Self-disclosure of previous convictions and alternatives to prosecution: guidance

Introduction

Guidance for the self-disclosure of previous convictions & alternatives to prosecution in Scotland under the Rehabilitation of Offenders Act 1974 ("the 1974 Act")^[1]

Who is the guidance for?

Anyone with a conviction or who is given an alternative to prosecution ("AtP") (e.g. fiscal warning, fiscal fine) and who is looking for a job (e.g. working in an office or in retail) or wanting to get insurance, a bank account, a mortgage or rent a property. It is also aimed at employers and those organisations/individuals who provide advice to people who have been convicted of an offence or given an alternative to prosecution.

Why will it be helpful?

It will allow individuals, employers and those who provide advice to know how the rules of self-disclosure operate. It will help reduce the risk that individuals either under or over self-disclose information relating to their previous convictions – instead they will better know what information should and will be disclosed and what information will not. This will aid those individuals by, for example, allowing them to more easily gain suitable employment and be able to move on with their lives. It should also aid employers to understand the rules regarding self-disclosure and help prevent them from unlawfully using spent conviction/AtP information against someone when making recruitment decisions.

Why is there a need for rules regarding the self-disclosure of previous convictions/AtPs?

In Scotland, our system of self-disclosure is designed as an effective way of minimising the risk to an employer, it protects the public and it is necessary to support the assessment of an individual applying for a job through considering previous relevant behaviour.

Insurance companies also use the self-disclosure of previous convictions in order to assess risk and to set a premium for their product. Banks and building societies may also ask about previous convictions when someone applies for a mortgage. Private landlords and letting agents may also ask about previous convictions when renting out their properties.

If statutory rules did not exist, then the common law position in Scotland regarding self-disclosure would require people to answer, truthfully, any questions about their previous offending history, if asked. Without the 1974 Act, the common law position would require people to answer, truthfully, any questions about their offending history for the rest of their lives. So the 1974 Act is an important piece of legislation that offers legal protection to individuals with certain previous convictions or AtPs not to self-disclose them in accordance with the rules under the legislation.

Therefore, it is necessary for individuals to understand the rules in relation to self-disclosure to ensure they comply with Scots law.

What will happen if I do not follow these rules?

An employer may require a criminal conviction certificate (commonly known as a basic disclosure) issued by Disclosure Scotland when someone applies for paid or unpaid work. Disclosure Scotland is a Scottish Government executive agency which carries out criminal record checks in Scotland. A basic disclosure is a certificate which highlights any unspent convictions on an individual's criminal record.

If a person does not disclose an unspent conviction and it is included in a basic disclosure issued by Disclosure Scotland then that person may lose their job or not be considered for the post due to providing wrong information on an application form.

The fact that unspent conviction information is being provided to an employer is not in itself a bar to employment. It is up to the employer to consider whether it is relevant for the specific post being applied for. However, lying about information that should have been disclosed is unlikely to be considered acceptable by a prospective employer.

An insurance company may not pay out if a claim has been made as the insurance may be rendered invalid if a person does not provide all relevant details asked for or if they make a misrepresentation. A person may not be able to obtain a mortgage or a loan as a result of providing false information on an application form.

It is important that a person self-discloses details of convictions or AtPs in line with the rules laid down in the 1974 Act, if asked. If they disclose too little, they will not be complying with Scots law.

Which parts of the UK does the Rehabilitation of Offenders Act 1974 apply to?

The 1974 Act applies in Scotland and in England and Wales. However there are differences in the way in which it, and related legislation, operates in England and Wales.

This document is a guide to Scotland only.

For information on the 1974 Act in England and Wales, please visit: https://www.gov.uk/government/publications/new-guidance-on-the-rehabilitation-of-offenders-act-1974

Information about the relevant Northern Irish legislation, the Rehabilitation of Offenders (Northern Ireland) Order 1978 and the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 can be found here: https://www.nidirect.gov.uk/campaigns/accessni-criminal-record-checks

Glossary

"The 2019 Act" The Management of Offenders (Scotland) Act 2019

"1974 Act" The Rehabilitation of Offenders Act 1974

"2013 Order" The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013

"1995 Act" The Criminal Procedure (Scotland) Act 1995

"1997 Act" The Police Act 1997

"MH 2003 Act" The Mental Health (Care and Treatment) (Scotland) Act 2003

"The 2015 amendment Order" The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015

"The 2016 amendment Order" The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2016

"The 2016 amendment (No. 2) Order" The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment (No. 2) Order 2016

"The 2018 amendment Order" The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2018

"The 2020 amendment Order" The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2020

"2003 Act" Sexual Offences Act 2003

"AtP" Alternative to prosecution

"CPO" Community Payback Order

"DTTO" Drug Testing and Treatment Order

"RLO" Restriction of Liberty Order

"MHTS" The Mental Health Tribunal for Scotland

"CO" Compulsion Order

"CORO" Compulsion Order with Restriction Order

"CICS" Criminal Injuries Compensation Scheme

"CICA" Criminal Injuries Compensation Authority

"CHS" Criminal History System

"PVG" Protection of Vulnerable Groups

Important Note: This is intended as general guidance only. It is not legal advice and must not be regarded as a definitive interpretation of the 1974 Act in Scotland. Anyone in doubt should seek their own legal advice.