reviewer. The independent reviewer’s role is to decide whether the removable conviction is relevant for the purpose of the disclosure and whether it ought to be included. Any finding of fact on which a conviction was based cannot be challenged in the course of a review. Section 28 makes further provision on the procedure for reviews carried out by the independent reviewer.
Section 27: Combination of reviews by the independent reviewer
57.Where a Level 2 review application has been made seeking review of more than one type of reviewable information and, as a result, more than one review is to be carried out by the independent reviewer, Ministers must arrange for the independent reviewer to bring them together and treat them as a single review. This will avoid duplication of effort, for example, two requests for information being sent to the same person. It will also ensure a single, streamlined outcome for the applicant. There are provisions to ensure that where one or more of the strands of review requires a prior decision by either the chief constable or Ministers, the single review by the independent reviewer cannot begin until any such earlier reviews are completed and the prescribed period for the applicant to request a review by the independent reviewer has expired (either with or without a request for review having been made). Where there is more than one type of earlier review, the independent review process can only proceed when all prior reviews are complete.
Section 28: Independent reviewer: information and representations
58.Section 28 gives the independent reviewer powers to gather information in connection with the review. The independent reviewer must invite representations from the applicant, and can require information to be provided by certain persons listed in subsection (2), within such time as the reviewer may specify (subject to any time periods set by Ministers in regulations made under section 37(2)(c)). The Scottish Ministers are under a duty to provide the independent reviewer with a statement of reasons for their own decision or the chief constable’s decision which is the subject of the review (the chief constable has to notify Ministers of the reasons for the chief constable’s decision under section 23(7)). The chief constable cannot provide information to the independent reviewer if doing so would harm the interests of the prevention or detection of crime. The independent reviewer must take account of any representations, statement of reasons or information received when carrying out a review.
Section 29: Notification of independent reviewer’s decision
59.The independent reviewer must notify the applicant and Ministers of the reviewer’s decision and the reasons for it. Notification must also be given to the chief constable where a decision by the chief constable was under review.
Section 30: Appeal against independent reviewer’s decision
60.This section allows an appeal to a sheriff on a point of law only against a decision of the independent reviewer. The “point of law” ground would include an appeal on many of the grounds which might be the subject of an application to the court for judicial review. For instance, an appeal may be taken if the applicant claimed that there had been procedural unfairness in the process before the independent reviewer, or if the independent reviewer’s decision was said to be incompatible with the applicants ECHR rights.
61.An appeal may be taken by the applicant or, where a decision by the chief constable was under review, the chief constable. An appeal must be made within three months of the independent reviewer’s decision, starting on the date on which the decision was notified to the applicant. Both the applicant and the chief constable can provide notice that they do not intend to appeal the independent reviewer’s decision. If notification is given to Ministers of an intention not to appeal to the sheriff before the end of that three-month period, the right to appeal is lost. Notifying Ministers sooner of an intention not to appeal will allow the process under section 31 for providing a new Level 2 disclosure to begin sooner (see section 31(6)(c)).
62.The role of the sheriff in an appeal is to confirm or overturn the independent reviewer’s decision. Any finding of fact on which a conviction was based cannot be challenged in the course of an appeal. The sheriff can hear the appeal in private. The sheriff can allow an appeal in part where it relates to more than one decision or information about two or more convictions. The sheriff’s decision in an appeal is final.
Section 31: Provision of new Level 2 disclosure on conclusion of review proceedings
63.Once proceedings on a Level 2 review application have finally concluded (according to the definition in subsection (7)), Ministers must provide a new Level 2 disclosure to the applicant. The applicant is treated as having made a new application for a Level 2 disclosure on the date on which proceedings finally concluded. Ministers are required to give effect to the final outcome of the proceedings (as defined by subsection (9), for instance by correcting any inaccurate information or by excluding reviewable information which the final decision maker in the review process (be that Ministers, the chief constable, the independent reviewer or the sheriff) has determined is not relevant for the purpose of the disclosure and ought not to be included.
64.Where an application for review of reviewable information was unsuccessful, the applicant cannot make a Level 2 review application about the same information when their new Level 2 disclosure is issued to them at the end of the review process. The applicant may request subsequent review of the same information provided for the same purpose after a period of time (to be set in regulations), or if Ministers are satisfied their circumstances have changed in a material respect since the final outcome of proceedings.
65.Where information is excluded from the new Level 2 disclosure provided to the applicant, and the applicant is a PVG scheme member, Ministers must also exclude the information from a scheme member’s PVG scheme record where the purpose of the disclosure related to the type of regulated role for which the individual is a scheme member. The information is also to be treated as not being vetting information for the purposes of the PVG Act. Consequential amendments are made in schedule 5 of the Act to section 51 of the PVG Act, which makes provision for corrections to a person’s scheme record.
Section 32: Disapplication of provisions of section 4 of the Rehabilitation of Offenders Act 1974
66.Section 32 lifts the protections against the normal duty to self-disclose information about spent convictions afforded by section 4 of the 1974 Act, so that someone who has applied for a review under section 22 of the inclusion of a spent childhood conviction or children’s hearing outcome, or a review of the inclusion of removable convictions by the Scottish Ministers under section 25 or the independent reviewer under section 26, has to answer questions and provide honest and accurate information about that conviction or outcome for the purposes of the review.
67.Subsections (1) and (2) provide that the usual protections against self-disclosure of spent convictions will not apply where a review is to be carried out by the Scottish Ministers or the independent reviewer about the inclusion of a removable conviction, or the independent reviewer in connection with determining whether information about a spent childhood conviction (or children’s hearing outcome) should be included in a Level 2 disclosure. Subsections (2)(a) and (b) provide that the protections do not apply for the purpose of the review (and any appeal under section 30) and in relation to the information which is the subject of the referral. The effect of this is that the protection is lifted insofar as relating to the spent childhood conviction, children’s hearing outcome or removable conviction which is the subject of the review. However, the disapplication of the usual protections against self-disclosure of spent convictions would not extend to questions about other spent childhood convictions, children’s hearing outcomes or removable convictions which are not the subject of the review.
68.Subsections (3) and (4) disapply the protections in the 1974 Act when information about or details of spent childhood convictions, children’s hearing outcomes or removable convictions are thereafter included on a Level 2 disclosure. The effect of this is that it will allow an employer to ask a person about their spent childhood conviction, children’s hearing outcome or removable conviction. The protections are, however, only disapplied insofar as discussions / proceedings relate to the specific purpose for which the Level 2 disclosure was issued (e.g. discussions with the employer following receipt of the disclosure).
69.Subsections (5) and (6) make it clear that the protections given by the 1974 Act are not lifted in respect of a failure to acknowledge a spent childhood conviction, children’s hearing outcome or removable conviction or any circumstances ancillary to it before it is disclosed. This means that the individual can still benefit from the protections under the 1974 Act up to the point where the information about or details of a spent childhood conviction, children’s hearing outcome or removable conviction is included in a disclosure certificate, so that the individual is not in any doubt about whether or not there is a duty to self-disclose.
