The general principles of the Disclosure (Scotland) Bill have been approved by the Scottish Parliament and the bill is on track to radically overhaul the way that disclosure of criminal records is administered in Scotland. We take a look at what will change and highlight some of the key the issues under consideration as the bill moves closer to becoming law.
Existing statutory framework
The current disclosure regime is complex. It has evolved over many years and now consists of four categories of disclosure - basic, standard, enhanced and Protection of Vulnerable Groups (PVG).
The system is governed by three separate Acts:
- The Rehabilitation of Offenders Act 1974 (the 1974 Act);
- Part 5 of the Police Act 1997 (the 1997 Act); and
- Part 2 of the Protection of Vulnerable Groups (Scotland) Act 2007 (the PVG Act).
The scheme was further amended by two Remedial Orders, one in 2015 to end the practice of disclosing all spent convictions on higher level disclosures and one in 2018 which introduced a right of application to a sheriff to have serious offences removed from a person’s disclosure certificate after a certain period of time. Both Orders were made in response to successful legal challenges.
This fragmented statutory framework underlines the need for legislative simplification but it is not a straightforward task. The fact that the regime has been challenged twice in recent years demonstrates the difficulty of balancing protection of the public with individuals' rights. Striking that balance will be critical to the success of the new scheme, as will ensuring coherence across other related legislation.
The Disclosure (Scotland) Bill
The bill focuses on safeguarding children and vulnerable adults whilst balancing an individual’s right to move on from offending and get on with their life. The proposals would repeal and replace Part 5 of the 1997 Act as it applies in Scotland, amend the PVG Act and move towards a more digital system of disclosure. The main objectives of the bill include to:
- streamline the number of disclosure products, replacing the current four-tier scheme with a simpler Level 1 and Level 2 disclosure;
- end the automatic disclosure of convictions accrued by an individual while aged 12 to 17 years old;
- improve the process to have certain spent convictions removed from Level 2 disclosures;
- provide Level 2 disclosure applicants with a right to comment on proposed other relevant information (“ORI”) prior to that information being issued to a third party;
- make it a requirement that anyone carrying out a regulated role (the new concept to replace regulated work), whether paid or unpaid, must be a member of the PVG Scheme;
- end life-time membership of the PVG Scheme and replace it with a five-year membership period;
- amend the lists of offences in schedules 8A and 8B of the 1997 Act - Schedule 8A offences are considered to be so serious and/or relevant that they must always be disclosed, unless a sheriff orders otherwise. Schedule 8B offences are less serious but demonstrate concerning behaviour which may be relevant.
One of the main policy changes introduced by the bill is to end the automatic disclosure of convictions accrued while aged between 12 and 17 years. Instead, inclusion of such convictions in Level 2 disclosures will be subject to an assessment by Disclosure Scotland, acting on behalf of Scottish Ministers, as to whether or not they ought to be disclosed. This policy is said to recognise adolescence as a "unique phase of life" and is intended to help young people, particularly care experienced young people, move on from early criminal behaviour.
The two-part test for decision-making
There is a new two-part legal test for disclosure of certain information in Level 2 disclosures: firstly whether information about childhood convictions is "relevant" to the purpose of the disclosure and secondly whether it "ought to be included" (section 17 of the bill).
A similar two part test - that information must be both "relevant" and "ought to be included" - also applies to the inclusion of Other Relevant Information (ORI) provided by the chief constable (section 18 of the bill). The test is more subjective for the chief constable who is to provide ORI which they "reasonably believe to be relevant" for the purpose of the disclosure and which "in the chief constable's opinion, ought to be included in the disclosure".
Following recommendations in the stage 1 report by the Education and Skills Committee, a new section 34B was introduced into the bill at Stage 2 to set out the high level principles upon which these decisions are to be based. This is intended to improve the transparency of the decision making process. Draft statutory and non-statutory guidance on the application of the legal tests is also anticipated to provide clarity on how the tests will be applied.
Independent review of disclosure decisions
A significant change in the disclosure procedure is that individuals will now see the disclosure product before it is provided to a third party. This removes the chance of information being revealed to potential employers without the individual knowing and gives the opportunity for the individual to apply for information to be removed.
Removing convictions from a disclosure certificate currently requires a summary application to the sheriff. That process is time consuming, expensive and intimidating for potential applicants. The bill will change that, and the new first step will be to make a simple review request to Disclosure Scotland. The independent reviewer will give feedback on the decision, so the person who is applying for the disclosure certificate will be significantly better informed under the new system than they were under the old system.
Current proposals would prevent under-16s from obtaining PVG scheme membership. There are concerns that this could be interpreted as excluding teenagers from undertaking voluntary work with vulnerable groups as such activity would fall within the category of a "regulated role" and necessitate PVG scheme membership. Although an amendment to address this situation within the legislation was withdrawn at Stage 2, the issue remains under review and the Scottish Government has advised that it will develop guidance for organisations to continue to offer volunteering opportunities to those under the age of 16. It was noted during the debate that it is already the case that organisations in the rest of the UK cannot obtain standard and enhanced disclosures on children under 16 and the Scottish Government is aligned to this thinking.
Level 1 disclosures will be available to any person for any purpose, in the same way that basic disclosures are at present. Level 2 disclosures will only be available for a specific purpose, in the same way that higher level disclosures are at present, and the application will require to be countersigned by an organisation which has registered with Disclosure Scotland. Under the new bill registered organisations will be known as an "accredited body" rather than a "registered person". As is presently the case, companies and charities will still be able to use a third party accredited body – an "umbrella body" - to undertake disclosure checks on their behalf.
Coherence of reforms
The bill is part of a wider statutory reform of the management of offenders and the treatment of convictions of individuals under 18 in Scotland. Related reforms have been implemented by the Management of Offenders (Scotland) Act 2019 and the Age of Criminal Responsibility (Scotland) Act 2019 and a cohesive approach will be important to ensure that the new legislative package operates as a whole.
One issue raised in this regard is that the Management of Offenders (Scotland) Act 2019 includes provision for under-18s based on the date of conviction, whilst the bill and the Age of Criminal Responsibility (Scotland) Act 2019 both use the date of the offence. There is a rebuttable presumption in section 41 of the bill that a person was the same age at the date of conviction as at the date of commission of the offence but it is anticipated that further consideration will be given more generally to how the bill will interact with other legislation.
This bill has significant cross-party support and the general principles have been approved by the Scottish Parliament at Stage 1. Several important amendments were then addressed by the Education and Skills Committee during the Stage 2 process and the amended version of the bill will now move forward to Stage 3.
Get in touch
If your organisation requires advice in relation to how the changes to the disclosure of criminal records affects you, please get in touch with a member of our team. Contact – Jennifer Jack