Protection of vulnerable groups and disclosure of criminal information: consultation

Section 1 - Introduction

What is Disclosure Scotland?

Disclosure Scotland is an Executive Agency of the Scottish Government. It exercises the functions of the Scottish Ministers under the Police Act 1997 (“the 1997 Act”) and the Protection of Vulnerable Groups (Scotland) Act 2007 (“the 2007 Act”) to issue both basic and higher level disclosures ^[1] in Scotland.

What are the statutory powers and functions of Disclosure Scotland?

The Rehabilitation of Offenders Act 1974 (“the 1974 Act”) as it applies in Scotland provides for a system of protection to individuals with previous convictions not to have to disclose their convictions in certain circumstances. Without the 1974 Act, the common law position would require people to answer, truthfully, any questions about their offending history.

Under the existing terms ^[2] of the 1974 Act, subject to certain exclusions and exceptions provided for in secondary legislation made under the 1974 Act, anyone who has been convicted of a criminal offence and sentenced to custody for a period of 30 months or less can be regarded as rehabilitated after a specified period has expired, provided he or she receives no further convictions. After that period has expired, the conviction is treated as 'spent'. A person can also become rehabilitated after receiving an alternative to prosecution (AtP), such as a fiscal warning or a fiscal fine. After the specified rehabilitation period has passed, the original conviction is considered to be spent.

The rehabilitation period (that is, the period until a conviction is spent) depends on the disposal imposed in respect of the conviction. The general rule is that, once a conviction is spent, that individual does not have to reveal it and cannot be prejudiced by it. This means that if a person's convictions are all spent and they are asked, for example, on a job application form, at a job interview or on a home insurance form whether they have a criminal record, they do not have to reveal or admit its existence. Moreover, even if such information is disclosed, this information could not be relied on. So, for example an employer cannot refuse to employ someone or dismiss someone because of a spent conviction and an insurance company cannot increase premiums on the basis of a spent conviction.

The central policy behind the 1974 Act is that people should be able to move on from their previous offending behaviour after sufficient time has elapsed and where their behaviour was not of a severity that it must be disclosed forever. Such an approach should allow those individuals to reintegrate into their community and obtain suitable employment. All disclosures made by Disclosure Scotland are impacted by the rules in the 1974 Act.

It is recognised, however, that the protection provided by the 1974 Act could not and should not apply in all circumstances. To deal with this, Scottish Ministers have a power to make certain exclusions and exceptions to that general protection. The effect of the Rehabilitation of Offenders Act 1974 (Exclusion and Exceptions) (Scotland) Order 2013 (“the 2013 Order”) is that in certain cases, depending on the type of job or employment in question, a person cannot deny the existence of certain spent convictions. It is in these cases that 'higher level disclosures' are available.

The disclosure system backs up this duty on the individual to be honest about their convictions in line with the law; it verifies that the person, having taken account of the 1974 Act, has told the truth when disclosing previous convictions.

Where the protection provided by the 1974 Act does not apply because the type of job or employment is included in the 2013 Order and a person is asked about previous convictions, they should treat the question as follows:

• if a person has an unspent conviction for any offence, the person must treat the question as referring to that conviction and must self disclose it;
• if a person has a spent conviction for an offence not listed in schedule 8A or 8B ^[3] of the 1997 Act, the person can treat the question as not referring to that conviction which is protected by law and the person does not need to self-disclose it; the person cannot be prejudiced in law for the non-disclosure;
• if a person has a spent conviction for an offence listed in schedule 8B of the 1997 Act and it is a protected conviction, the person can treat the question as not referring to that conviction and the person does not need to self-disclose it; the person cannot be prejudiced in law for the non-disclosure;
• if a person has a spent conviction for an offence listed in schedule 8B of the 1997 Act and it is a not a protected conviction, the person does not have to treat the question as referring to that conviction until it is disclosed by Disclosure Scotland to a third party such as a prospective employer;
• if a person has a spent conviction for an offence listed in schedule 8A of the 1997 Act, and 7 years and six months have elapsed from the date of conviction if under 18 on the date of conviction, or 15 years have elapsed from the date of conviction if aged 18 or over on the date of conviction, the person does not have to treat the question as referring to that conviction until it is disclosed by Disclosure Scotland to a third party such as a prospective employer;
• if a person has a spent conviction for an offence listed in schedule 8A of the 1997 Act, and 7 years and six months have not elapsed from the date of conviction if under 18 on the date of conviction, or 15 years have not elapsed from the date of conviction if aged 18 or over on the date of conviction, the person must treat the question as referring to that conviction and it must be self disclosed.

As detailed below, some types of disclosure allow for certain spent convictions to be included. These are commonly called 'higher level disclosures'. However, even in a higher level disclosure there are filters to make sure only relevant spent convictions are included. The vast majority of spent convictions are relatively minor and will not be disclosed on higher level disclosures; but some are more serious and will be disclosed for a period of 15 years (or 7 years and six months) after conviction, even when otherwise spent, and some are so serious that they must always disclosed. The Scottish Government publishes lists of the types of convictions that are to be disclosed for 15 years (or 7 years and six months) and those that are disclosed forever unless a sheriff directs otherwise.

Disclosures made under the 1997 Act are:

• Basic
• Standard (a higher level disclosure)
• Enhanced (a higher level disclosure)

The first one of these, Basic Disclosure, is available to anyone for any purpose. It contains only unspent convictions; it does not list convictions that the 1974 Act says are spent and that the person does not need to disclose any more.

It tends to be used for general employment purposes, but not for jobs with access to high value assets or for work with vulnerable groups.

The Standard Disclosure is used for certain roles where the applicant has access to valuable resources, for example financial services roles. It can also be used where there is an expectation of integrity, for example in the security industry. It is also used when someone is applying to become a member of various professions, such as solicitor or accountant.

A Standard Disclosure can list unspent convictions, unspent cautions (from England, Wales and Northern Ireland), certain spent convictions, and whether the individual is subject to the notification requirements in Part 2 of the Sexual Offences Act 2003. The employer or organisation asking for a Standard Disclosure about someone must be registered with Disclosure Scotland to be able to countersign the application and the job or role must qualify for the lawful disclosure of otherwise spent convictions.

An Enhanced Disclosure is typically used where there is a high degree of sensitivity in the role the person is being considered for, for example, for prospective adoptive parents, employment in the Crown Office or obtaining a gambling licence. The Enhanced Disclosure lists unspent convictions, unspent cautions (from England, Wales and Northern Ireland), certain spent convictions, will say whether the individual is subject to the notification requirements in Part 2 of the Sexual Offences Act 2003, and has the possibility that the police will include text on the disclosure detailing non-conviction information. An example of this might be if the police credibly suspected the individual had committed serious offences relevant to the post they were applying for but had not been convicted of these. If the police provide this information Disclosure Scotland must include it; it has no discretion to remove or alter any text provided by the police.

Disclosures made under the 2007 Act are:

• Statement of scheme membership (contains no vetting information);
• PVG scheme record disclosure (a higher level disclosure);
• PVG short scheme record (contains no vetting information).

The 2007 Act set up the PVG Scheme with effect from 28 February 2011.

The basic purpose of the PVG Scheme was to provide for a system of disclosures for individuals doing 'regulated work' with children or with protected adults (as defined in the 2007 Act). Previously such individuals would have been entitled to Enhanced Disclosures under the 1997 Act. So, in effect, the 2007 Act set up a separate system of disclosures for persons doing regulated work with children or protected adults and removed them from the scope of the 1997 Act provisions.

When an individual applies to join the PVG Scheme, Disclosure Scotland check the police criminal history systems and also check if the person is barred from working with children or protected adults anywhere in the UK. A barred person cannot join the PVG Scheme to do regulated work with the vulnerable group they are barred with; children, protected adults or both groups.

The information contained on a PVG scheme record is called 'vetting information' but it is the same information as contained in an Enhanced Disclosure. The major difference between 1997 Act disclosures and the PVG Scheme is that after someone first applies for PVG scheme membership, Disclosure Scotland will continuously update and monitor their scheme record for as long as they remain a member. If new vetting information is added to the scheme record, for example convictions or police information, Disclosure Scotland will learn about this and can consider whether the new information means that it may be appropriate to bar the person from working with children, protected adults or both groups depending on which group they are a scheme member for.

As with 1997 Act disclosures, PVG disclosures are made only when strict rules are met:

• the scheme member must apply for a disclosure and authorise Disclosure Scotland to provide the information in relation to one or both types of regulated work to a registered person who qualifies to see the information, usually a regulated work provider;
• the scheme member requesting the disclosure is a member of the PVG Scheme for that type of regulated work (i.e. with children or protected adults, or both);
• the person to whom the disclosure is to be made declares that the disclosure is requested for the purpose of enabling or assisting the person to consider the scheme member's suitability to do that type of regulated work;
• the person to whom the disclosure is made (the employer for instance) is a registered person under the 1997 Act.

When it checks the person's criminal record, Disclosure Scotland might find information about past convictions or cautions, or the police may have provided information. In these circumstances Disclosure Scotland will decide if the information means that it may be appropriate to add the individual to the list of people barred from regulated work with children, protected adults or both groups. This part of the process is called the 'consideration for listing process'.

What is consideration for listing under the PVG Scheme?

If Disclosure Scotland, following rules set out in the 2007 Act and associated regulations, decides that it is appropriate to consider an individual for listing (barring) they will place the individual in the formal status of being under 'Consideration for Listing'. Any PVG scheme record disclosure made within six months of this decision for the type of regulated work concerned will state that the individual is under consideration for listing. Disclosure Scotland can go to the court and ask for the period of six months to be extended so that the information that a person is under consideration for listing can remain on the disclosure for longer, if they think that is necessary. Even if the ability to disclose the fact that the individual is under consideration for listing expires without such an extension, the individual remains under consideration and Disclosure Scotland retains all its powers to gather information pertinent to the consideration.

Disclosure Scotland can use powers under Part 1 of the 2007 Act to gather information about the individual concerned and decide whether the individual is unsuitable for the type of regulated work for which they are being considered. The individual is entitled to see all the information that Disclosure Scotland relies on to make its decision and they are facilitated to make representations about why they ought not to be barred. If Disclosure Scotland decides to bar the individual, then they are also barred across the whole of the UK and would commit a serious criminal offence if they sought to do regulated work with the groups from which they are barred, or if they actually did such work.

It is also a serious offence for an employer to employ a barred person to do regulated work. The only way that an employer can be sure that someone is not barred is to do a PVG check; this incentivises the use of the PVG Scheme but it does not mean that the Scheme is mandatory.

Why are we proposing changes to the current system?

Since 2011, Disclosure Scotland has received numerous applications for PVG disclosures and there are 1,141,167 scheme members. There are 5,295 individuals barred from doing regulated work. The number of barred individuals includes those convicted in courts for offences that automatically lead to barring, such as a rape (of any person, adult or child) or the murder of a child.

The 2007 Act was the Scottish Government's response to Sir Michael Bichard's Inquiry Report of June 2004 into the murders at Soham. The policy principles enshrined in the then PVG Bill were that:

• there should be two barred lists (a children's list and an adults' list);
• it should be an offence for a person to do regulated work of the type from which they are barred;
• there should be two regulated workforces - one for doing regulated work with children and the other for doing regulated work with adults;
• the Scheme was intended for those who are doing or intend to do regulated work with children, adults or both groups;
• scheme membership should be for life unless the scheme member left the Scheme or was barred from doing regulated work;
• scheme members should be subject to ongoing monitoring (to ensure that new information that arises is checked to ensure the individual has not become unsuitable); and
• it should not be an offence for a person to do regulated work even if they are not a scheme member as long as they are not barred from doing that work (in other words, it is not mandatory for a person doing regulated work to be a member of the Scheme).

It is has been just over seven years since the PVG Scheme commenced. During this time, Disclosure Scotland has communicated with stakeholders and customers and has identified a number of areas where the PVG Scheme can operate more effectively or where modernisation measures are appropriate. The time is right to review the legislation and determine whether it still fits with today's landscape and also whether developments in digital technology can deliver an even more assured and customer-focused PVG Scheme that better serves employers, volunteering organisations and individuals alike.

Pre-consultation engagement

Disclosure Scotland carried out three rounds of engagement before publishing this formal consultation. To ensure a high level of stakeholder engagement, it used a number of channels and methods throughout the pre-consultation process, including:

• Individual interviews
• Group participation sessions
• Telephone interviews
• Online survey
• Stakeholder conference

We collated the results and feedback, analysing it after each round of engagement so that we asked progressively more specific questions.

A wide range of participants have taken part in the pre-consultation engagement. We engaged in person with over 350 organisational representatives and individuals throughout Scotland and have feedback from many more through our online survey. Examples of organisations that have taken part include:

• Local Authorities
• NHS Boards
• Sport Governing Bodies
• Educational Institutes
• Church Groups
• Third sector organisations

Our online survey generated 848 responses from a wide range of participants. It comprised 20 questions which covered the same themes as those in the face to face engagement events.

The evidence gathered during this intense period of engagement has assisted us in the development of our proposals going forward.

What do we need you to tell us?

The consultation seeks your views on potential changes to legislation relating to:

• Disclosure Scotland products
• Application for the removal of conviction information
• The length of time spent convictions will be disclosed
• Barring and listing functions
• Fee structure
• The duration of PVG scheme membership
• Mandatory nature of the PVG Scheme
• The disclosure of convictions of under 18s
• Changes to Other Relevant Information
• The scope of regulated work