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

(3) Rules as to when convictions become spent

A conviction becomes spent, and a person treated as a protected person in respect of that conviction, on the expiry of the disclosure period applicable to the conviction.

Section 6 of the 1974 Act sets out the rules which determine the length of the disclosure period of a conviction. The disclosure period applicable to a conviction depends principally on the disclosure period applicable to the sentence imposed for that conviction.

However, the rules as to when a conviction becomes spent get more complicated when more than one sentence is imposed for a conviction or if a person is convicted of further offences before their existing convictions are spent.

This part of the guidance sets out those rules in more detail.

Rules under section 6

(1) Where only one sentence is imposed in respect of a conviction the disclosure period applicable to the conviction is, subject to the following provisions of this section, the period applicable to the sentence in accordance with sections 5 to 5I.

(2) Where more than one sentence is imposed in respect of a conviction (whether or not in the same proceedings), then, subject to the following provisions of this section, if the periods applicable to those sentences in accordance with sections 5 to 5I differ, the disclosure period applicable to the conviction shall be the longer or the longest (as the case may be) of those periods.

(2A) In subsections (1) and (2), the references to sentences do not include excluded sentences.

(3ZA) Subsection (3ZB) applies where:

(a) an order listed in subsection (3ZC) is imposed on a person in respect of a conviction for an offence,

(b) after the expiry of the disclosure period applicable to the conviction in accordance with subsection (1) or (2) ("the original disclosure period"), a further sentence for the offence is imposed on the person in consequence of breaching the order, and

(c) by virtue of the further sentence, the disclosure period applicable to the conviction in accordance with subsection (2) ("the new disclosure period") ends later than the original disclosure period.

(3ZB) Despite the expiry of the original disclosure period, the person is not to be treated for the purposes of this Act as a protected person in respect of the conviction until the expiry of the new disclosure period (and accordingly the conviction is not to be treated as spent until that period has expired).

(3ZC) The list is:

(a) an order for conditional discharge,

(b) a community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995,

(c) a drug treatment and testing order under section 234B of that Act,

(d) a restriction of liberty order under section 245A of that Act.

(3ZD) to (3ZE) Relates to powers to make regulations.

(3A) Without prejudice to subsection (2), where:

(a) an order is made under section 1(2A) of the Street Offences Act 1959 in respect of a conviction,

(b) after the end of the disclosure period applicable to the conviction the offender is dealt with again for the offence for which that order was made, and

(c) the disclosure period applicable to the conviction in accordance with subsection (2) (taking into account any sentence imposed when so dealing with the offender) ends later than the disclosure period previously applicable to the conviction,

the offender shall be treated for the purposes of this Act as not having become a protected person in respect of that conviction, and that conviction shall for those purposes be treated as not having become spent, in relation to any period falling before the end of the new disclosure period.

(4) Where:

(a) during the disclosure period applicable to a conviction, the person convicted is convicted of a further offence, and

(b) the disclosure periods applicable to the two convictions under this section would end on different dates,

the disclosure period which would end earlier is extended so as to end at the same time as the other disclosure period (but this rule is subject to subsections (4A) to (5B)).

(4A) Subsection (4B) applies where:

(a) in relation to the conviction of a person ("the first conviction") the court adjourns the case, or defers sentence,

(b) during the disclosure period applicable to the adjournment or deferral, the person is convicted of a further offence,

(c) a relevant sentence is imposed on the person in respect of the first conviction, and

(d) there is, by virtue of section 5J, no disclosure period applicable to that sentence.

(4B) Section 4 does not operate so as to extend the disclosure period applicable to the first conviction.

(4C) In subsection (4A):

(a) references to adjournments and deferrals are to those matters as mentioned in section 5E(1),

(b) a "relevant sentence" is any sentence other than an adjournment or deferral (as mentioned in section 5E(1)) or, where applicable, a further such adjournment or deferral.

(5) A disclosure period is not extended in accordance with subsection (4) so as to end at the same time as another disclosure period if:

(a) the other disclosure period is applicable in accordance with section 5(2E) to an order:

(i) imposing on a person any disqualification, disability, prohibition, requirement or restriction, or

(ii) which is otherwise intended to regulate behaviour, and

(b) that order is the only sentence imposed in respect of the conviction to which the other disclosure period is applicable.

(5A) Subsection (5B) applies where:

(a) more than one sentence is imposed in respect of a conviction (whether or not in the same proceedings),

(b) none of the sentences is an excluded sentence, and

(c) one of the sentences is an order mentioned in subsection (5) in respect of which the disclosure period is applicable in accordance with section 5(2E).

(5B) In determining whether the disclosure period applicable to another conviction is, in accordance with subsection (4), extended by virtue of the disclosure period applicable to the conviction mentioned in subsection (5A)(a), the disclosure period applicable to the order is to be disregarded.

(6) In subsection (4)(a), the reference to a conviction for a further offence does not include:

(a) any conviction in England and Wales of a summary offence or of a scheduled offence (within the meaning of section 22 of the Magistrates' Courts Act 1980) tried summarily in pursuance of subsection (2) of that section (summary trial where value involved is small);

(b) any conviction by or before a criminal court in summary proceedings;

(bb) any conviction in service disciplinary proceedings for an offence listed in Schedule 1 to this Act; and

(c) any conviction by or before a court outside Scotland of an offence in respect of conduct which, if it had taken place in Scotland, would not have constituted an offence under the law in force in Scotland.

Q & A in relation to section 6

19. How does disclosure work if more than one sentence is imposed is respect of a conviction?

If more than one sentence is imposed in respect of a conviction (for example, a fine and a non-harassment order are both imposed), and the sentences have different disclosure periods attributable to them, the conviction requires to be disclosed in accordance with the longer or longest of these periods.

Example

If a 25 year old person gets convicted of an offence and is fined (12 month disclosure period) and is also given a 5 year non-harassment order (5 year disclosure period) then the disclosure period for that conviction will be 5 years.

This is because the disclosure period applicable to the conviction is the same as the disclosure period applicable to the non-harassment order, which has the longer of the two disclosure periods for the two sentences.

20. What happens if someone gets convicted again before the disclosure period of a previous conviction ends?

The answer to that question depends on the type of proceedings under which the subsequent conviction occurred.

Section 6(4) of the 1974 Act rule: Solemn proceedings

If someone gets convicted of a further offence, in solemn proceedings, before the end of the disclosure period applicable to the first conviction, then whichever of the two disclosure periods would end earlier is extended so as to end at the same time as the other disclosure period.

Example

A person aged 25 gets convicted of an offence and given a court fine. The disclosure period for that sentence is 12 months. As no other sentences are imposed the disclosure period applicable to that conviction is 12 months and the conviction would otherwise become spent after 12 months.

However, 6 months later the person is convicted of a further offence, on indictment in solemn proceedings, and given a 2 year custodial sentence. The disclosure period for that sentence will be 6 years. As no other sentences are imposed the disclosure period applicable to the conviction is 6 years.

The disclosure period for the first conviction is 12 months. The disclosure period for the second conviction is 6 years.

As the disclosure period for the second conviction is greater, the disclosure period for the first conviction is extended so that it will end at the same time as the disclosure period for the second conviction.

That is, both disclosure periods will end 6 years from the date of the second conviction for the offence which resulted in the custodial sentence. This means that both convictions may become spent 6 years following the date of conviction of the second offence (provided no further offences are committed in which the person is convicted in solemn proceedings).

However, there are 3 exceptions to this rule set out in the 1974 Act:

1) section 6(4A) to 6(4C)

2) section 6(5) to 6(5B)

3) section 6(6)

Section 6(4A) – 6(4C) of the 1974 Act rule: Adjournment and deferral

This rule is necessary to ensure the rule to extend disclosure periods under section 6(4) will not apply to situations where a case was adjourned or deferred, the person gets a further conviction during that period, and are then given a sentence with no disclosure period for the first offence. For instance, an absolute discharge or an admonishment. In such circumstances the second conviction will not impact on when the first conviction become spent.

Example

A person is convicted of an offence and sentencing is deferred for 6 months. During this period the person is convicted in solemn proceedings of a further offence and given a fine of £1,000. The disclosure period applicable to the fine is 12 months from the date of conviction.

After the 6 months deferral for sentencing in the first conviction the person is admonished for that first conviction.

The rule in section 6(4) would mean that the disclosure period applicable to the first conviction is extended to be the same as that of the second conviction (because that is longer). However, because an admonishment was given for that first conviction the rule in section 6(4B) applies and the disclosure period applicable to the first conviction is not extended. That means that the first conviction becomes spent.

Section 6(5) to 6(5B) rule: Ancillary orders

The rule in section 6(4) of the 1974 Act does not apply to extend the disclosure period applicable to a conviction when the only sentence imposed for the other conviction is an ancillary order.

As mentioned above, an ancillary order is one mentioned in section 5(2D) of the 1974 Act. This exception to the rule is set out in section 6(5).

Where, in addition to the ancillary order another sentence is imposed for a conviction, in determining whether the disclosure period applicable to another conviction is extended by the rule in section 6(4), the disclosure period applicable to the ancillary order is to be disregarded. This exception to the rule is set out in section 6(5A) and (5B).

Example

Section 6(5): A person aged 25 is convicted of an offence (conviction 1) and is given a 5 year non-harassment order (but no other sentence). This will have a disclosure period of 5 years. One year later the person is convicted again (conviction 2) and is given a fine. The disclosure period applicable to conviction 2 is 12 months. This is not extended to match the five-year disclosure period applicable to conviction 1.

This is because (as mentioned above) the disclosure period is not extended because the sentence imposed for conviction 1 was only an ancillary order.

Example

Section 6(5A) and (5B): In a variation to the circumstances in the example immediately above, in addition to the non-harassment order given for conviction 1 the person also received a custodial sentence of 12 months.

The disclosure period applicable to the non-harassment order is five years and the disclosure period applicable to the custodial sentence is three years.

This means the disclosure period applicable to conviction 1 is five years.

However, section 6(4) applies (if the second conviction occurred in solemn proceedings) and the disclosure period for conviction 2 is extended, because of the custodial sentence given.

By virtue of section 6(5A) and (5B), the disclosure period applicable to conviction 2 is only extended until the disclosure period applicable to the custodial sentence imposed for conviction 1 has expired. The disclosure period for the non-harassment order is ignored in determining the length of the extension.

Applying this rule, the disclosure period applicable to conviction 2 will last two years instead of one year. This is because the disclosure period for the custodial sentence for conviction 1 is three years but one year has already elapsed between convictions 1 and 2, leaving 2 years remaining.

The disclosure period applicable to conviction 1 will remain five years owing to the non-harassment order.

Section 6(6) rule: Summary proceedings, service proceedings and convictions outside a Scottish court

The rule under section 6(4) of the 1974 Act does not apply if the subsequent conviction was one heard before a criminal court in summary proceedings. In such cases, each conviction becomes spent in accordance with the disclosure period for that conviction only and neither extends the other.

Example

A person aged 25 is fined for a summary offence (conviction 1). The disclosure period is 12 months. Six months later the person is fined again for a further summary offence (conviction 2). In such a case, the disclosure period for the conviction 1 will be 12 months from the date of that conviction and the disclosure period for conviction 2 will be 12 months from the date of that conviction. Therefore, disclosure of the conviction 1 will end 6 months before disclosure for conviction 2.

The rule under section 6(4) also does not apply to service disciplinary proceedings for an offence listed in schedule 1 of the 1974 Act or to any conviction by or before a court outside Scotland of an offence in respect of conduct which, if it had taken place in Scotland, would not have constituted an offence under the law in force in Scotland.

21. What happens if I get another conviction for which an "excluded sentence" is imposed before my first conviction becomes spent?

Excluded sentences have no effect on the disclosure periods for previous or subsequent conviction. This means the disclosure period for the first conviction will not change.

Example

An individual over 18 is convicted of an offence and fined £500 (conviction 1). The disclosure period for this sentence is 12 months from the date of conviction. Six months later the person is convicted of supplying class A drugs and given a 5 year custodial sentence (conviction 2) in solemn proceedings. This is an excluded sentence under section 5(1) of the 1974 Act.

The disclosure period applicable to conviction 1 remains 12 months and will not be affected by conviction 2.

22. What happens if I was given an excluded sentence and was convicted again?

As stated above, excluded sentences have no effect on the disclosure periods for previous or subsequent sentences. This means the disclosure period for the subsequent conviction will be determined by the actual sentence given for that conviction.

Example

A person is convicted of an offence and sentenced to five years imprisonment. This is an excluded sentence. Six months after being released from prison they are convicted of a second offence and fined £500. The disclosure period applicable to the second offence is 12 months and is unaffected by the first conviction.

23. What happens if I get an AtP before my first conviction becomes spent?

The rule in section 6(4) of the 1974 Act only applies to convictions meaning that an AtP given when a prior conviction is unspent will have no effect on when that prior conviction becomes spent.

24. What happens if I get a conviction before my first AtP becomes spent?

The rule in section 6(4) of the 1974 Act only applies to convictions meaning that a conviction obtained when a prior AtP is unspent will have no effect on when that prior AtP becomes spent.

25. What happens if I get another AtP before my first AtP becomes spent?

There will be no impact on the disclosure period for the first AtP. That is both disclosure periods will be in accordance with the actual AtP given.

26. What happens if I was given a life sentence or an equivalent to a life sentence?

The conviction is not capable of being spent and self-disclosure will always be necessary.

27. What happens if a person is convicted of a further offence during the period of adjournment or deferral for a previous offence?

Where a person is convicted of an offence (the "first conviction") and the court adjourns the case or defers sentence and they are convicted of a second offence ("the second conviction") during that period of adjournment or deferral, the rule in section 6(4) may act to extend the disclosure period applicable to the first conviction.

However, if in relation to the first conviction a "relevant sentence" is imposed^[12] and that sentence is one where there is no disclosure period (e.g. an admonishment) then the rule in section 6(4) does not apply. This means that the second conviction does not extend the disclosure period for the first conviction. This is by virtue of section 6(4A) to (4C).

Other rules may apply depending on what the decision of the court is and in what type of court the offences were prosecuted in.

If the court decides to treat the previous and subsequent offences together then the rule in section 6(2) may apply.

If the offences are prosecuted in solemn proceedings and if the "relevant sentence" is one where a disclosure period applies (e.g. fine or community payback order) then the rule 6(4) may apply.

However, until the "relevant sentence" is given for the previous offence the adjournment and deferral will continue to be disclosed.

If both offences are prosecuted separately in summary proceedings the disclosure period for both convictions will be based on the sentences given.

28. What happens if I breach a Community Payback Order (CPO), Drug Testing and Treatment Order (DTTO) or a Restriction of Liberty Order (RLO)?

The applicable rule is set out in section 6(3ZA) and (3ZB) of the 1974 Act.

This applies if a person is given a Conditional Discharge^[13], CPO, RLO or a DTTO for an offence ("offence A") and the person breaches the order and, as a result of this breach, the person is given a further sentence for offence A after the disclosure period for the initial order has ended.

In such a case, the person is not to be treated as a protected person, and the conviction is not spent, until the disclosure period for that second sentence has expired.

To use the example of a CPO, in some circumstances where there has been a breach of the order, the court may revoke the order and deal with the person in respect of offence A as if the order had not been imposed.

In this case, the disclosure period for the conviction resulting in the CPO would end at the point of revocation. However, the effect of this rule is that the person will not be treated as a "protected person" in respect of the conviction until the expiry of the disclosure period applicable to how the person is dealt with by the court as a result of breaching the CPO and the conviction will not be treated as spent until that period has expired.

Example

A person is a given a CPO with a supervision requirement of 2 years. The disclosure period for this sentence is 2 years (i.e. 12 months or the length of the order, whichever is longer). After 18 months the person breaches their CPO and is dealt with by the court. As a result, the court revokes the CPO and instead gives the individual concerned a 14 month custodial sentence.

This revised sentence has a disclosure period of 5 years and 2 months from the date of the original conviction (i.e. length of sentence plus 4 years). Therefore, as a result of the breach of the CPO and the fact the court imposed a custodial sentence of 14 months, the disclosure period for the conviction is extended by 3 years and 2 months, with the clock starting from the date of conviction.

29. What happens if I have been convicted on an offence and also put on the Sex Offenders Register?

The 1974 Act is concerned with the disclosure of convictions and AtPs. It is not the way in which the risks posed by sex-offenders are managed in the community.

If a person commits a sexual offence they may be subject to notification requirements under Part 2 of the Sexual Offences Act 2003.

However, notification requirements do not affect when a conviction becomes spent. A person may be subject to notification requirements in connection with a conviction despite that conviction being spent.

Further details on the management of sex offenders can be found on the attached links to Police Scotland's website.

1. Registered sex offender management

2. Multi Agency Public Protection Arrangements (MAPPA)

3. Community 'Outing' of RSOs

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.