Criminal disclosure reforms

Changes to rules about previous criminal convictions which people need to disclose to prospective employers will take effect this year.

The reforms will, from 30 November, reduce the length of time that many convictions need to be disclosed by most job applicants, or in other instances such as when applying for insurance.

For those aged 18 or older at time of conviction, a six month custodial sentence would need to be disclosed for two-and-a-half years rather than the current period of seven years.

Meanwhile a fine will be considered ‘spent’, and therefore not needing to be disclosed, after 12 months rather than the current five years.

For those under 18 when convicted, the disclosure period for a six month prison sentence will be reduced from three-and-half years to one-and-half years and a fine will be six months instead of two-and-a-half years.

More than a third of adult men in Scotland have been estimated to have a criminal record and the reforms were supported across the Parliament when the Management of Offenders (Scotland) Act was passed in 2019.

The reforms will not change disclosure periods for more serious convictions which result in prison sentences above four years.  Nor will disclosure rules for sensitive occupations such as teaching or medicine be altered.

Justice Secretary Humza Yousaf said:

“Parliament agreed that current disclosure periods are too long. Employment and the skills, opportunities and hope that it brings, can support routes out of offending, thereby contributing to safer communities.

“These important reforms balance the requirement for safeguards to understand a person’s recent offending behaviour with the need to allow people to move on with their lives – to seek gainful employment, support their families and contribute positively to their communities.

“I am grateful for the work of Disclosure Scotland in preparing for these changes, which can have a positive impact on our economy as well as society. Employers, insurers and others who routinely require information on criminal convictions should be aware of the changes so their processes continue to comply with the law.

“Even where potential employees need to disclose an unspent conviction, I hope employers can, where appropriate, see that as just one aspect of the person, alongside the skills and experience they can bring. Several high profile employers already take this approach and regularly pay testament to the rewards of doing so.”

The changes are supported by the employer-led Release Scotland network, which is chaired by Keith Rosser of recruitment company Reed.

Mr Rosser said:

“The Management of Offenders Act is incredibly important for business. It removes many convictions that have no bearing on a person's suitability for a job from the recruitment process. By widening the pool of talent for employers and simplifying their recruitment decision this will lead to quicker responses for all and can only improve business resilience and sustainability.”

Dughall Laing of Recruit With Conviction, which supports employers and employability agencies in the recruitment of people with criminal records, said:

“The implementation of the new disclosure periods of the Management of Offenders Act cannot come at a better time, particularly due to the developing understanding of the economic and consequential impacts on employment of COVID-19.

“The potential for workers to find their historic, irrelevant or minor convictions are protected in recruitment can only enhance the chances for thousands of individuals to access new, fairer and more secure employment opportunities across Scotland.”

Background

Part 2 of the Management of Offenders (Scotland) Act 2019 comes into force on 30 November.  Further details can be read in the Act’s Explanatory Notes.

The reforms to these basic disclosure rules do not directly affect the Protection of Vulnerable Groups (PVG) scheme for sensitive roles such as teachers and doctors, where separate rules apply.

Today’s publication of detailed guidance provides employers, insurance companies and other organisations with just over three months to understand and prepare for implementation of the reforms, as well as ensuring affected individuals are also aware of what the changes mean for them.  Anyone seeking detailed information on how the changes apply to them or their organisation should read the technical guidance or summary guidance on the Scottish Government website, which also contains disclosure period tables.

Examples of the reductions, from November 30, in disclosure periods for custodial sentences from the date of conviction are as follows:

• 12 months will be reduced from 10 years to 3 years
• 24 months will be reduced from 10 years to 6 years
• 48 months will be reduced from always having to disclose to 10 years

For non-custodial sentences the disclosure changes include:

• For community payback orders, a reduction from 5 years to 12 months or the length of the order, whichever is longer
• A reduction from 5 years to 12 months for fines
• An admonishment or absolute discharge will no longer need to be disclosed

For under-18s receiving a custodial sentence, disclosure periods for custodial sentences are based on the length of sentence plus an additional “buffer period’. The reforms will half the buffer periods from their current length.

Further information about general disclosure and the PVG scheme can be found on the Disclosure Scotland website.