Protection of vulnerable groups and disclosure of criminal information: consultation

Section 5 - Offence Lists and Removal of spent convictions from a disclosure

Background

The legislation on higher level disclosures until 10 September 2015 required self-disclosure of all convictions however old and/or minor they were, that is, self disclosure covered all spent convictions. In addition, the legislation required Disclosure Scotland to include all convictions (spent or unspent) on the higher level disclosures issued.

In June 2014, the UK Supreme Court, in a judgment relating to the disclosure of cautions issued by the police in England and Wales for minor offences found that the system under the 1997 Act as it applied in England and Wales breached a person's article 8 rights under the European Convention on Human Rights ( ECHR). Although the court fully accepted the need for additional scrutiny of a person's background if they wanted to work with vulnerable groups or in other sensitive roles, it indicated that the automatic indiscriminate requirement for disclosure of all convictions was not proportionate as no assessment was undertaken of the relevance of the information disclosed to the purpose for which the disclosure was required.

As a result of that judgment in the balancing of competing rights and interests, the Scottish Government considered the higher level disclosure system as it operated in Scotland and concluded that reforms should be made to it.

A new reformed system restricted the requirement for disclosure so that not all spent convictions would be routinely disclosed. Convictions would be disclosed in line with rules set out in the legislation which was designed to ensure that only relevant convictions (including relevant spent convictions) would be disclosed on higher level disclosures.

Two lists of offences were created. One list, set out in schedule 8A of the 1997 Act (schedule A1 of the 2013 Order), contained convictions for offences considered so serious and/or relevant that they must always be disclosed. The second list, set out in schedule 8B of the 1997 Act (schedule B1 of the 2013 Order), contained convictions for offences that may be relevant with factors in relation to the length of time since conviction, age of offender at time of conviction and sentence received determining whether disclosure should take place.

In February 2017 the Court of Session ruled on a judicial review brought in relation to the disclosure of a previous conviction on the petitioner's PVG scheme record. The court found that, insofar as they required automatic disclosure of the petitioner's convictions before the Children's Hearing, the reforms made in 2015 still left in place a position that unlawfully and unjustifiably interfered with the petitioner's article 8 rights under the ECHR.

Amendments were made to further refine the system of higher level disclosures so as to bring a benefit to individuals who have a conviction for an offence listed in schedule 8A of the 1997 Act, (schedule A1 of the 2013 Order). The reforms provided the possibility of the disclosure recipient making an application to a sheriff for removal of spent conviction information from the disclosure provided certain criteria are met. The practice of automatically and indefinitely disclosing spent convictions by the state for offences on schedule 8A of the 1997 Act ended.

Schedule 8A and 8B offence lists

As explained above, two lists of offences have been developed - a list of 'Offences which must be disclosed unless a Sheriff orders otherwise' (schedule 8A) and a list of 'Offences which are to be disclosed subject to rules' (schedule 8B). Offences that do not appear on either list will not be disclosed after they become spent. In developing these lists of offences careful consideration was given to the attributes required for roles requiring higher level disclosure. Such roles place the individuals filling them in a position of power and responsibility. A conviction for a criminal offence that:

• resulted in serious harm to a person;
• represented a significant breach of trust and/or responsibility;
• demonstrated exploitative or coercive behaviour;
• demonstrated dishonesty against an individual;
• abused a position of trust; or,
• displayed a degree of recklessness that resulted in harm or a substantial risk of harm

is evidence that a person's conduct has caused harm to an individual and/or is evidence of misconduct in a position of authority. The protection of vulnerable groups and of sensitive assets must be balanced against any presumption that spent convictions ought not to be disclosed.

The offence lists have been developed using multiple sources of information. The starting point was the Scottish Government published Recorded Crime in Scotland Classification of Crimes and Offences. Thereafter we considered all CHS and PNC recorded offences that have appeared on higher level disclosures since 2007. We considered the Disclosure and Barring Service's ( DBS) list of offences that will never be filtered from a DBS certificate in England and Access Northern Ireland's filtering list.

Links to the lists of the offences in schedule 8A and schedule 8B of the 1997 Act can be found in Annex C; the Annex also shows new offences that have been created since the reforms in 2015 and the schedules we believe each these offences belong to.

The offences listed in schedule 8A and 8B of the 1997 Act are mirrored in schedules A1 and B1 respectively of the 2013 order, as amended. The provisions in the 1997 Act are aligned with the provisions in the 2013 Order to ensure that the policy of self disclosure and state disclosure remain aligned. The current rules about self disclosure are set out in section 1 above.

Question 62: Are there any offences missing from either list that you think should be included? If so what are they, on what list should they appear and why?

Question 63: Are there any offences on schedule 8A that you think should be on schedule 8B? If so, please list them and explain why.

Question 64: Are there any offences on schedule 8B that you think should be on schedule 8A? If so, please list them and explain why.

Question 65: Do you agree with the categorisation of the new offences?
Yes
No

Question 65a: If no, please state how they should be categorised.

Applications to a sheriff for removal of spent convictions from a higher level disclosure

Applications for removal of schedule 8A offences

If an individual is convicted of a schedule 8A offence, they can apply to the sheriff to have the conviction removed from their disclosure if the following rules are met -

• the conviction for a schedule 8A offence is spent, and -
  (a) where the person was aged under 18 at the date of conviction, 7 years and 6 months have passed since the date of the conviction; or
  (b) where the person was aged 18 or over at the date of conviction, 15 years have passed since the date of the conviction.

Applications for removal of schedule 8B offences

If an individual is convicted of a schedule 8B offence they can apply to the sheriff to have the conviction removed from their disclosure where -

• the conviction for the schedule 8B offence is spent

A conviction for an 8B offence will no longer be included in a disclosure certificate if the following rules are met -

• the conviction for a schedule 8B offence is spent, and -
  (a) where the person was aged under 18 at the date of conviction, 7 years and 6 months have passed since the date of the conviction;
  (b) where the person was aged 18 or over at the date of conviction, 15 years have passed since the date of the conviction; or
  (c) the sentence imposed in respect of the conviction was an admonition, an absolute discharge or a discharge from a children's hearing where the referral was on offence grounds.

What will the sheriff decide

When making a decision on an application for the removal of schedule 8A and/or schedule 8B convictions from a disclosure, a sheriff will consider whether or not the spent conviction is relevant to the type of regulated work for which a PVG scheme record has been requested, or to the purpose for which the standard or enhanced disclosure was requested. If the sheriff decides that the conviction is not relevant to the type of regulated work or the purpose of the disclosure, the conviction would be removed before the disclosure is issued to a third party such as an employer.

How were the disclosure periods in relation to schedule 8A and 8B offences derived?

The 15 year (or 7.5 year depending on the individual's age at date of conviction) time periods were derived from the context of the current rehabilitation periods set out in the Rehabilitation of Offenders Act 1974 and the timescales for retention of criminal conviction information on the police Criminal History System.

The longest rehabilitation period (that is, the period during which a conviction is not yet spent) for someone who was aged over 18 at the date of conviction is currently 10 years under the Rehabilitation of Offenders Act 1974. This would be the rehabilitation period which would result from a custodial sentence of greater than six months but no more than 30 months.

The Management of Offenders (Scotland) Bill) ^[7] has recently been introduced into the Scottish Parliament and, if passed, will make changes to the current rehabilitation periods. As the current disclosure regime is derived from the current rehabilitation periods it makes sense to review the current disclosure periods.

The Management of Offenders (Scotland) Bill proposes the following changes to the rehabilitation periods in respect of custodial sentences and when they would become spent for individuals convicted over the age of 18 and those convicted when under the age of 18.

Custodial sentences	Rehabilitation period Aged 18 or over when convicted	Rehabilitation period Aged under 18 when convicted
Not more than 12 months	Sentence plus 2 years	Sentence plus 1 year
More than 12 months but less than 30 months	Sentence plus 4 years	Sentence plus 2 years
More than 30 months but not more than 48 months	Sentence plus 6 years	Sentence plus 3 years

If the Bill is passed, the longest period of disclosure for someone over 18 receiving a custodial sentence would continue to be ten years, (that is, for a 4 year sentence, the disclosure period is length of sentence, (4 years), plus 6 years which equals 10 years). However, as can be seen from the above table, the overall policy intention set out in Management of Offenders (Scotland) Bill is to reduce the period of disclosure for custodial sentences up to and including 48 months. For example, currently if someone is convicted of an offence and is given a 12 months' custodial sentence the conviction will become spent 10 years from the date of conviction. Under the proposals in the Management of Offenders (Scotland) Bill a 12 month custodial sentence will become spent 3 years from the date of conviction, (that is, length of sentence (12 months) plus 2 years which equals 3 years).

For such an example, this could result in an individual having their spent conviction disclosed for an additional 12 years on a higher level disclosure for an offence on schedule 8B before it will no longer be disclosed. Or wait a further 12 years before they can make an application to a sheriff to have the conviction for a schedule 8A offence removed.

We believe that there are two possible options going forward. Those are:

• maintaining the status quo for the disclosure periods; or
• reducing the disclosure periods to less than 15 years (for over 18s) and less than 7.5 years (for under 18s).

We do not believe that an approach that would increase the periods would be appropriate. This would be disproportionate when balancing safeguarding and an individual's right to a private life.

Reducing the disclosure periods for spent convictions

In relation to spent convictions for offences listed in schedule 8B, we propose that the current disclosure periods should reduce to no less than 11 years for those aged 18 or over at the date of conviction, and to no less than 5.5 years for those under 18 at the date of conviction. For those aged 18 or over on the date of conviction, this would ensure the continued disclosure of a conviction for any offences on schedule 8B for at least a year once the conviction was spent (where the longest rehabilitation period of 10 years continues to apply). This means that convictions for schedule 8B offences would become protected 11 years from the date of conviction and would no longer be included in a disclosure certificate once the 11 years were complete. If the applicant was under the age of 18 on the date of conviction, at least 5.5 years must pass before the conviction is protected. There will, however, be some cases, where the individual is under the age of 18 at the date of conviction and receives a custodial sentence of more than 30 months, that a sentence becoming spent and becoming protected could occur at the same time. The current rules regarding applications to a sheriff for removal of convictions for schedule 8B offences would continue so that an applicant could, as now, apply for the removal of a conviction from a disclosure once the conviction is spent.

For offences on schedule 8A, as with the current rules, no offence will be automatically protected and removed from a disclosure certificate after any particular period of time. However a change in the length of the automatic disclosure period would allow an applicant the ability to apply for removal of the spent conviction after 11 years (instead of 15 years) if over 18 at the time of conviction or 5.5 years (instead of 7.5 years) if under 18 at the time of conviction.

Question 66: Do you believe the rules for disclosure in the current form of 15 years and 7.5 years provide appropriate safeguarding and privacy protections?
Yes
No

Question 67: Do you agree that a reduction in the disclosure periods from 15 & 7.5 years is appropriate considering the changing policy on rehabilitation of offenders?
Yes
No

Question 68: What period between 11 and 15 years do you think is appropriate for disclosure?
11
12
13
14
15

Removal of spent convictions from a disclosure

How effective is the current system?

To date we have had 346 applicants intimate to Disclosure Scotland their intention to apply to a sheriff for the removal of a conviction from their disclosure. 27 of these have then proceeded to make an application to a sheriff. In one case the sheriff has ordered convictions removed from the disclosure. In three cases the sheriff has ordered that convictions should not be removed from their disclosure as they were still relevant. Out of the 27 cases, 23 have yet to be decided by the sheriff. In 24 cases, the person did not actually proceed to make an application to the sheriff and therefore the disclosure application ended without any disclosure being issued to the person who had countersigned it.

The average time from an applicant's notification of intention to Disclosure Scotland to apply to a sheriff for removal of a conviction to the completion of their case by the sheriff has taken 6 months, but some of the pending cases have taken considerably longer than that.

To understand fully the implications and/or issues with the current application mechanism, Disclosure Scotland emailed 346 applicants who had intimated an intention to apply to a sheriff and asked the following questions:-

1. Did you pursue your application to a sheriff? If so, how did you find the process?

2. If you did not pursue your application to a sheriff, why?

3. Did you find the insert explaining your right to make an application to a sheriff, as well as any other information provided by Disclosure Scotland, helpful?

4. Have you made a new PVG application since?

5. Are you still in regulated work? If not, would you like to be removed from the scheme?

In total, 51 applicants responded. Four respondents currently have live applications pending with the sheriff court seeking to have their schedule 8B offence removed. 38 respondents did not pursue an application to a sheriff, 9 respondents noted an interest in making an application to a sheriff but needed more guidance on how to do this, 2 respondents pursued applications which are now concluded.

As mentioned above, 38 of those initially intimating an application to a sheriff did not proceed any further with their application to have convictions removed. There were a number of reasons given for this, the main ones being:

• Cost - for many the costs associated with making an application, legal representation and court fees, were prohibitive. One commenter stated they felt the process to be unfairly weighted against those who cannot afford legal help.
• Length of time - a number of these respondents noted that to launch an application would result in a delay to the employment opportunity necessitating the higher level disclosure.
• Uncertainty about how to make an application - respondents explained that they found the current process to be complicated, unclear and confusing. Respondents further commented that the information provided by Disclosure Scotland on the application process is hard to understand or otherwise insufficient.

This suggests that the current system could deter individuals who have the right to make an application to a sheriff from doing so. The costs could also be a deterrent. Although a number of the respondents were already in work, it is possible that the delays involved could impact on an individual's ability to get work. This could also have a subsequent effect on organisations trying to recruit certain posts.

Options going forward

Maintain the status quo

No change to the current system and all applications for removal of convictions would continue to be made to a sheriff.

Introduce an administrative process stage prior to application to a sheriff

Protection Services within Disclosure Scotland already receives and considers referrals and other information and takes decisions, on behalf of Scottish Ministers, about whether individuals are unsuitable to work with children or protected adults. We believe that this skill-set equips them to make robust decisions on whether or not a spent conviction is relevant to the position applied for and consequently whether it should or should not be disclosed on a person's scheme record or on a standard or enhanced disclosure.

There is therefore an option of allowing people to make an application to Disclosure Scotland to have a conviction removed from their certificate. This would be a compulsory first step. An application to a sheriff could only be made if Disclosure Scotland decided that the conviction should not be removed.

In this scenario, the law would give Disclosure Scotland powers to enable them to gather the relevant information from the relevant bodies to allow them to make robust decisions about whether a conviction ought to be disclosed or not.

Applicants would be able to provide representations in support of their application to have the conviction removed from their disclosure.

Any application to Disclosure Scotland to consider whether a conviction should be removed from the disclosure would require to be made within 3 months (the same as the current time limit for an application to a sheriff) and would be available in the same circumstances as an application to the sheriff, but the time to have the matter considered and decided would be typically shorter.

If an applicant was dissatisfied with Disclosure Scotland's decision not to remove a conviction, they would retain the right to apply to a sheriff for the conviction to be removed. We propose that the sheriff should consider the facts again and make a new decision.

Advantages of an internal administrative process:

• Simpler for applicants to understand and progress;
• Cheaper for applicants as legal representations not required. An administration fee of £30 will be charged;
• Quicker decisions;
• There is a lack of developed case law for sheriffs to rely on under the current system ; however, Disclosure Scotland already has in place a decision-making process for removing unsuitable individuals from regulated work and the experience of that process could be applied to the context of applications for removal of convictions;
• The ability to make an application to the sheriff for a further decision about whether a conviction should be removed offers an additional level of scrutiny.

Disadvantages of an internal administrative process:

• Increase in possible vexatious or spurious claims;
• Cost to Disclosure Scotland - particularly staff costs and time;
• Some cases may take just as long as a sheriff due to complexity.

Introduce an Independent Reviewer

An independent reviewer is to be established under the Age of Criminal Responsibility (Scotland) Bill (“the ACR Bill”). It would be possible to extend the functions of the independent reviewer to include a review of whether convictions listed in schedules 8A and 8B should be included in a disclosure. The only ground for an application to a sheriff to review the independent reviewer's decision would be on a point of law.

Advantages of an independent reviewer:

• Simpler for applicants to understand and progress and a less formal process;
• Cheaper for applicants as legal representations not required. A fee of £30 will be charged;
• Quicker decisions.

Disadvantages of an independent reviewer:

• Increase in possible vexatious or spurious claims;
• There will be additional costs to provide administrative support, and for office space and equipment;
• Some cases may take just as long as a Sheriff due to complexity.

Application to the Scottish Tribunals

The Tribunals (Scotland) Act 2014 (“the 2014 Act”) created a new, simplified statutory framework for tribunals in Scotland, bringing existing tribunal jurisdictions together and providing a structure for new jurisdictions. The 2014 Act created two new tribunals, the First-tier Tribunal for Scotland (First-tier Tribunal) and the Upper Tribunal for Scotland (Upper Tribunal), known collectively as the Scottish Tribunals.

In some cases, appeal functions were transferred to allow the first-tier tribunal to hear Scottish cases instead of using a sheriff. Examples of the issues that tribunals handle include the compulsory care and treatment of people with mental health disorders; disputes between tenants and landlords; disputes involving land and property; and cases concerning children and young people with additional support needs.

An application for removal of convictions could be made to the Scottish Tribunals instead of to a sheriff.

Advantages of a Tribunal:

• Like courts, tribunals find facts, apply the law and make independent, reasoned, binding decisions;
• Tribunals are considered to have the following advantages over a court:
  • cheaper (less formal, speedier proceedings);
  • more accessible (don't need legal representation; no fees);
  • freedom from technicality (simpler procedures);
  • take a more investigative approach (will help to draw out the key issues from unrepresented parties to get to the correct outcome);
  • specialist decision makers; tend to comprise a legally qualified chair and lay experts.

Disadvantages of a Tribunal:

• Can be costly and time consuming to establish (will require legislative change and a statutory basis; statutory rules of procedure; may require appointment of judiciary if an existing jurisdiction cannot deal with the matter; development of case management systems etc);
• Legal aid is generally not available at first instance which can deter people from submitting a claim;
• The lack of fees may result in ill-founded or speculative claims;
• Procedures and rules can be complex depending on the jurisdiction making the process challenging for unrepresented parties;
• Time consuming - cases not completed any quicker than a sheriff if it is a complex case.

Question 69: Do you think the application process to seek removal of a spent conviction should be reviewed?
Yes
No

Question 70: At present, an individual has three months from the date of notification of an intention to appeal to make an application to a Sheriff. Do you think this time period is:
Too long
Too short
Correct

Question 70a: If you indicated that the time period is too long or too short, what do you think the time period should be?

Question 71: Do you think any of the options set out above offer viable alternatives to an application to a Sheriff?
Yes
No

Question 71a: If yes, which one?

Question 71b: If not, do you have any other suggestions?