Level 2 disclosures
Section 8: Level 2 disclosure
22.Section 8 defines the content of a Level 2 disclosure, which replaces standard and enhanced disclosures under the 1997 Act and scheme records under the PVG Act (collectively known as ‘higher level disclosures’).
23.Subsection (1)(a) provides that a Level 2 disclosure in relation to an individual will include details of criminal disposals incurred by the individual. “Criminal disposal, when read with subsection (3), includes (i) spent and unspent adult convictions, (ii) unspent childhood convictions, and (iii) unspent adult cautions, but does not include non-disclosable convictions. This means that unspent childhood convictions will be disclosed subject to the rules set out in section 9. This differs from information about spent childhood convictions which will follow the process set out in section 13.
24.Subsections (1)(b) to (e) provide that Level 2 disclosures may include information about spent childhood convictions and children’s hearing outcomes, information provided by the chief constable, information provided by the chief officers of relevant overseas police forces, and confirmation of whether the applicant is subject to the notification requirements under the Sexual Offences Act 2003. It is also to include additional information where sections 16 or 17 apply. In this Part “children’s hearing outcome” means anything treated as a conviction for the purposes of the 1974 Act by virtue of section 3 of that Act (see section 69). Section 3 of the 1974 Act covers referrals to a children’s hearing under the Children (Scotland) Act 1995 or the Children’s Hearings (Scotland) Act 2011 on grounds of the commission of an offence by a child where that ground of referral has been accepted, established or deemed to be established.
25.Information that was previously removed from a Level 2 disclosure under section 31(4) following a successful review application, must not be included in a Level 2 disclosure if it appears to Ministers that the subsequent Level 2 disclosure has been requested for the same purpose as the previous Level 2 disclosure. For example, if a childhood conviction is excluded from a PVG Level 2 disclosure following a review process in relation to an individual participating in the Scheme to carry out regulated roles with children, that conviction will never appear in the individual’s subsequent Level 2 disclosures relating to them doing regulated roles with children. However, if the individual later joins the Scheme to carry out regulated roles with adults, the purpose of the disclosure is not the same as the previous Level 2 disclosure. The process in section 13, and if applicable sections 22 and 30, would therefore apply again. More information about the “purpose” of the disclosure can be found at paragraph 29 of these notes.
Section 9: Non-disclosable convictions
26.Section 9 defines the term “non-disclosable conviction”. A non-disclosable conviction will not be included in a Level 2 disclosure. To be non-disclosable, a conviction must be spent. It must also either (i) be for an offence that does not appear on either List A or List B (schedules 1 and 2 of the Act), or (ii) be for an offence that appears on List B and meet one of three conditions. The conditions are that: (a) the disposal was an admonition or absolute discharge; (b) the conviction was a childhood conviction and at least 5 years and 6 months have passed since the date of conviction; (c) the conviction was not a childhood conviction and at least 11 years have passed from the date of conviction. Ministers can modify the offence lists in schedules 1 and 2 by regulations. Section 91(2) specifies that these are to be made by regulations subject to the affirmative procedure.(4)
Section 10: Non-disclosable children’s hearing outcomes
27.Section 10 replicates section 9 on non-disclosable convictions, so that it is clear when a children’s hearing outcome may be included in a Level 2 disclosure, even although it is spent. All children’s hearing outcomes are spent immediately however the rules which apply to make children’s hearing outcomes non-disclosable are otherwise the same as for convictions, with reference to the offence lists in schedules 1 and 2 of the Act. Subsection (2) provides the conditions for when a children’s hearing outcome is relevant to this Part. Only when there is acceptance, establishment or deemed establishment of the grounds of an offence referral to a children’s hearing is it within scope for disclosure.
Section 11: Provision of Level 2 disclosures
28.28. 28. Section 11 sets out the circumstances in which a Level 2 disclosure is provided to the applicant. Ministers must provide a Level 2 disclosure where the applicant is aged 16 years or over and makes an application which is countersigned by an accredited body and is for a permitted purpose (countersigning and permitted purpose are both further explained in section 12). Ministers also have discretion to provide a Level 2 disclosure to an applicant 12 years of age or over but under 16 years if they consider it appropriate to do so. There may be some exceptional cases where this is justified such as, for example, where a foster family had a 15 year old child in the household. The application must still comply with section 12 and the child will not be able to become a member of the PVG Scheme. Ministers can refuse to provide a Level 2 disclosure if they conclude that the person who countersigned the application or certain other persons connected with the application (listed in subsection (4)) have not complied with the code of practice issued by Ministers under section 55. Subsection (5) provides that an individual can only apply for a disclosure in relation to themselves.
Section 12: Level 2 disclosure applications: countersigning and purposes
29.Section 12 requires a Level 2 disclosure application to be countersigned by an accredited body, and to include a statement from that body about the purpose for which the disclosure is needed. The purpose must be one in relation to which the usual rules in sections 4(2)(a) or (b) of the 1974 Act(5), about not having to self-disclose spent convictions when asked about criminal history, have been excluded by an order made by the Scottish Ministers.(6)
30.By way of example, if an application for a Level 2 disclosure stated that it was for the purpose of a question asked in order to assess the suitability of the applicant to act as a child minder then this would be a valid purpose as it is one for which the application of section 4(2)(a) and (b) of the 1974 Act is excluded. It is then in relation to that purpose that, for instance, the relevance of any “other relevant information” (see sections 14 and 15) would be assessed for inclusion in a Level 2 disclosure.
31.This ensures that Level 2 disclosures (which can include details of spent convictions) may only be requested in circumstances where a person would be required to self-disclose information about certain spent convictions. References to the purpose of a Level 2 disclosure are to be understood in this way throughout Part 1 of the Act.
Section 13: Childhood information
32.Before providing a Level 2 disclosure to an applicant, Ministers must find out if the applicant has any spent childhood convictions and children’s hearing outcomes that are not non-disclosable convictions or non-disclosable outcomes. “Non-disclosable” is defined in sections 9 and 10 of the Act, both of which serve to act as a filter before the decision making process in this section is applied. If there are any such spent childhood convictions or children’s hearing outcomes, Ministers must decide if they are relevant to the purpose of the Level 2 disclosure, and if information about the conviction or outcome ought to be included in the disclosure. The effect of this section is that unspent childhood convictions are exempt from the decision-making process, the result of which will be disclosed following the rules set out in section 8 of the Act.
33.Ministers may request information under section 65 from the persons listed in subsection (3) of that section. If Ministers decide to include information about a spent childhood conviction or children’s hearing outcome in the disclosure, they must include such information as they consider appropriate and in such form as they consider appropriate. They are also required to notify the applicant of the reasons for their decision and advise the applicant of their right to make an application for review of the inclusion of that information by the independent reviewer. This marks a change from higher level disclosures issued under the 1997 Act and PVG Act, where there is no separate category of childhood information distinct from other convictions, and therefore no prior consideration of whether it is appropriate to include them in a disclosure.
Section 14: Provision of relevant Scottish police information
34.Before providing a Level 2 disclosure to an applicant, Ministers must ask the chief constable (defined in section 69 as the chief constable of the Police Service of Scotland) if they have any information which the chief constable reasonably believes to be relevant for the purpose of the disclosure, and which in the chief constable’s opinion ought to be disclosed. Such information is commonly referred to as “other relevant information” or “ORI”. The chief constable is required to comply promptly with a request from Ministers under this section, but need not provide information which the chief constable thinks would be contrary to the interests of the prevention or detection of crime. Subsection (4) provides that ORI from the chief constable can include information with respect to “relevant behaviour” within the meaning of section 5(1)(a) of the ACR Act. Under subsection (5) the chief constable may only provide information relating to a time when the applicant was under the age of 12 where the ACR Act procedures have been followed and it is determined by the independent reviewer, or on an appeal to a sheriff, that the information ought to be included in a Level 2 disclosure. It is expected that similar provision in relation to the other relevant police forces in the UK will be made by order under section 104 of the Scotland Act 1998.
Section 15: Provision of relevant overseas police information
35.Before providing a Level 2 disclosure to an applicant, Ministers must ask the chief officer of every relevant overseas police force to provide information that the chief officer reasonably believes is relevant for the purpose of the disclosure and that in the chief officer’s opinion ought to be included in the disclosure. Subsection (6) provides the definition of “chief officer” for the purpose of this section and that “overseas police force” includes (a) the States of Jersey Police Force, (b) the salaried police force of the Island of Guernsey, (c) the Isle of Man Constabulary and (d) other equivalent police forces outside the UK, the Channel Islands and the Isle of Man. This subsection also provides the Scottish Ministers with the power to prescribe “relevant” overseas police forces, which is the detailed criteria that makes an overseas police force relevant for the purpose of the Scottish Ministers requesting information that meets the two-part test.
36.Under subsection (2), where such information is provided, the Scottish Ministers must arrange for a review to be carried out by the independent reviewer. The review process for relevant overseas police information differs from the process for relevant information provided by the chief constable of the Police Service of Scotland because the Scottish Parliament cannot impose statutory obligations on overseas police forces in the way it can for the chief constable and the independent reviewer. The independent reviewer must decide if the information is relevant for the purpose of the disclosure and whether the information ought to be included in the disclosure. Subsection (4) provides that it is only if the outcome of the review process (including any appeal against the independent reviewer’s decision) is that the two-part test is met that the information can be included in a Level 2 disclosure. The Scottish Ministers may make further provision by regulations under subsection (5) about the procedural aspects of the independent reviewer carrying out a review of relevant overseas information.
Section 16: Further information for certain purposes: non-PVG scheme members
37.Section 16 provides for further information to be included in a Level 2 disclosure in cases where the disclosure is for a prescribed purpose. The purposes to which this section applies will be set out by regulations subject to the negative procedure and will relate to children and protected adults (but will be roles which fall short of regulated roles for which PVG scheme membership would be mandatory). Where one of the prescribed purposes applies, Ministers must include on the disclosure any further information about the individual, in addition to the information which must always be included in a Level 2 disclosure in terms of section 8.
38.The further information which must be disclosed is: whether the applicant is barred from carrying out a regulated role with either children or adults (as relevant to the purpose of the disclosure) and, if barred, information about why; whether Ministers are considering the applicant for listing under the PVG Act and, if they are, whether any standard conditions have been imposed on the applicant under the new section 13A inserted into the PVG Act by section 76(2) of the Act; and whether any prescribed civil court orders are in force against the applicant.
Section 17: Further information for certain purposes: PVG scheme members
39.Section 17 provides for further information to be included in a Level 2 disclosure in cases where the applicant is a PVG scheme member and the purpose of the disclosure is to enable or assist another person to consider the applicant’s suitability to do a regulated role. Consideration of suitability is further defined by section 68. Ministers must include on the disclosure any further information about the applicant, in addition to the information which must always be included in a Level 2 disclosure in terms of section 8.
40.The further information which must be disclosed is: confirmation that the applicant is a scheme member for the regulated role of the type to which the Level 2 disclosure relates; whether Ministers are considering the applicant for listing under the PVG Act and, if they are, whether any standard conditions have been imposed on the applicant; and whether any prescribed civil court orders are in force against the applicant.
41.In cases where a scheme member participates in the Scheme for both types of regulated role, but the purpose of the disclosure only relates to one type, the Level 2 disclosure must not include information that is only relevant to the other type of role.
Section 18: Provision of Level 2 disclosure to accredited bodies
42.An applicant who receives a Level 2 disclosure has the choice, within a period to be prescribed by regulations subject to the negative procedure, either to ask Ministers to share a copy of the disclosure with the accredited body that countersigned the application, or to notify Ministers of an intention to seek a review under section 20. Ministers must make the disclosure available to the accredited body on request by the applicant.
43.The individual can change their mind in cases where they have indicated an intention to seek a review. To do so they must make a request before the end of the prescribed period for Ministers to share their Level 2 disclosure with the accredited body. If the individual takes no action and does not notify Ministers of their decision either to share the disclosure or seek a review, the disclosure lapses at the end of the prescribed period and nothing more may be done with it. However, a failure to act does not prevent the individual from making another Level 2 disclosure application for the same purpose.
44.If the provisions in this section are not followed, Ministers are not otherwise permitted to make the disclosure available to the accredited body or any other person. This is a change from the law for standard and enhanced disclosures under the 1997 Act, and the PVG scheme record under the PVG Act, which are usually provided to the accredited body without the need for a further request by the applicant that disclosure should take place.
Section 19: Crown employment
45.This section excludes the requirement for an application for a Level 2 disclosure to comply with section 12 where it is needed in connection with Crown employment. Instead of being countersigned by an accredited body, the application must be accompanied by a statement of the purpose for which the disclosure is required (which, as under section 12, must be one in relation to which the protections against self-disclosure of spent convictions have been disapplied (see paragraph 29 of these notes)). It must also be accompanied by a statement that it is required to consider the applicant’s suitability for a Crown appointment. Subsection (3) lists the persons who may make the necessary statement to accompany the application. Provision is made in subsection (5) so that any reference to the accredited body that countersigned an application for a Level 2 disclosure in the rest of Part 1, or to the accredited body to whom a Level 2 disclosure is made available, is to be read as a reference to the person making the statement under subsection (1). Subsection (6) ensures that references to the purpose of the disclosure in Part 1 are to be read as the purpose mentioned in the statement that accompanied the disclosure.
‘Affirmative regulations’ means a type of secondary legislation that must be approved by the Scottish Parliament before it is made. Information about secondary legislation in the Scottish Parliament can be found here: https://www.parliament.scot/parliamentarybusiness/26510.aspxBack [1]
The central policy behind the 1974 Act is that people should be able to move on from their previous offending behaviour after sufficient time has elapsed and where their behaviour was not of a severity that it must be disclosed forever. It is recognised, however, that the protection provided by the 1974 Act could not and should not apply in all circumstances. To deal with this, the Scottish Ministers have a power to make certain exclusions and exceptions to that general protection.
The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 made under section 4(4) of the 1974 Act sets out the circumstances in which an individual cannot deny the existence of a spent conviction. Article 3 of the order excludes the application of section 4(1) in relation to proceedings specified in schedule 1 of the Order and in respect of any proceedings relating to a decision mentioned in Part 1 of schedule 2. Article 4 excludes the application of section 4(2) in relation to the questions listed in schedule 3. These are questions asked to assess the suitability of an individual for a variety of occupations, positions, licences and registrations. In this respect, the reference to a “question” is to be read in the context of section 4(2)(a) and (b) of the 1974 Act and means a question about a person’s previous convictions, offences, conduct or information. Finally, article 5 excepts from section 4(3) a number of professions, offices, employments, occupations and decisions listed in schedule 4 and Part 1 of schedule 2.