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A Discussion Paper on the Rehabilitation of Offenders Act 1974

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CHAPTER 4 - REHABILITATION PERIODS

4.1. Introduction

4.1.1. This chapter looks at the importance of the operation of rehabilitation periods within the 1974 Act. Chapters 5 and 6 go on to look at how the 1974 Act gives protections to spent convictions and where such protections do not or may not apply.

4.1.2. In particular, this chapter looks at rehabilitation periods where:

  • a single sentence has been received;
  • more than one sentence has been received;
  • a person breaches a conditional discharge or probation order;
  • a person is convicted of further offence before rehabilitation period ends for a previous sentence; and
  • a person is convicted of an offence that had originally resulted in an AtP.

4.1.3. In addition, this chapter includes some statistical data relating to criminal convictions and sentencing trends which may be helpful in considering the questions asked at the end of this chapter.

4.2. Where a single sentence has been received

4.2.1. The rehabilitation periods for particular sentences are set out under section 5[64] of the 1974 Act and replicated in tables A, B and C below. However, section 5 of the 1974 Act has not kept pace with changes in sentencing law and contemporary sentencing practice in Scotland. As such, section 5 of the 1974 Act does not explicitly make reference to all current disposals available in Scotland[65]. This can make it difficult for people receiving a disposal not currently mentioned in section 5 to work out what the rehabilitation period should be for that particular sentence.

4.2.2. It is important to note that the rehabilitation periods for a conviction run from date of conviction. However, the 'limitations of rehabilitation' for convictions, referred to in chapter 6 of this paper, may have an effect on the rehabilitation periods in any given case.

TABLE A - REHABILITATION PERIODS FOR MAIN SENTENCES AVAILABLE TO SCOTTISH COURTS

Sentence Rehabilitation period Rehabilitation period (under 18)
A sentence of imprisonment or youth custody or corrective training for a term exceeding six months but not exceeding thirty months. 10 yrs 5 yrs
A sentence of cashiering, discharge with ignominy or dismissal with disgrace from Her Majesty's service. 10 yrs 5 yrs
A sentence of imprisonment or youth custody for a term not exceeding six months 7 yrs 3½ yrs
A sentence of dismissal from Her Majesty's service. 7 yrs 3½ yrs
Any sentence of service detention within the meaning of the Armed Forces Act 2006, or any sentence of detention corresponding to such a sentence in respect of a conviction in service disciplinary proceedings. 5 yrs 2½ yrs
A fine or any other sentence subject to rehabilitation under the 1974 Act, not being a sentence to which table B below or section 5(3) to (8) applies. 5 yrs 2½ yrs

Offending committed by those under the age of 18

4.2.3. Where a person under the age of 18 is convicted in a criminal court, the protections given to spent convictions under the 1974 Act apply. For certain sentences, (as in Table A above), the rehabilitation period is reduced by half where the offender is under 18 at the time of conviction. In addition, table B below provides details of certain sentences which are only available to young offenders which have their own specified rehabilitation periods.

TABLE B - REHABILITATION PERIODS FOR CERTAIN SENTENCES CONFINED TO YOUNG OFFENDERS

Sentence Rehabilitation period
A sentence of borstal training[66] 7 yrs
A variety of armed forces offences committed by young individuals, including offences committed by civilians[67] 3 to 7 yrs

4.2.4. There are also rehabilitation periods associated with a number of other sentences used in Scottish courts.

TABLE C - REHABILITATION PERIODS FOR A NUMBER OF MISCELLANEOUS SENTENCES AVAILABLE TO SCOTTISH COURTS

Sentence Rehabilitation period Rehabilitation period (under 18)
Absolute Discharge[68] 6 months 6 months
Conditional discharge[69] 1 yr. or date of order (the longer of) 1 yr. or date of order (the longer of)
Community Order/Service Community Order[70] 5 yrs 2½ yrs
Referral Order[71] Length of order
An Order extending period for which a youth offender contract has effect[72]t Length of order
An Order under section 1(2A) of the Street Offences Act 1959[73] 6 months 6 months
A variety of Order imposed on those mainly under 18[74] 1 yr. from date of conviction or length of Order (the longer of)
An Order for custody in a remand home, approved school Order, Attendance centre Order, A secure Training Order[75] Length of Order plus 1 yr.
Detention & Training Orders[76] Length of Order plus 1 yr. or 5 yrs from date of conviction, depending on age of offender
Hospital Order[77] 5 yrs or length of Order plus 2 yrs (the longer of) 5 yrs or length of Order plus 2 yrs (the longer of)

Rehabilitation periods where a sentence includes an order disqualifying etc. a person from undertaking certain activity

4.2.5. Section 5(8) of the 1974 Act provides that where in respect of a conviction, an order is made imposing on the person convicted any disqualification, disability, prohibition or other penalty, the rehabilitation period applicable to the sentence is the period beginning with the date of conviction and ending on the date on which the disqualification, disability, prohibition or penalty (as the case may be) ceases or ceased to have effect.

Foreign convictions

4.2.6. For the purposes of section 5, a foreign conviction, (not including Northern Ireland), is treated as the equivalent to the Scottish sentence which most nearly corresponds to it[78].

Powers to vary rehabilitation periods

4.2.7. Section 5(11) of the 1974 Act gives the Scottish Ministers the power, via secondary legislation, to vary any of the rehabilitation periods mentioned in sections 5(1) to 5(8), and to vary the threshold age of offenders for which certain rehabilitation periods may be halved.

Children's hearings

4.2.8. As discussed at paragraphs 1.8 to 1.8.10 and 3.5.4 to 3.5.5, 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 currently treated as a conviction for the purposes of the 1974 Act. This is by virtue of section 3 of the 1974 Act read along with the Children's Hearings (Scotland) Act 2011 (Rehabilitation of Offenders) (Transitory Provisions) Order 2013, (the Transitory Provisions Order").

4.2.9. The Transitory Provisions Order also modifies the operation of section 5 of the 1974 Act to provide for specific rehabilitation periods in relation to these kinds of convictions. Where a child has been referred to a children's hearing on grounds that the child committed an offence and the ground has been accepted or established:

  • the discharge of the hearing will carry a 6 month rehabilitation period; and
  • a compulsory supervision order imposed on the child will carry a rehabilitation period of either one year or a period equal to the length of the order, whichever is the longer.

4.2.10. Once section 187 of the 2011 Act has been brought into force, these disposals by a Children's Hearing will be classed as AtPs and the rehabilitation periods applicable to those AtPs will be 3 months.

4.2.11. In addition, section 188 of the Children's Hearings (Scotland) Act 2011, once it has been brought into force, will amend section 113A of the 1997 Act to provide that children's hearings AtPs will only be disclosed automatically on standard and enhanced disclosure certificates and PVG scheme records where the offence in question has been specified by the Scottish Ministers in an Order. This will allow for the disclosure of children's hearings AtPs for more serious offences (as will be defined in the Order) while meaning that other less serious offences will not be disclosed automatically. As section 188 of the 2011 Act proceeds on the basis that these disposals by a Children's Hearing are classed as AtPs, that section must be brought into force at the same time as section 187.

Alternatives to prosecution

4.2.12. The rehabilitation periods for particular AtPs are set out in paragraph 1 of Schedule 3[79] to the 1974 Act. These rehabilitation periods are set out in the table below. The rehabilitation periods for an AtP run from the date the order is given.

Type Rehabilitation period
Category 1 AtP Spent immediately
Category 2 AtP 3 months

4.2.13. 'Category 1' AtPs are warnings given by a constable or a procurator fiscal and fixed penalty notices given under section 129 of the Antisocial Behaviour (Scotland) Act 2004. 'Category 2' AtPs are other types of non-court based disposals available to the police and prosecutors. They are fiscal fines, fiscal compensation orders, fiscal work orders and fiscal activity/treatment orders and a notice to comply with a restoration order.

4.3. Where more than one sentence has been received

4.3.1. Where more than one sentence is imposed in respect of a conviction (whether or not in the same proceedings) and none are 'excluded sentences', then, if the 'rehabilitation periods' differ in length in accordance with section 5 of the Act, the rehabilitation period for the person applicable to the conviction will be the longer or the longest of those periods[80].

Example 6

An individual commits 2 separate offences and is sentenced to 3 months imprisonment for the first offence and fined for the second offence. The rehabilitation period for the custodial sentence is 7 years and the rehabilitation period for the fine is 5 years.

As a result of this rule the rehabilitation period for both will be 7 years. The effect of this is the rehabilitation period for the fine has been extended by 2 years.

Sentences served concurrently (at the same time)

4.3.2. If concurrent sentences are imposed, whether or not in the same proceedings, the longest applicable rehabilitation period will apply[81].

Example 7

An individual commits two separate offences and receives a 4 month prison sentence and a 6 month prison sentence. The court orders these to run concurrently. This will count as a single term of 6 months which carries a rehabilitation period of 7 years.

Sentences served consecutively (one after the other)

4.3.3. If consecutive sentences are imposed in the same proceedings, the sentences will be added together to calculate the rehabilitation period[82].

Example 8

An individual is given a 4 month and 6 month prison sentence ordered to run consecutively. This will count as a 10 month sentence which carries a rehabilitation period of 10 years.

Example 9

However, if the sentences in example 8 above were 12 months and 20 months imprisonment. The two sentences together will count as one sentence of 32 months. Therefore, this would be above the 30 months threshold and as such, both convictions would have to be disclosed for ever.

4.3.4. However, it should be noted that if consecutive sentences are imposed in separate proceedings, each conviction will be treated separately with the effect that whatever sentence given for each conviction has the longest rehabilitation period applying will extend the rehabilitation period for the other sentence.

4.4. Where a person breaches a conditional discharge or probation order

4.4.1. Where a person is given a conditional discharge or a probation order, and after becoming rehabilitated, they are later dealt with by a court for breaching the conditions of either sentence, this can affect their status as a 'rehabilitated person' for the offence for which they received the conditional discharge or probation order.

4.4.2. The 1974 Act states that in such cases, that person will no longer be deemed to have become rehabilitated in respect of the original conviction if a further sentence is imposed which attracts a longer rehabilitation period than the one which has already expired[83]. In such cases, the rehabilitation period for the original conviction becomes the rehabilitation period for the sentence imposed following the breach. This rule is without prejudice to the rule in relation to multiple sentences contained in section 6(2) of the Act.

Example 10

An individual is convicted of theft and is given a conditional discharge. The rehabilitation period for such an order is either 1 year from the date of conviction or a period beginning with that date and ending when the conditional discharge ceases to have effect. It is the longest period of the two that will be the actual rehabilitation period. In this case the longest period is 2 years.

The individual breaches the conditions of the conditional discharge and is taken back to court and sentenced to 3 months imprisonment for the original theft offence for which they received the conditional discharge. The custodial sentence given following the breach has a longer rehabilitation period than the conditional discharge (7 years rather than 2 years) and this longer period is now the rehabilitation period.

4.5. Where a person is convicted of a further offence before rehabilitation period ends for a previous sentence

4.5.1. Where, during the rehabilitation period applicable to a conviction, a person is convicted of a further offence and receives a sentence which;

  • is not excluded from rehabilitation, and
  • is not disregarded in terms of section 6(6) of the 1974 Act, the 1974 Act operates in such a way as meaning neither of the convictions become spent until both rehabilitation periods have been completed.[84]

4.5.2. This means that, if the rehabilitation periods for either of the convictions would have ended earlier, the shorter rehabilitation period is extended in order for both to end at the same time. Essentially this can mean that a person, if they keep undertaking criminal activity that leads to them being convicted before their current rehabilitation period ends, may continually have their rehabilitation period extended in such a way that they never become a 'rehabilitated person'.

Example 11

An individual gets convicted in court for assault and fined £500. The rehabilitation period for this sentence is 5 years. 1 month before they become rehabilitated, the individual is convicted of aggravated assault and sentenced to 2 years imprisonment. The rehabilitation period for this sentence is 10 years.

As a result, the rehabilitation period for the fine will end at the same time as the rehabilitation period for the 2 year prison sentence. The effect is that the rehabilitation period for the fine is extended by 9 years and 11 months.

Some 3 years after completing their prison sentence, the individual will still have 5 years before they are rehabilitated. However, the individual is convicted again of a further offence and sentenced to a further 2 years imprisonment.

The effect is that the rehabilitation period for the fine and the previous 2 years imprisonment will end at the same time as the rehabilitation period for the second term of imprisonment of 2 years. The individual will not be rehabilitated for all 3 convictions until 10 years after the date of conviction for the final offence.

4.5.3. If the sentence imposed for the third conviction is one which is excluded from rehabilitation (e.g. a custodial sentence of more than 30 months or a life sentence), then none of the convictions which have yet to become spent will ever become spent.

Example 12

An individual gets convicted in court for assault and fined £500. The rehabilitation period for this sentence is 5 years. 1 month before they become rehabilitated, they are convicted of aggravated assault and sentenced to 3 years imprisonment.

As the second sentence is more than 30 months, this sentence is excluded from being rehabilitated under the 1974 Act and is never spent.

The effect of this is that the fine never becomes spent either.

4.5.4. However, if a person receives an 'excluded' sentence after the rehabilitation period for a previous conviction has expired, this will have no effect on the spent conviction.

Example 13

An individual gets convicted in court for assault and fined £500. The rehabilitation period for this sentence is 5 years. Some 6 years later (when they have become rehabilitated for the fine), they are convicted of aggravated assault and sentenced to 3 years imprisonment.

The effect of this is that only the 3 year prison sentence is never spent and will therefore show up on a basic disclosure for life. The fine remains spent.

4.5.5. If the further conviction is a disregarded conviction in terms of section 6(6) of the 1974 Act, this will not extend the rehabilitation period for the earlier conviction. However, the disregarded conviction may carry its own rehabilitation period, but this will not affect or be affected by the rehabilitation period for any earlier conviction.

Example 14

An individual gets convicted for breach of the peace and is fined £500. The rehabilitation period for this sentence is 5 years. 1 month before they become rehabilitated, they are convicted again for a further breach of the peace and receive a community payback order. This has a rehabilitation period of 5 years, but is also a disregarded conviction.

From the point the individual is convicted for the second time, the effect of this is that the individual will be rehabilitated for the fine after 1 further month, but will have 5 years before they become rehabilitated for the community payback order.

4.6. Where a person is convicted of an offence for conduct that had originally resulted in an AtP

4.6.1. The 1974 Act states that if a person is given an AtP (other than a fiscal or police warning) in respect of an offence and is then prosecuted and convicted of the offence, the rehabilitation period[85] for the AtP will end at the same time as the rehabilitation period for the offence. This can arise, for example, where a person is subsequently prosecuted after they accepted an AtP, but then fail to adhere to its terms.

4.6.2. Further to this, for those AtPs with a rehabilitation period of 3 months[86], if the conviction occurs after the end of the 3 month rehabilitation period, the AtP will be treated as not having become spent until the rehabilitation period for the offence ends. The period between the end of the rehabilitation period for the AtP and the subsequent conviction is therefore not to be treated as a period where the AtP was spent.

Example 15

A procurator fiscal receives a report that a relevant offence where use of an AtP can be considered. A relevant offence is one that can be prosecuted in the summary courts. Following consideration, the procurator fiscal decides it is appropriate to send that individual a notice which offers them the opportunity of performing unpaid work (a fiscal work order) as an AtP. The offer is for 30 hours unpaid work and the individual accepts this offer. The rehabilitation period for this is 3 months if they complete the fiscal work order.

The individual doesn't complete the fiscal work order and as a result gets prosecuted for the original offence. The sentence is a community payback order which has a rehabilitation period of 5 years.

The rehabilitation period for the AtP will now end at the same time as the community payback order and that is 5 years rather than 3 months.

4.6.3. If a person, who is over 16 years of age, is given a fixed penalty notice (FPN) by a constable for criminal activity and is subsequently prosecuted and convicted of the offence which gave rise to the FPN, the FPN;

(a) becomes spent at the end of the rehabilitation period for the court imposed sentence for the offence, and;
(b) is to be treated as not having become spent in relation to any period before the end of that rehabilitation period.

Example 16

An individual is given a fixed penalty notice by a constable. This AtP is spent at the point at which it is given (immediately).

They challenge this and the matter goes to court. They are found guilty of the offence for the criminal activity which gave rise to the FPN and are fined £300. The rehabilitation period for this sentence is 5 years.

The rehabilitation period for both the fixed penalty notice and the sentence received from the court will be 5 years.

4.7. Conviction data and sentencing trends since the 1974 Act came into force

4.7.1. To aid consideration of how the 1974 Act operates and how it might be modernised and reformed, we have set out below some key statistics showing the extent to which people have undertaken criminal activity in Scotland. This includes the number of number of adults in Scotland with a known criminal conviction and some analysis of the different type of offences those individuals have committed in order to get a criminal conviction.

4.7.2. This information should assist the reader to help understand how many people the 1974 Act affects and helps illustrate the wider impact of the 1974 Act, including the proportion of people who commit relatively minor offences compared with those who commit more serious offences.

4.7.3. We have also provided some analysis of the way sentencing trends have changed since the 1974 Act was commenced. This should assist the reader to understand more about how underlying sentencing trends, including for particular disposals, will have impacted on the disclosure of convictions through the operation of rehabilitation periods.

Conviction data

4.7.4. Figure 1 shows that there is a significant proportion of adult males with a known criminal conviction in Scotland. For the period 1989 to 2011, over 30% of men aged between 33 to 43 had at least one known criminal conviction[87] between 1989 and 2011, peaking at over 38% for those born in 1973.

Figure 1: Proportion of adult male population with a known criminal conviction (post 1989), by age band

Figure 1: Proportion of adult male population with a known criminal conviction (post 1989), by age band

4.7.5. As the data in the Scottish Offenders Index only goes back to 1989, the figures appear to drop off quite quickly for those born prior to 1973. However, courts data from earlier periods shows that there were actually many more court convictions in earlier periods, particularly during the 1970's, when there were much larger numbers of court convictions for relatively low-level offences such as breach of the peace and drunkenness. Based on a conservative estimate of the conviction rate for older cohorts, Scottish Government analysts have projected that at least one-third of the adult male population is likely to have a criminal record.

4.7.6. Figure 2 shows that women undertake less criminal activity than men and therefore have less involvement in the criminal justice system than men. Again for the period 1989 to 2011, known criminal convictions peak at around 9% for those women born in 1973. Generalising this to the population as a whole, this suggests that nearly one in ten of the adult female population is likely to have a criminal record.

Figure 2: Proportion of adult female population with a known criminal conviction (post 1989), by age band

Figure 2: Proportion of adult female population with a known criminal conviction (post 1989), by age band

4.7.7. These levels of prevalence of criminal convictions in Scotland offer a broadly similar comparison with a study of convictions in the population of England and Wales showing one-third of 48 year old men had a criminal conviction[88]. That study also found that for those who received a conviction, for the majority of people that would be their only conviction - about half of the men and three-quarters of the women with convictions only have one conviction.

4.7.8. These data show that having to potentially disclose previous criminal activity is not simply an issue for a small and hard-core minority, but something which affects a significant proportion of people throughout Scottish society. For women, nearly one in ten of those at the prime career ages have to deal with a criminal history when applying for a job and for men, that figure increases to one in three.

4.7.9. Figure 3 below shows the distribution of crimes and offences found amongst criminal conviction data in Scotland over the period 1974 to 2012. As can be seen, most convictions involve offences, which it could be argued, tend to be of the less serious type.

4.7.10. 50% of convictions were for offences such as breach of the peace and drunkenness. The next highest category (32% of convictions) includes crimes such as shoplifting, theft and housebreaking. 1% of convictions between 1974-75 to 2011-12 were for sexual crimes.

4.7.11. In considering how the 1974 Act operates, we think it is important for the reader to note the nature of criminal activity, which can result in a conviction, does obviously vary in seriousness. What is clear from this data is that criminal records are an issue not only for people with the most experience of our criminal justice system (e.g. repeat offenders and those who receive custodial sentences), but also for many people in our society who may only offend once in their lives for whatever reason and then seek to move away from their previous criminal activity and build a law abiding life and help contribute to Scottish society.

Figure 3: Total number of convictions 1974-75 to 2011-12, by crime type (excluding motoring offences)

Figure 3: Total number of convictions 1974-74 to 2011-12, by crime type (excluding motoring offences)

Sentencing trends

4.7.12. We have detailed below how the use of the three main sentencing options in Scottish courts has changed over time.

4.7.13. Since the 1974 Act was introduced, there has been a notable increase in the use of both custodial and community sentences which is illustrated in figures 4 and 5 below.

Figure 4: Number of custodial sentences by year

Figure 4: Number of custodial sentences by year

Figure 5: Number of community orders by year

Figure 5: Number of community orders by year

4.7.14. Conversely, however, there has been a substantial reduction in the use of court fines which is illustrated in figure 6 below. Although some of the reduction in more recent years in the use of the fine as a court disposal will likely to have been due to reductions in the number of crimes and offences committed, it is also the case that changes over many years in how less serious criminal activity, such as motoring offences, is dealt with in terms of an increased use of non-court disposals will have contributed to the reductions in the use of the fine as a court disposal.

Figure 6: Number of fines by year

Figure 6: Number of fines by year

Custodial sentence lengths

4.7.15. As can be seen in figures 7 and 8, since the 1974 Act was introduced average custodial sentence lengths have risen quite significantly.

Sentence length breakdowns

Figure 7 - 1974-75

Figure 7 - 1974-75

Figure 8 - 2011-12

Figure 8 - 2011-12

4.7.16. As can be seen from figures 9 and 10 below, whilst the number of sentences imposed each year of up to 6 months has remained broadly static, the number of sentences imposed each year of 6 months to 30 months has more than doubled since the mid-1980's[89]. This has substantially increased the proportion of ex-prisoners affected by the 10 year rehabilitation period rather than the 7 year rehabilitation period.

Figure 9: Number of sentences of up to 6 months by year

Figure 9: Number of sentences of up to 6 months by year

Figure 10: Number of sentences of 6 months to 30 months by year

Figure 10: Number of sentences of 6 months to 30 months by year

4.7.17. Similarly, figure 11 shows that the number of sentences imposed each year that will never been spent (i.e. sentences of 30 months or more) has also more than doubled since the mid-1980's.

Figure 11: Number of sentences over 30 months by year

Figure 11: Number of sentences over 30 months by year

Reconvictions

4.7.18. Within the 1974 Act, different types of disposals received for criminal activity attract differential rehabilitation treatment in terms of the periods that apply before the criminal activity becomes spent. For example (and as explained in more detail earlier in the chapter), a court imposed fine has a rehabilitation period of 5 years and a custodial sentence of up to 6 months has a rehabilitation period of 7 years. Generally speaking (though there are clearly exceptions), the more serious the criminal activity that has been undertaken by a person, the more likely it is that a more punitive disposal will be imposed and that more punitive disposal will then trigger a longer rehabilitation period in line with the 1974 Act.

4.7.19. We have explained that the underlying purpose of the rehabilitation of offenders regime is to try and balance the rights of ex-offenders who want to move on from their previous criminal activity so that they can lead a purposeful, law abiding life in society with the rights of employers to be informed about a person's previous criminal activity when making employment decisions. Given the variety of factors that influence a person's life and their future prospects, it is both difficult and probably largely uninformative to make any direct (or even indirect) correlation between the likelihood of reconviction and rehabilitation periods.

4.7.20. For general context however, we provide below some high level information on reoffending. Data shows that it is those who receive the longest custodial sentences (more than 4 years) who have the lowest re-conviction rates for all types of disposal. For example, 2009-10 data shows that prisoners released from sentences of 6 months or less were more than 3 times as likely to be reconvicted within a year than prisoners released from sentences of 4 years or more. However, while the risk of long term prisoners re-offending upon release is lower than for all other types of disposals, it should be noted that the impact of re-offending when such prisoners do commit further offences is generally higher than for offenders who re-offend after receiving other types of disposal i.e. long term prisoners who re-offend will generally commit more serious offences than short term prisoners who re-offend.

4.7.21. More generally looking at all disposals, high level data shows that the risk of an offender re-offending is highest immediately at completion of their sentence and the average risk of re-offending for an ex-offender will have approximately halved after a period of 4 years following completion of their sentence.

4.7.22. The ability of an ex-offender to move away from their previous criminal activity is greatly enhanced if they can gain employment and have a positive and stable family environment once they have completed their disposal. Yet it is at the point of completion of disposal when virtually all ex-offenders will have unspent criminal activity which requires to be disclosed. Some would argue that the current system of having to disclose virtually all criminal activity for a period of time immediately after completion of a disposal runs directly counter to assisting the rehabilitation prospects of ex-offenders as this is a key period of time for ex-offenders who want to move away from their previous criminal activity and build a law abiding life.

Summary

4.7.23. Over time and even with the fundamentals of the 1974 Act remaining largely unchanged, the impact of the 1974 Act on those people who have undertaken previous criminal activity has changed. For example, the increase in the average length of sentences has meant that more offenders now never become rehabilitated under the 1974 Act than was the case when the legislation was brought in.

4.8. Questions

Q12. Do you think some criminal offences or crimes should never be rehabilitated under the 1974 Act, (i.e. a person would always have to disclose it)?

Yes, No, and Depends on the Offence or crime checkboxes

Q13. If answered, 'Yes' or 'Depends on the crime or offence', what offences or crimes do you think should never be rehabilitated?

Homicide, Other violent offences, and Sexual offences checkboxes

Housebreaking/theft, and Fraud/bribery/corruption checkboxes

Criminal damage, and Drugs offences checkboxes

Public order offences, and Driving offences checkboxes

Other (please specify below) checkbox

Q14. Is a sentence of 30 months the appropriate point at which an offender will never become rehabilitated under the 1974 Act?

Yes, No checkboxes

Q14a. If you answered 'no', should it be shorter or longer?

Shorter, and Longer checkboxes

Q15. What do you think the appropriate rehabilitation period should be for the following disposals set out in the table below? (e.g. spent immediately or 1, 2, 3 months etc or 1, 2, 3 years etc.)

Custodial Sentence[90] Rehabilitation period Rehabilitation period (under 18)
A sentence for a term exceeding thirty months but not exceeding 48 months.
A sentence for a term exceeding six months but not exceeding thirty months.
A sentence for a term not exceeding six months
Any other range of sentence lengths, e.g. over 48 months and above (please specify)
Community Sentence[91] Rehabilitation period Rehabilitation period (under 18)
Probation
Community Service Order
Supervised attendance Order
Restriction of liberty Order
Drug treatment & testing Order
Community reparation Order
Anti-Social behaviour Order
Community Payback Order
A fine
Compensation Order
Financial Penalty Rehabilitation period Rehabilitation period (under 18)
Fine
Compensation Order
Other sentence[92] Rehabilitation period Rehabilitation period (under 18
Insanity, hospital, guardianship Order
Admonition[93]
Absolute Discharge
Conditional discharge
Alternative to Prosecution Rehabilitation period Rehabilitation period (under 18
Warnings given by a constable
Warnings given by Procurator Fiscal
Fixed penalty notices given under section 129 of the Antisocial Behaviour (Scotland) Act 2004
Fiscal fines
Fiscal compensation Orders
Fiscal work Orders
Fiscal activity/treatment Orders
Notice to comply with a restoration Order

Q15a. If you have stated in Q15 above that some of the above custodial (prison) sentences should be spent immediately, please explain why.

Q15b. If you have stated in Q15 above that individuals under the age of 18, receiving a custodial sentence, should have shorter rehabilitation periods than those aged 18 and above for equivalent criminal activity, please explain why.

Q15c. If you have stated in Q15 above that individuals receiving a custodial sentence of over thirty months should be able to be rehabilitated under the 1974 Act, please specify the length of the custodial sentence and your reasons why you think this would be appropriate.

Q15d. If you have stated in Q15 above that some of the above non-custodial sentences should be spent immediately, please explain why.

Q15e. If you have stated in Q15 above that individuals under the age of 18, receiving an non-custodial sentence, should have shorter rehabilitation periods than those aged 18 and above for equivalent criminal activity, please explain why.

Q16. What changes are needed to be made to section 5 of the 1974 Act to make the rehabilitation periods easier to understand?

Q17. Is it clear and understandable what happens to the rehabilitation period when more than one sentence is imposed in respect of a conviction?

Yes, and No checkboxes

Q17a. If not, what changes could be made to make this clearer?

Q18. Is it clear and understandable what happens to the rehabilitation period when an individual is convicted of a further offence before a rehabilitation period ends?

Yes, and No checkboxes

Q18a. If not, what changes could be made to make this clearer?

Q19. Do you think the rehabilitation period for the first offence should be extended if the offender commits a further offence?

Yes, and No checkboxes

Q20. Is it clear and understandable how rehabilitation periods are set where an individual initially receives an AtP for criminal activity, but then is convicted for the criminal activity after either a) failing to adhere to the terms of the AtP or b) refusing the AtP?

Yes, and No checkboxes

Q20a. If not, what changes could be made to make this clearer?