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

(1) General

1. What is the Rehabilitation of Offenders Act 1974?

The Rehabilitation of Offenders Act 1974 ("the 1974 Act") provides for a system of protection to individuals with convictions or non-court disposals (commonly known as alternatives to prosecution ("AtPs")). This protection is such that a person is not required to self-disclose these matters in certain circumstances as laid out in the 1974 Act. The 1974 Act restricts the self-disclosure of previous convictions/AtPs. Without it the common law position would still apply whereby a person asked about any convictions or AtPs would have a responsibility to tell the truth.

The protections in the 1974 Act apply when the conviction or AtP is "spent". When a conviction is treated as spent depends on the "disclosure period" applicable to the conviction. The disclosure period applicable to a conviction under the 1974 Act depends on the sentence imposed as a result of being convicted of an offence. There are rules in the 1974 Act which set out when a conviction becomes spent if more than one sentence is imposed and/or if the person is convicted of further offences before any existing convictions are spent.

When an AtP becomes spent depends on the type of AtP given.

There is nothing in the 1974 Act that prevents an individual from gaining employment before their conviction or AtP is spent and it is not intended as a means of punishing people for their previous offending behaviour. Rather, it is about how information about an individual's previous offending behaviour is considered as part of the individual's future life once they have served their sentence. Therefore, the 1974 Act is an important piece of legislation that offers legal protection to an individual not to self-disclose a previous conviction/AtP for general employment purposes or for home insurance or mortgage purposes and as a result, restricts self-disclosure where appropriate.

The general rule is that once a conviction or AtP is spent, that individual does not have to reveal it and cannot be prejudiced by it. This means that if an individual whose convictions or AtPs are all spent is asked on a job application form, or at a job interview, or on an insurance form whether they have a criminal record, they do not have to reveal or admit its existence. Moreover, an employer cannot refuse to employ someone or dismiss someone because of a spent conviction or spent AtP.

However, there are some categories of employment and proceedings to which the 1974 Act does not apply. This is because it is considered appropriate that relevant spent convictions should be taken account of when employers are making recruitment decisions for jobs that involve a particular level of trust (e.g. working for Police Scotland, in certain regulated professions such as being a solicitor or accountant, in childcare, health professions and education being some examples). This is to ensure there is adequate protection for children and vulnerable people in particular and to ensure public confidence is maintained in our police and judiciary by allowing specific employers to be informed about the background of potential/actual employees even when the relevant conviction has become spent. Relevant spent convictions can also be taken account of in proceedings set out under article 3 of the 2013 Order and by licensing authorities and the Police in making determinations as to whether an individual should hold or be able to renew certain licences or permits (e.g. taxi licence, firearm, explosive licence).

These exceptions to the protections of the 1974 Act are set out in secondary legislation made under the 1974 Act. The current SSI in force is the 2013 Order: http://www.legislation.gov.uk/ssi/2013/50/contents/made^[2]

The 2013 Order was amended in 2015, 2016, 2018 and most recently in 2020.

The 2015 amendment Order

http://www.legislation.gov.uk/ssi/2015/329/contents/made

The 2016 amendment Order

http://www.legislation.gov.uk/ssi/2016/91/contents/made

The 2016 amendment (No. 2) Order

http://www.legislation.gov.uk/ssi/2016/147/contents/made

The 2018 amendment Order

http://www.legislation.gov.uk/ssi/2018/51/contents/made

The 2020 amendment Order

http://www.legislation.gov.uk/ssi/2020/45/contents/made

Further information on self-disclosure when the protection of the 1974 is dis‑applied is provided under part 4 of this guidance.

2. What happens when a conviction/AtP becomes spent?

The general rule is that, once a conviction or AtP is spent the individual becomes a "protected person" under the 1974 Act. As a result, they do not have to reveal the spent conviction/AtP and cannot be prejudiced by it for general disclosure purposes.

This means that if an individual whose convictions or AtPs are all spent is asked on a job application form, or at a job interview, or on an insurance form whether they have a criminal record, they do not have to reveal or admit its existence. Moreover, an employer cannot refuse to employ someone or dismiss someone and an insurance company should not refuse or increase premiums as a result of a spent conviction or spent AtP.

3. What are the types of convictions which always have to be disclosed?

Certain convictions are not capable of becoming spent. This is where an "excluded sentence" is imposed in respect of that conviction.

Excluded sentences are listed in section 5(1) of the 1974 Act.

Sentences listed in section 5(1) of the 1974 Act are as follows;

(a) a sentence of imprisonment for life.

(b) a sentence of imprisonment or corrective training for a term exceeding 48 months.

(c) a sentence of preventive detention.

(d) a sentence of detention during Her Majesty's pleasure or for life under section 209 or 218 of the Armed Forces Act 2006 ("the 2006 Act") or under section 205(2) or (3) of the Criminal Procedure (Scotland) Act 1995 or a sentence of detention for a term exceeding thirty months passed under section 209 of the 2006 Act.

(da) a sentence of detention for a term exceeding 48 months under section 207 (detention of young offenders) or 208 (detention of children convicted on indictment) of the Criminal Procedure (Scotland) Act 1995.

(e) a sentence of custody for life.

(f) a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003, a sentence of detention for public protection under section 226 of that Act or an extended sentence under 226A, 226B, section 227 or 228 of that Act (including any sentence within this paragraph passed as a result of any of sections 219 to 222 of the Armed Forces Act 2006).

4. Does the 1974 Act apply to Service personnel?

Yes. The 1974 Act applies to everyone convicted of a criminal offence or a service disciplinary offence (for example absence without leave) by either a civilian court (in the cases of criminal offences) or a Service Court or the Commanding Officer (in the cases of criminal or service disciplinary offences). The same disclosure periods apply to sentences which are imposed in the service justice system as are imposed by the civilian justice system.

Example

A fine imposed by a Sheriff Court and a fine imposed by a Court Martial would each have the same disclosure period of a year beginning with the date of conviction.

There are certain service sentences that can only be imposed by the service justice system (e.g. sentence of dismissal from Her Majesty's service or service detention). There are specific disclosure periods for such sentences which are set out in sections 5B, table B and 5I of the 1974 Act.

Please see the table at question 17 below - "What are the disclosure periods for service disciplinary offences?"

5. Does the 1974 Act apply to decisions made in Children's Hearings?

Yes. Section 3 of the 1974 Act provides special provision with respect to certain disposals by children's hearings. This section of the 1974 Act provides that, where a child is referred to a children's hearing on grounds that the child committed an offence, the acceptance or establishment of that ground is a conviction for the purposes of the 1974 Act and the disposal by the hearing is a sentence.

The purpose of section 3 is to ensure disposals from a children's hearing are given protection under the 1974 Act. The disclosure period for all children's hearing disposals is zero which means they are spent immediately (see section 5J of the 1974 Act).

6. Does the 1974 Act cover being arrested or being charged but not convicted of an offence?

No. The 1974 Act only applies to individuals convicted of an offence or individuals given an AtP. Therefore, there are no protections under the 1974 Act for individuals arrested or charged with an offence. This means, a person arrested or charged with an offence is required under common law to self-disclose this fact, if asked.

However, we would expect an employer or an insurance company not to ask such questions for general employment or for home insurance purposes. The fact the individual has not been convicted of an offence or given an AtP would limit any risk and as such, should not be considered. Therefore, it would not be appropriate or necessary for the 1974 Act to provide protections to individuals just because they have had an interaction with the justice system.

7. Does the 1974 Act apply to decisions made in Immigration hearings and Nationality hearings?

Immigration and nationality decisions are exempt from the 1974 Act^[3]. This means that both spent and unspent convictions can be considered by the UK Border Agency when making these assessments.

8. Do individuals have to disclose all their convictions/AtPs for a visa application to visit another country even if they are spent?

The eligibility requirements for a visa to travel to another country are a matter for the country concerned and individuals should contact the embassy of the relevant country if they require advice.

9. Will a conviction or AtP be removed from a person's criminal record once it is spent?

The Criminal History System ("CHS") has non-statutory rules about recording and weeding on the CHS. This is called the "Recording, Weeding and Retention of Information on CHS" and means that after certain criteria are met, the convictions are deleted from the system. Each case is weeded (i.e. completely removed) from the CHS on its individual merits based on the appropriate retention rule. Any previous or subsequent information does not affect the retention rule applicable to another record. In general, information will be weeded from the CHS when:

• For minor offences such as theft, the subject to whom the data refers must be 40 years or over and the information held must be at least 20 years old, (i.e. the 40/20 Rule).
• For more serious offences, for example assault or where the court imposed a custodial sentence, the subject to whom the conviction applies must be 70 years or over and the information held must be on his record for at least 30 years, (i.e. the 70/30 Rule).
• Serious convictions such as murder are retained in the CHS until the subject's 100th birthday or as per standard weeding rules where an individual is confirmed dead. Anyone who commits a sexual offence has their conviction retained for 100 years from their birth.

Further information can be found by clicking on the attached link; https://www.scotland.police.uk/assets/pdf/340047/341626/recording-weeding-and-retention-of-information-on-criminal-history-system-chs?view=Standard

10. A person has an unspent conviction. Does this affect their eligibility for claiming compensation from the Criminal Injuries Compensation Scheme, ("CICS")?

Yes. The Criminal Injuries Compensation Authority (CICA) may refuse or reduce a payment if the individual has an unspent criminal conviction. The CICS uses the same definition of "conviction" and the same determination of whether a conviction is spent, or a sentence is excluded from rehabilitation, as the 1974 Act.

Please note: In determining whether to apply the Scottish disclosure periods or the rehabilitation periods for England and Wales, CICA will apply the appropriate legislation based on where the incident took place. Therefore, someone resident in Scotland who is injured in London when they are there on business or on holiday may have their award withheld or reduced if they have a conviction which is spent in Scotland but unspent in England and Wales. This is because the periods before which a conviction becomes spent are different in Scotland as compared to England and Wales.

A payment will not be made if an individual has an unspent conviction at the date of application, or is convicted before a final decision is made (where that conviction is not immediately spent), for an offence which resulted in:

a) an excluded sentence being imposed;

b) a custodial sentence;

c) a sentence of service detention;

d) removal from Her Majesty's Service;

e) a community order;

f) a youth rehabilitation order; or

g) a sentence equivalent to a sentence under sub-paragraphs (a) to (f) imposed under the law of Northern Ireland or a member state of the European Union, or such a sentence properly imposed in a country outside the European Union.

If on the date of a person's application they have an unspent conviction which resulted in a sentence not included in the list above, an award under the CICS will be withheld or reduced unless there are exceptional reasons not to do so.

This does not apply to a conviction for which the only penalty imposed was one or more of an endorsement, penalty points or a fine under schedule 2 of the Road Traffic Offenders Act 1988.

The CICS can be accessed here: https://www.gov.uk/government/publications/criminal-injuries-compensation-scheme-2012, and guidance on the Scheme can be accessed here: https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide.

11. What is the difference between "general disclosure" and the circumstances when the protections of the 1974 Act are dis‑applied?

General/basic disclosure

Only unspent convictions and unspent AtPs are required to be self-disclosed for general disclosure purposes (e.g. working in a shop or a factory or applying for home insurance). A criminal conviction certificate (commonly known as a basic disclosure certificate) issued by Disclosure Scotland will only include details of a person's unspent convictions. For each conviction it includes the date of conviction, the court/court type, the offence committed and the sentence/disposal.

Circumstances when the protections of the 1974 Act are dis‑applied

The 1974 Act provides an order making power to exclude or modify the application of the protections conferred by the 1974 Act. If the protections conferred by the 1974 Act are excluded (i.e. dis-applied) a conviction is to be disclosed even if it is spent. The current order in force is the 2013 Order which outlines the exclusions and exceptions under the 1974 Act. The exclusions and exceptions in the 2013 Order apply to circumstances where state disclosure by Disclosure Scotland is not, or cannot be used, and also to circumstances where state disclosure by Disclosure Scotland is used.

Further details about these circumstances can be found at part 4 of this guidance.

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.