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

(4) Where the protections given to spent convictions/AtPs do not or may not apply

30. Do I have to self-disclose my spent conviction when the protections of the 1974 Act are dis‑applied?

Yes, where the protections of the 1974 Act are dis‑applied, both unspent and some or all spent convictions have to be self‑disclosed. Whether some or all spent convictions have to be self‑disclosed is determined by the circumstances under which a question about your previous convictions is being asked.

The 1974 Act provides an order making power to exclude or modify the application of the protections conferred by the 1974 Act. This essentially means that the protections of the 1974 Act are dis-applied, or switched off. This power has been exercised to specify the types of employment and proceedings that are excluded from the 1974 Act and therefore where the self-disclosure of spent convictions is required. The current order in force is the 2013 Order.

The 2013 Order applies to circumstances where state disclosure from Disclosure Scotland is not, or cannot be used and also to circumstances where state disclosure from Disclosure Scotland may be used.

The system of self‑disclosure under the 2013 Order was updated in 2015, 2016, 2018 and most recently in 2020. These changes mean that for the majority of circumstances set out under the 2013 Order there is less self-disclosure of spent convictions. This is because as a result of these changes not all spent convictions are now required to be automatically self-disclosed (i.e. when they become a protected conviction).

Determining when the rules of self‑disclosure apply can be complex. It will depend on the particular offence and on the circumstances of the question being asked of you. In some cases all unspent and spent convictions require to be disclosed. In other cases certain spent convictions do not have to be disclosed.

Please be aware that the following is not a comprehensive account of the rules around self‑disclosure, rather it provides a general overview of the operation of the 2013 Order.

The decision about whether or not a spent conviction should be self-disclosed is now determined, in part, by whether the offence for which the person was convicted is a listed offence and if so, what list the offence is attached to. That is, whether it is a schedule A1 offence, a schedule B1 offence, or an offence not on either schedule.

There are certain circumstances where all spent convictions are required to be self-disclosed if you are asked about them, or taken into account. Examples of these are:

• proceedings before the Gambling Commission,
• proceedings under the MH 2003 Act before the MHTS or the Mental Health Welfare Commission for Scotland,
• proceedings under the Firearms Act 1968,
• proceedings under Part 1 of the Air Weapons and Licensing (Scotland) Act 2015 in respect of certain matters relating to certificates and permits in connection with air weapons,
• proceedings in relation to the suitability of a person to be the proprietor of an independent school,
• certain proceedings under the Explosives Regulations 2014,
• proceedings relating to licences under section 4A of the Poisons Act 1972,
• disciplinary proceedings against a constable,
• proceedings before the parole board.

A person may also be asked about any or all spent convictions, and that information can be taken into account in the following occupations:

• Firearms dealer.
• Constables, persons appointed as police cadets to undergo training with a view to becoming constables, police custody and security officers and naval, military and air force police.
• Any occupation in respect of which the holder is required pursuant to regulations 4, 5 and 11 of the Explosives Regulation 2014 to obtain from the chief officer of police an explosives certificate certifying that person to be a fit person to acquire or acquire and keep explosives.

Information on the circumstances where a higher level disclosure from Disclosure Scotland can be requested and the content of higher level disclosures can be found by clicking on the link below.

https://www.mygov.scot/convictions-higher-disclosures/

31. Do I have to self-disclose my spent AtPs when the protections of the 1974 Act are dis‑applied?

Only certain spent AtPs are required to be disclosed and only in very specific circumstances.

Disclosure of spent AtPs is required when the individual concerned is being vetted for the role of constable, appointment as a police cadet to undergo training with a view to becoming a constable, or for the role of police custody and security officer.

Spent AtPs also require to be disclosed when seeking employment in the naval, military and air force police.

In each of the above circumstances it is only disclosure of spent AtPs given when the person was 18 or over that require to be disclosed. Any spent AtP given to a person when they were under 18 does not have to be disclosed.

These changes were made under the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2020.

The 2020 amendment Order

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

32. Are there any other situations where a spent conviction can be disclosed or taken into consideration?

Section 7(1) of the 1974 Act provides that the general protections given to spent convictions in section 4(1) of the Act does not affect:

a) any right of Her Majesty, by virtue of Her Royal prerogative or otherwise, to grant a free pardon, to quash any conviction or sentence, or to commute any sentence,

b) the enforcement by any process or proceedings of any fine or other sum adjudged to be paid by or imposed on a spent conviction,

c) the issue of any process for the purpose of proceedings in respect of any breach of a condition or requirement applicable to a sentence imposed in respect of a spent conviction, or

d) the operation of any enactment by virtue of which, in consequence of any conviction, a person is subject, otherwise than by way of sentence, to any disqualification, disability, prohibition, requirement, restriction or other way of regulating the person's behaviour the period of which extends beyond the rehabilitation period applicable in accordance with rules under section 6 of the 1974 Act to the conviction.

Section 7(2) of the 1974 Act also provides that nothing in section 4(1) of the Act will affect the determination of any issue, or prevent the admission of evidence or requirement of any evidence, relating to a person's previous convictions or circumstances ancillary thereto in the following types of proceedings:

a) in any criminal proceedings before a court in Scotland (including any appeal or reference in a criminal matter);

b) in any service disciplinary proceedings or in any proceedings on appeal from any service disciplinary proceedings;

c) in any proceedings on an application for an order under section 2, 2A or 20 of the Crime and Disorder Act 1998 or in any appeal against the making of such an order;

d) in any proceedings on an application under section 2, 4 or 5 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9) or in any appeal under section 6 of that Act;

e) in any proceedings relating to parental responsibilities or parental rights (within the meaning of section 1(3) and section 2(4) respectively of the Children (Scotland) Act 1995), guardianship, adoption or the provision by any person of accommodation, care or schooling for children under the age of 18 years;

f) in any proceedings under Part II of the Children (Scotland) Act 1995;

g) in any proceedings relating to the variation or discharge of a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008, or on appeal from any such proceedings;

h) in any proceedings in which he is a party or a witness, provided that, on the occasion when the issue or the admission or requirement of the evidence falls to be determined, he consents to the determination of the issue or, as the case may be, the admission or requirement of the evidence notwithstanding the provisions of section 4(1).

i) in any proceedings brought under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc).

Examples

• An individual is convicted of housebreaking. As part of the sentencing process, it will be necessary for the court to know about any previous spent convictions. For example, it may show it is the individual's first offence or it may show they have 20 previous convictions. The court will be appropriately informed in making their sentencing decision by having access to this information.
• A soldier is in front of a court martial for a serious offence. It is appropriate for the court martial to know whether they have any previous convictions for sentencing purposes.
• A determination is being made on whether an individual should get a Risk of Sexual Harm Order. It would be appropriate to know about any previous sexual offences that may have become spent in order to make the most appropriate decision.
• A member of a child's family wishes to get a guardianship order. It will be appropriate to have details of whether this individual has any previous convictions that may have relevance for the decision on guardianship.
• A child is referred to a children's hearing on offence grounds. It will be appropriate to know about any previous offending behaviour.
• An individual is a witness in criminal proceedings and it may be appropriate for details of their criminal past to be disclosed.

Section 7 of the 1974 Act also gives a judicial authority the power to admit evidence of a spent conviction in proceedings before it even although such proceedings are not set out in section 7(2) of the Act or in the 2013 Order.

However, this can only happen when the judicial authority is satisfied that justice cannot be done in the case except by allowing or requiring such a disclosure.

In addition, section 7 also provides that only court orders relating to a person's convictions can be included in any list or statement about a person's previous convictions which is given to any court when considering how to deal with that individual in respect of any offence.

33. Are there any other situations where a spent AtP can be disclosed or taken into consideration?

For AtPs paragraph 7 of schedule 3 of the 1974 Act applies instead of section 7(1).

Sections 7(2) and (3) of the 1974 Act also apply with some modifications as set out under paragraph 8 of schedule 3. For example spent AtPs cannot be considered in any service disciplinary proceedings or in any proceedings on appeal from any service disciplinary proceedings (whereas spent convictions may be).

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.