Disclosure Scotland information about the Offence Against the Person Act 1861: FOI release

Information requested

You asked the following four questions:

1) Do Disclosure Scotland recognise an offence under The Offence Against the Person Act 1861 if it is not listed under 'Offences that must be disclosed according to rules' on spent convictions?

2) Is an offence under the 'Offences Against the Person Act 1861' an offence that must be disclosed regardless of how long has passed since a conviction?

3) Would a Basic Scottish Disclosure show an offence under the Offences Against the Person Act 1861?

4) Would a higher-level disclosure show an offence under the Offences Against the Person Act 1861?

Response

1) Do Disclosure Scotland recognise an offence under The Offence Against the Person Act 1861 if it is not listed under 'Offences that must be disclosed according to rules' on spent convictions?

Yes, the list, ‘Offences that must be disclosed according to rules’ on a higher level disclosure is not an exhaustive list. Disclosure of information depends on (amongst other criteria) the type of offence.The Offences Against the Person Act 1861 details within the Act a number of different offences that could be disclosed.For example, murder or manslaughter abroad. Additionally, any offence under the law of England and Wales or Northern Ireland, or any other country or territory outside the United Kingdom which corresponds to any offence specified in this list can be disclosed.

2) Is an offence under the 'Offences Against the Person Act 1861' an offence that must be disclosed regardless of how long has passed since a conviction?

Disclosure of information depends upon the type of offence, the disposal or outcome of the case and the length of time that has passed since the conviction. Certain offences under the Offences Against the Person Act 1861 correspond to the list of ‘Offences that must be disclosed’ on a higher level disclosure and this includes convictions for offences such as murder. Certain offences under this Act correspond to the ‘Offences that must be disclosed according to rules’ on a higher level disclosure such as an offence of assault occasioning actual bodily harm which corresponds to 'assault' under the law of Scotland.

3) Would a Basic Scottish Disclosure show an offence under the Offences Against the Person Act 1861?

Under the Rehabilitation of Offenders Act 1974, some criminal convictions can be treated as 'spent' after a certain length of time. Spent convictions are not included on a basic disclosure. If a conviction under the Offences Against the Person Act 1861 is unspent, then it will be included on a basic level disclosure.

4) Would a higher-level disclosure show an offence under the Offences Against the Person Act 1861?

If rules for disclosure are met, an offence under the Offences Against the Person Act 1861 can be disclosed. Higher level disclosures are the standard disclosure, enhanced disclosure under the Police Act 1997 and the PVG scheme record under the Protection of Vulnerable Groups (Scotland) Act 2007. Higher level disclosures contain unspent and certain spent convictions.

If a conviction is for an offence listed in ‘Offences that must be disclosed’ then it will always be disclosed on a higher level disclosure. The individual may make an application to the sheriff to have a conviction removed from their disclosure if it spent and 15 years has passed, and they were over 18 at the date of conviction (or 7 years and 6 months has passed and they were under 18).

If a conviction is for an offence listed in ‘Offences disclosed according to rules’ it will continue to appear on a higher level disclosure after it is spent for 15 years if they were over 18 at the date of conviction or 7 years and 6 months if they were under 18. After that time period has passed the conviction will become protected and no longer disclosed by Disclosure Scotland.

The individual may make an application to the sheriff to have the conviction removed from their disclosure once the conviction is spent.

It is important to note that due to the length of imprisonment imposed certain offences under the Offences Against the Persons Act 1861 will never be spent and therefore will always be included on any level of disclosure.

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