Disclosure (Scotland) Act 2020

Offences relating to Level 1 and Level 2 disclosures

41 Falsification of a Level 1 or Level 2 disclosure

(1) A person commits an offence if the person, with intent to deceive—

(a) makes a document that purports to be a Level 1 disclosure or a Level 2 disclosure,

(b) alters a Level 1 disclosure or Level 2 disclosure,

(c) uses, or allows another person to use, a Level 1 disclosure or Level 2 disclosure in a way that suggests that it relates to an individual other than the one who is the subject of the Level 1 disclosure or Level 2 disclosure.

(2) A person commits an offence if the person knowingly makes a false or misleading statement for the purpose of obtaining, or enabling another person to obtain, a Level 1 disclosure or Level 2 disclosure.

(3) A person who commits an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

42 Unlawful disclosure of a Level 2 disclosure

(1) A person to whom a Level 2 disclosure is made available or disclosed under this Part commits an offence if the person discloses it unlawfully to another person.

(2) A Level 2 disclosure is disclosed lawfully only so far as the disclosure is permitted by section 43; otherwise it is disclosed unlawfully.

(3) A person to whom a Level 2 disclosure is disclosed unlawfully commits an offence if the person discloses the Level 2 disclosure to another person.

(4) A person who commits an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

43 Lawful disclosures of Level 2 disclosures

(1) An accredited body to whom a Level 2 disclosure is made available under this Part may disclose the Level 2 disclosure—

(a) to any of the accredited body’s employees,

(b) where the accredited body is not an individual, to any member or officer of the accredited body,

(c) where the Level 2 disclosure was made available by virtue of an application for a Level 2 disclosure made at the request of another person (a “third person”) who is, for the purpose of the disclosure, asking a question about the individual who is the subject of the disclosure—

(i) to that third person,

(ii) to any of the third person’s employees,

(iii) where the third person is not an individual, to any member or officer of the third person.

(2) An employee, member or officer of the accredited body to whom a Level 2 disclosure is disclosed under subsection (1) may disclose the Level 2 disclosure—

(a) to any other employee, member or officer of the accredited body, or

(b) as mentioned in subsection (1)(c).

(3) A third person to whom a Level 2 disclosure is disclosed under subsection (1)(c) or (2)(b) may disclose the Level 2 disclosure—

(a) to any of the third person’s employees,

(b) where the third person is not an individual, to any of the third person’s members or officers.

(4) An employee, member or officer of a third person to whom a Level 2 disclosure is disclosed under subsection (1)(c), (2)(b) or (3) may disclose the Level 2 disclosure to another employee, member or officer of the third person.

(5) Disclosure of a Level 2 disclosure by a person is permitted under this section only so far as the disclosure is—

(a) made in the course of the person’s functions,

(b) for a purpose that is the same as the purpose of the Level 2 disclosure, and

(c) in the case of disclosure as mentioned in subsection (1)(c), permitted by section 56(3) or (4).

(6) In subsection (1), the reference to an accredited body to whom a Level 2 disclosure is made available under this Part includes a reference to any lead signatory or countersignatory of the accredited body to whom a Level 2 disclosure is made available on behalf of the accredited body.

44 Unlawful request for and use of a Level 2 disclosure

(1) A person commits an offence if the person requests the provision of, or otherwise seeks sight of, a Level 2 disclosure for a purpose other than a permitted purpose.

(2) In subsection (1), “permitted purpose”, in relation to a Level 2 disclosure, means a purpose falling within section 12(2) or 19(2) including, where section 17 applies to the disclosure, to enable or assist a person (or any other person for whom the person acts) to consider the suitability of the individual who is the subject of the disclosure to carry out, or to be offered or supplied for, a type of regulated role.

(3) A person commits an offence if the person uses a Level 2 disclosure for a purpose other than a permitted purpose.

(4) In subsection (3), “permitted purpose”, in relation to a Level 2 disclosure, means a purpose that is the same as the purpose of the disclosure.

(5) A person who commits an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

45 Offences under sections 42 and 44: supplementary provision

(1) Nothing in section 42 makes the disclosure of a Level 2 disclosure an offence where the disclosure is—

(a) by the individual who is the subject of the Level 2 disclosure,

(b) by any other person with the consent of the individual who is the subject of the Level 2 disclosure,

(c) to an office-holder in the Scottish Administration or a government department,

(d) to a statutory office-holder,

(e) in accordance with any obligation to provide information imposed by virtue of any enactment,

(f) for any other prescribed purpose.

(2) Nothing in section 44 makes the use of a Level 2 disclosure for a purpose other than a permitted purpose an offence where the use is—

(a) by the individual who is the subject of the Level 2 disclosure,

(b) by any other person with the consent of the individual who is the subject of the Level 2 disclosure,

(c) by an office-holder in the Scottish Administration or a government department,

(d) by a statutory office-holder,

(e) in accordance with any obligation to provide information imposed by virtue of any enactment,

(f) in any other prescribed circumstances.

(3) In this section and sections 42, 43 and 44(3), references to a Level 2 disclosure include references to any information contained in a Level 2 disclosure.