Disclosure Periods: Custodial sentences
Summary guidance for the self-disclosure of previous convictions & alternatives to prosecution in Scotland under the Rehabilitation of Offenders Act 1974 (“the 1974 Act”)
|Disclosure periods for custodial sentences|
|Sentence length||18 or over on date of conviction||Under 18 on date of conviction|
| Up to (and including)
|Length of sentence plus 2 years|| Length of sentence plus
|Over 12 months & up to (and including) 30 months||Length of sentence plus 4 years|| Length of sentence plus
|Over 30 months & up to (and including) 48 months||Length of sentence plus 6 years|| Length of sentence plus
|Over 48 months||This is an excluded sentence and the conviction will not become spent after a specific amount of time A review mechanism will be available in due course for relevant sentences over 48 months||This is an excluded sentence and the conviction will not become spent after a specific amount of time A review mechanism will be available in due course for relevant sentences over 48 months|
1. What are the types of convictions which always have to be disclosed?
Certain convictions are not capable of becoming spent. This is where an "excluded sentence" is imposed in respect of that conviction. Excluded sentences are listed in section 5(1) of the 1974 Act.
2. What happens if I get another conviction for which an "excluded sentence" is imposed before my first conviction becomes spent?
Excluded sentences have no effect on the disclosure periods for previous or subsequent convictions. This means the disclosure period for the first conviction will not change.
An individual over 18 is convicted of an offence and fined £500 (conviction 1). The disclosure period for this sentence is 12 months from the date of conviction. Six months later the person is convicted of supplying class A drugs and given a 5 year custodial sentence (conviction 2) in solemn proceedings. This is an excluded sentence under section 5(1) of the 1974 Act.
The disclosure period applicable to conviction 1 remains 12 months and will not be affected by conviction 2.
3. What happens if I was given an excluded sentence and was convicted again?
As stated above, excluded sentences have no effect on the disclosure periods for previous or subsequent sentences. This means the disclosure period for the subsequent conviction will be determined by the actual sentence given for that conviction.
A person over 18 is convicted of an offence and sentenced to five years imprisonment. This is an excluded sentence. Six months after being released from prison they are convicted of a second offence and fined £500. The disclosure period applicable to the second offence is 12 months from the date of conviction and is unaffected by the first conviction.
Section 5 Rules
Consecutive and concurrent sentences
Section 5(2F): For the purposes of this section:
(a) consecutive terms of;
(i) imprisonment or other custodial sentences, or
(ii) detention under section 209 of the Armed Forces Act 2006 are to be treated as a single term,
(b) terms of imprisonment, or of detention, which are:
(i) wholly or partly concurrent, and
(ii) imposed in respect of offences of which a person was convicted in the same proceedings are to be treated as a single term.
Therefore, if an individual receives more than one sentence for different offences at the same time, the total disclosure period will depend on whether the sentences run consecutively (one after the other) or concurrently (at the same time).
If consecutive sentences are imposed, then the sentences will be added together to calculate the disclosure period.
A four month and six month prison sentence running consecutively will count as a ten month sentence (carrying a "buffer period" of 2 years, if over 18 at date of conviction, from the end of the sentence) giving a total disclosure period of two years and ten months before the convictions may become spent.
If concurrent sentences are imposed, then the longest applicable disclosure period will apply to all the sentences.
A four month and six month prison sentence ordered to run concurrently will count as a single term of six months (carrying a "buffer period" of two years, if over 18 from date of conviction, from the end of the sentence) giving a total disclosure period of two years and 6 months before both convictions may become spent).
Section 5(2F)(c): No account is to be taken of any subsequent variation, made by a court in dealing with a person in respect of a suspended sentence of imprisonment, of the term originally imposed.
A 2 year custodial sentence suspended for 2 years will have the same disclosure period as a 2 year custodial sentence that has not been suspended, (i.e. 6 years from date of conviction or 4 years from date of conviction if under 18 at date of conviction).
Sentences imposed outwith Scotland
Section 5(2F)(d): A sentence imposed by a court outwith Scotland is to be treated as the sentence mentioned:
(i) in section 5,
(ii) in Table A or Table B, or
(iii) in any of sections 5C to 5J,
to which it most closely corresponds.
This is the closest equivalent rule. This means sentences outwith Scotland must be treated as the closest equivalent Scottish sentence in order to determine the appropriate disclosure period.
4. What happens if a person gets a custodial sentence over 48 months?
At the moment a conviction cannot become spent if a custodial sentence of more than 48 months is imposed. This is because the sentence is an excluded sentence.
However, the Management of Offenders (Scotland) Act 2019 ("the 2019 Act") enables the Scottish Ministers to make regulations which will allow a person to apply for a review of their conviction if a "relevant sentence" was imposed in respect of that conviction (see below for the meaning of "relevant sentence"). The reviewer will determine whether or not the conviction should become spent (and therefore whether the person is a "protected person" in respect of that conviction).
A "relevant sentence" is;
a) a sentence of imprisonment or corrective training for a term exceeding 48 months, or
b) a sentence of detention for a term exceeding 48 months under section 207 (detention of young offenders) or 208 (detention of children convicted on indictment) of the Criminal Procedure (Scotland) Act 1995.
These regulations have not yet been made meaning it is not yet possible to apply for such a review.
Separate guidance will be published in due course when the review mechanism has been developed and the necessary regulations have been approved by the Scottish Parliament.