Allied Health Professions: disclosure guidance
Guidance for anyone supporting individuals with criminal convictions and mental health conditions/learning disabilities into work, volunteering or education by providing the necessary knowledge, resources and guidance on the disclosure process.
3 Disclosure Of Offences
3.1 Rehabilitation of Offenders Act 1974
In Scotland, the Management of Offenders (Scotland) Act 2019 ("the 2019 Act") was passed in 2019. The provisions contained in Part 2 of the 2019 Act (which were mainly commenced in November 2020) amended the Rehabilitation of Offenders Act 1974 ("the 1974 Act") in Scotland. Part 2 of the 2019 Act, amongst other things, reduced the period of disclosure for the majority of sentences. For example, the disclosure period for an admonishment was reduced from 5 years to zero (i.e. spent immediately) and the disclosure period for a fine was reduced from 5 years to 12 months (6 months if under 18 at the date of conviction).
The changes also mean anyone who has been convicted of a criminal offence and sentenced to prison for no longer than 48 months can be regarded as a 'protected person' after a specified period, provided they receive no further convictions. After the specified disclosure period has passed the conviction is considered to be 'spent' and the individual is not obliged to reveal it and cannot be prejudiced by it.
At present, anyone receiving a custodial sentence of over 48 months is unable to become a 'protected person' under the terms of the 1974 Act because it is classed as an 'excluded' sentence. As such, they will be required to disclose this conviction indefinitely. Please see the disclosure periods tables for more information. The 1974 Act exists to balance the need to ensure public protection by allowing employers and potential employers to access to relevant information about a person's criminal background with the separate need to help those convicted move on from their previous offending and become a 'protected person'. Detailed guidance on the reforms to the 1974 Act can be found on the Scottish Government's webpage.
3.1.1 Spent and Unspent Convictions
A conviction is considered spent after the disclosure period for the conviction or Alternative to Prosecution (AtP) has expired, the length of which will depend on the sentence, or non-court disposal in the case of an AtP, imposed for that offence (see section 3.1.3 for tables outlining disclosure periods). Once a conviction is spent it is generally not required to be disclosed. However there are some categories of employment and proceedings where disclosure of spent convictions is required. This is explained further in the next section.
An unspent conviction is a conviction in which the period of disclosure has not ended and as such, the legal protections not to disclose under the 1974 Act do not apply. Different periods of disclosure apply depending on the sentence received (e.g. a court fine becomes spent after 12 months or 6 months if under 18 at the date of conviction). An individual must declare, when asked, all unspent convictions to an employer or potential employer.
The rehabilitation periods in England and Wales have been amended under the Legal Aid, Sentencing & Punishment of Offenders Act 2012, ("the 2012 Act"). This means there are different periods of disclosure under the 1974 Act north and south of the border. For those individuals residing or looking for employment in Scotland then Scots law and not the 2012 Act will apply.
It is important to note that nothing in the 1974 Act prohibits anyone from obtaining employment. What the Act does is 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.
3.1.2 Exceptions
There are some categories of employment and proceedings to which the 1974 Act does not apply, such as when it is considered appropriate that access to a person's relevant previous criminal convictions are necessary for the purposes of public protection. In these specified employment categories disclosure of relevant spent convictions is required. This is because relevant spent convictions should be taken account of when employers are making recruitment decisions for jobs that involve a particular level of trust. This is to ensure adequate protection for children and vulnerable people in particular and to ensure public confidence is maintained in our police and judiciary by allowing specific employers to be informed about the background of potential/actual employees even when the relevant conviction has become spent.
Examples of positions which are exempt include:
- Financial sector
- Child care services
- Care services
- Health professions
- Law enforcement
- Licensing work (i.e. security)
- Teaching profession
Schedule 4 of the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions)(Scotland) Order 2013, as amended ("the 2013 Order") sets out the excepted professions, offices, employment and occupations where spent conviction information is required to be disclosed.
The system of self‑disclosure under the 2013 Order has been updated a number of times over the past few years. These changes mean that for the majority of circumstances set out under the 2013 Order there is less self-disclosure of spent convictions. This is because as a result of these changes not all spent convictions are now required to be automatically self-disclosed (i.e. when they become a protected conviction).
Determining when the rules of self‑disclosure apply can be complex. It will depend on the particular offence and on the circumstances of the question being asked. In some cases all unspent and spent convictions require to be disclosed. In other cases certain spent convictions do not have to be disclosed. The decision about whether or not a spent conviction should be self-disclosed is now determined, in part, by whether the offence for which the person was convicted is a listed offence and if so, what list the offence is attached to. That is, whether it is a schedule A1 offence (offences which must be disclosed subject to exceptions), a schedule B1 offence, (offences which are to be disclosed subject to rules) or an offence not on either schedule.
Decisions about whether or not a relevant spent conviction should be disclosed is managed by Disclosure Scotland. More on this can be found in section 4 of this document. This is helpful to know as, if someone has relevant spent convictions, these can be disclosed in the Protection of Vulnerable Groups (PVG) scheme record and a standard or enhanced disclosure under the Police Act 1997. It may be that the individual would wish to consider the disclosure process prior to applying for such jobs.
It is an offence under the Data Protection Act 2018 (unless specific conditions apply[11]) and section 9 of the 1974 Act for anyone to procure the disclosure of personal data to another person without the consent of the controller, this includes those with access to criminal records disclosing spent convictions unless authorised to do so. There are also offences under sections 123 and 124 of the Police Act 1997 and sections 65 to 67 of the Protection of Vulnerable Groups (Scotland) Act 2007 about the handling and use of information provided by Disclosure Scotland; making false statements in connection with disclosure applications; and falsifying disclosure certificates and records.
3.1.3 Disclosure Periods
The disclosure period (the length of time before an AtP or conviction becomes spent) is determined by the type of disposal given or the length of the sentence imposed. It is calculated from the date of conviction or date the AtP is given (or accepted).
Where a single sentence has been received
The disclosure periods for particular sentences are set out under section 5, Table A (in section 5A), and Table B (in section 5B) of the Rehabilitation of Offenders Act 1974. It should be noted that Table A provides that if any other disclosable sentence is given which is currently not otherwise mentioned in Table A, or in Table B or sections 5(2D), 5C to 5J then the default disclosure period for that conviction is 12 months or 6 months if under 18 at the date of conviction.
Where more than one sentence has been received
Section 6 of the 1974 Act sets out the rules which determine the length of the disclosure period of a conviction. The disclosure period applicable to a conviction depends principally on the disclosure period applicable to the sentence imposed for that conviction. However, the rules as to when a conviction becomes spent get more complicated when more than one sentence is imposed for a conviction or if a person is convicted of further offences before their existing convictions are spent.
If more than one sentence is imposed in respect of a conviction, whether or not in the same proceedings and none are 'excluded sentences', (for example, a fine and a non-harassment order), and the 2 sentences have a different disclosure period attributable to them, the conviction requires to be disclosed in accordance with the longer or longest of these periods.
Example
If a 25 year old person gets convicted of an offence and is fined (12 month disclosure period) and is also given a 5 year non-harassment order (5 year disclosure period) then the disclosure period for that conviction will be 5 years.
This is because the disclosure period applicable to the conviction is the same as the disclosure period applicable to the non-harassment order, which has the longer of the 2 disclosure periods for the 2 sentences.
If someone gets convicted of a further offence, in solemn proceedings, before the end of the disclosure period applicable to the first conviction, then whichever of the 2 disclosure periods would end earlier is extended so as to end at the same time as the other disclosure period.
Example
A person aged 25 gets convicted of an offence and given a court fine. The disclosure period for that sentence is 12 months. As no other sentences are imposed the disclosure period applicable to that conviction is 12 months and the conviction would otherwise become spent after 12 months.
However, 6 months later the person is convicted of a further offence, in solemn proceedings, and given a 2 year custodial sentence. The disclosure period for that sentence will be 6 years. As no other sentences are imposed the disclosure period applicable to the conviction is 6 years.
The disclosure period for the first conviction is 12 months. The disclosure period for the second conviction is 6 years.
As the disclosure period for the second conviction is greater, the disclosure period for the first conviction is extended so that it will end at the same time as the disclosure period for the second conviction.
That is, both disclosure periods will end 6 years from the date of the second conviction for the offence which resulted in the custodial sentence. This means that both convictions may become spent 6 years following the date of conviction of the second offence (provided no further offences are committed in which the person is convicted in solemn proceedings).
However, there are 3 exceptions to this rule set out in the 1974 Act:
1) section 6(4A) to 6(4C): (Adjournment and deferral)
2) section 6(5) to 6(5B): (Ancillary orders)
3) section 6(6): (Summary proceedings, service proceedings and convictions outside a Scottish court)
Section 6(4A) – 6(4C) of the 1974 Act rule: Adjournment and deferral
This rule is necessary to ensure the rule to extend disclosure periods under section 6(4) will not apply to situations where a case was adjourned or deferred, the person gets a further conviction during that period, and they are then given a sentence with no disclosure period for the first offence. For instance, an absolute discharge or an admonition. In such circumstances the second conviction will not impact on when the first conviction become spent.
Example
A person is convicted of an offence and sentencing is deferred for 6 months. During this period the person is convicted in solemn proceedings of a further offence and given a fine of £1,000. The disclosure period applicable to the fine is 12 months from the date of conviction.
After the 6 months deferral for sentencing in the first conviction the person is admonished for that first conviction.
The rule in section 6(4) could have meant that the disclosure period applicable to the first conviction was extended to be the same as that of the second conviction (because that is longer). However, because an admonishment was given for that first conviction the rule in section 6(4B) applies and the disclosure period applicable to the first conviction is not extended. That means that the first conviction becomes spent.
Section 6(5) to 6(5B) rule: Ancillary orders
The rule in section 6(4) of the 1974 Act does not apply to extend the disclosure period applicable to a conviction when the only sentence imposed for the other conviction is an ancillary order.
An ancillary order is one mentioned in section 5(2D) of the 1974 Act. This exception to the rule is set out in section 6(5).
Where, in addition to the ancillary order another sentence is imposed for a conviction, in determining whether the disclosure period applicable to another conviction is extended by the rule in section 6(4), the disclosure period applicable to the ancillary order is to be disregarded. This exception to the rule is set out in section 6(5A) and (5B).
Example
Section 6(5): A person aged 25 is convicted of an offence (conviction 1) and is given a 5 year non-harassment order (but no other sentence). This will have a disclosure period of 5 years. One year later the person is convicted again (conviction 2) and is given a fine. The disclosure period applicable to conviction 2 is 12 months. This is not extended to match the 5 year disclosure period applicable to conviction 1.
Example
Section 6(5A) and (5B): In a variation to the circumstances in the example immediately above, in addition to the non-harassment order given for conviction 1 the person also received a custodial sentence of 12 months.
The disclosure period applicable to the non-harassment order is 5 years and the disclosure period applicable to the custodial sentence is 3 years.
This means the disclosure period applicable to conviction 1 is 5 years. However, section 6(4) applies (if the second conviction occurred in solemn proceedings) and the disclosure period for conviction 2 is extended, because of the custodial sentence given.
By virtue of section 6(5A) and (5B), the disclosure period applicable to conviction 2 is only extended until the disclosure period applicable to the custodial sentence imposed for conviction 1 has expired. The disclosure period for the non-harassment order is ignored in determining the length of the extension.
Applying this rule, the disclosure period applicable to conviction 2 will last 2 years instead of 1 year. This is because the disclosure period for the custodial sentence for conviction 1 is 3 years but 1 year has already elapsed between convictions 1 and 2, leaving 2 years remaining.
The disclosure period applicable to conviction 1 will remain 5 years owing to the non-harassment order.
Section 6(6) rule: Summary proceedings, service proceedings and convictions outside a Scottish court
The rule under section 6(4) of the 1974 Act does not apply if the subsequent conviction was one heard before a criminal court in summary proceedings. In such cases, each conviction becomes spent in accordance with the disclosure period for that conviction only and neither extends the other.
Example
A person aged 25 is fined for a summary offence (conviction 1). The disclosure period is 12 months. Six months later the person is fined again for a further summary offence (conviction 2). In such a case, the disclosure period for the conviction 1 will be 12 months from the date of that conviction and the disclosure period for conviction 2 will be 12 months from the date of that conviction. Therefore, disclosure of the conviction 1 will end 6 months before disclosure for conviction 2.
The rule under section 6(4) also does not apply to service disciplinary proceedings for an offence listed in schedule 1 of the 1974 Act or to any conviction by or before a court outside Scotland of an offence in respect of conduct which, if it had taken place in Scotland, would not have constituted an offence under the law in force in Scotland.
Excluded sentences
Certain convictions are not capable of becoming spent. This is where an "excluded sentence" is imposed in respect of that conviction. These excluded sentences are listed in section 5(1) of the 1974 Act. 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.
Example
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.
This can be a complex matter and further information on the rules under section 6 can be found in Part 3 of the published Scottish Government's guidance on the 1974 Act.
Overview:
- An individual must declare, when asked, all unspent convictions to an employer
- The Rehabilitation of Offenders Act ("the 1974 Act") outlines the disclosure period for a conviction, determining whether a conviction can be considered 'spent'
- A spent conviction does not have to be revealed at interview or on a job application, subject to the disclosure requirements of relevant spent convictions under the 2013 Order.
- Persons should not be prejudiced by spent convictions if they are subsequently revealed on a higher level disclosure following a determination by a sheriff.
- Employers are entitled to ask only about unspent convictions during recruitment and cannot use a failure to disclose a spent conviction subsequently disclosed following a sheriff's determination as the basis for excluding or dismissing a person from employment.
3.2 Disclosure Periods
Information in this section can been found on the Scottish Government website.
Please use this link for full details on disclosure periods for custodial sentences. A summary of the information can be found in Table A below.
| Sentence length | 18 or over on date of conviction | 18 or over on date of conviction |
|---|---|---|
| Up to (and including) 12 months | Length of sentence plus 2 years | Length of sentence plus 1 year |
| Over 12 months & up to (and including) 30 months | Length of sentence plus 4 years | Length of sentence plus 2 years |
| Over 30 months & up to (and including) 48 months | Length of sentence plus 6 years | Length of sentence plus 3 years |
| Over 48 months | This is an excluded sentence and the conviction will not become spent after a specific amount of time | This is an excluded sentence and the conviction will not become spent after a specific amount of time. |
Offending committed by those under the age of 18
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 disclosure period is halved.
Example
A 6 month custodial sentence given to a person under 18 at date of conviction may become spent after 1½ years from the date of conviction (i.e. the disclosure period is the period of the sentence plus a further "buffer period" of 1 year, giving a total of 1½ years).
A 12 month custodial sentence given to a person under 18 at date of conviction may become spent after 2 years from the date of conviction (i.e. the disclosure period is the period of the sentence plus a further "buffer period" of 1 year, giving a total of 2 years).
| Disposal | 18 or over on date of conviction | Under 18 on date of conviction |
|---|---|---|
| Absolute discharge | Zero | Zero |
| Admonishment | Zero | Zero |
| Bond of caution | 6 months, or length of caution period, whichever is the longer | 3 months, or length of caution period, whichever is the longer |
| A fine or compensation order | 1 year | 6 months |
| Community Payback Order, Drug Treatment & Testing Order and Restriction of Liberty Order | 12 months or length of order, whichever is the longer | 6 months or length of order, whichever is the longer |
| Adjournment/Deferral after conviction | Until relevant sentence[12] given | Until relevant sentence given |
| An order under section 61 of the Children and Young Persons (Scotland) Act 1937 | N/A | 12 months |
| Ancillary Orders | Length of order[13] | Length of order |
| An endorsement made by a court in relation to an offence mentioned in schedule 2 of the Road Traffic Offenders Act 1988 | 5 years | 2½ years |
| Any other sentence not mentioned in sections 5 to 5J of the 1974 Act | 1 year | 6 months |
| Disposal | 18 or over on date of conviction | Under 18 on date of conviction |
|---|---|---|
| Hospital Direction | Not a sentence under the 1974 Act (not included in a disclosure certificate) | All have same disclosure periods as someone 18 or over at date of conviction |
| Guardianship Order | Zero[14] | |
| Assessment/Treatment Order | Until final disposal given | |
| Interim Compulsion Order | Until final disposal given | |
| Compulsion Order (CO) | Length of order. After 12 months an application can be made to the MHTS[15] under section 164A of the MH 2003 Act[16] for disclosure to end | |
| Compulsion Order with Restriction Order (CORO) | Length of order. If the restriction order ends and the CO remains, an application can be made to the MHTS for disclosure of the CO to end 12 months after the restriction order ends |
3.3 Service Disciplinary Proceedings
Section 2 of the 1974 Act applies to any person who is dealt with in service disciplinary proceedings. Any finding of guilt in such proceedings is treated as a conviction and any punishment awarded is treated as a sentence for the purposes of the 1974 Act.
Section 2 sets out the types of proceedings that are to be regarded as "service disciplinary proceedings" for the purposes of the 1974 Act.
Unless specifically set out under sections 5B and 5I of the 1974 Act, the same rehabilitation periods will apply to sentences which are imposed in the service justice system as are imposed by the civilian justice system (e.g. a fine imposed by a Sheriff Court and a fine imposed by a Court Martial, would each have the same rehabilitation period).
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