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Policy in detail: Disclosure of previous criminal activity

Currently in Scotland, under the Rehabilitation of Offenders Act 1974 anyone who has been convicted of a criminal offence and sentenced to prison for less than two and a half years can be regarded as rehabilitated after a specified period of time, (the rehabilitation period), provided he or she receives no further convictions.  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 or AtP is considered to be spent.

Anyone receiving a custodial sentence of 30 months or more is never rehabilitated and as such, will have to disclose details of this conviction, if asked, for the rest of their lives.  The requirement to disclose previous criminal activity for specific time periods, depending on the conviction or AtP, exists to balance the need to ensure public protection by allowing employers/potential employers access to information about a person’s criminal background with the separate need to help offenders move on from their previous offending and become rehabilitated.

The general rule is that, once a conviction or AtP is spent, that individual does not have to reveal it and cannot be prejudiced by it.  For example, if an ex-offender whose convictions or AtPs are all spent is asked on an insurance form, job application form, or at a job interview, whether they have a criminal record, they do not have to reveal or admit its existence.  Moreover, an insurance company cannot refuse insurance or increase premiums and an employer cannot refuse to employ someone or dismiss someone because of a spent conviction or AtP.

It is important to note that the requirement to disclose previous criminal activity does not debar anyone from obtaining employment.  What this policy does is to provide a legal framework within which information is permitted either to be given or not given to employers/potential employers to help inform their decisions about employing individuals.  Therefore, disclosure is a consequence of the offence and is not a punishment.  It is designed to allow employers to take an informed decision about whether to employ an individual for the post for which they are applying.

There are some categories of proceedings and employment where the disclosure of a person's previous conviction(s) is still required even although the rehabilitation period has passed. This rule does not apply to AtPs.  The type of proceedings where questions can be asked when a rehabilitation period has ended and disclosure is still required include the granting, renewal or revocation of firearm, shot gun and explosives certificates as well as taxi driver and private hire driver licences.

The type of employment where questions can be asked when a rehabilitation period has ended and disclosure is still required include work in the financial sector, in child care positions, care services and health professions.  This rule does not necessarily debar ex-offenders from such work but entitles the employer to ask questions about previous convictions outwith the normal rehabilitation periods.  It should be pointed out that anyone applying for such employment will be required to disclose all their previous convictions.  The purpose of this rule is to protect the public.

Further information on the disclosure of previous criminal activity in Scotland and the rest of the UK can be found by accessing the following links: