Publication - Advice and guidance

Self-disclosure of previous convictions and alternatives to prosecution: guidance

Guidance on the rules of self-disclosure in relation to previous convictions and alternatives to prosecution under the Rehabilitation of Offenders Act 1974 in Scotland.

Self-disclosure of previous convictions and alternatives to prosecution: guidance
(2) Disclosure periods applicable to sentences

(2) Disclosure periods applicable to sentences

Please note: The disclosure period for a conviction begins from the date of conviction.

Please note: A conviction becomes spent, and a person treated as a protected person in respect of that conviction, on the expiry of the disclosure period applicable to the conviction. 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, just because the disclosure period for a specific sentence has ended does not mean that all of a person's convictions would be spent. This is because the 1974 Act contains rules on what happens if a person receives more than one sentence for a conviction or is convicted of subsequent offences while their existing convictions are not yet spent. These rules are discussed in more detail in part 3 below.

12. What are the disclosure periods for custodial sentences?

Summary

Disclosure periods for custodial sentences

Sentence length

18 or over on date of conviction

Under 18 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

However, see "13. What happens if a person gets a custodial sentence over 48 months?" for details on how a conviction in respect of which this sentence was given can become spent

This is an excluded sentence and the conviction will not become spent after a specific amount of time

However, see "13. What happens if a person gets a custodial sentence over 48 months?" for details on how a conviction in respect of which this sentence was given can become spent

Examples in Table form

Examples of Disclosure periods for custodial sentences

Disposal

18 or over on date of conviction

Under 18 on date of conviction

6 months

2½ years

1½ years

12 months

3 years

2 years

24 months

6 years

4 years

36 months

9 years

6 years

48 months

10 years

7 years

Examples

(In these examples it is said that a conviction "may" become spent because the 1974 Act contains rules on what happens if a person receives more than one sentence for a conviction or is convicted on indictment in solemn proceedings of subsequent offences while their existing convictions are not yet spent. These rules are discussed in more detail in part 3 below.)

  • A 6 month custodial sentence given to an adult may become spent after 2½ years from the date of conviction (i.e. the disclosure period is the period of the sentence plus a further "buffer period" of 2 years, giving a total of 2½ years).
  • 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 an adult may become spent after 3 years from the date of conviction (i.e. the disclosure period is the period of the sentence plus a further "buffer period" of 2 years, giving a total of 3 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).
  • A 4 year custodial sentence given to an adult may become spent after 10 years (i.e. the disclosure period is the period of the sentence plus a further "buffer period" of 6 years, giving a total of 10 years).
  • A 4 year custodial sentence given to a person under 18 at date of conviction may become spent after 7 years from the date of conviction (i.e. the disclosure period is the period of the sentence plus a further "buffer period" of 3 years, giving a total of 7 years).

13. 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.

14. A person has been sentenced for more than one offence at the same time. Will the disclosure periods run concurrently or consecutively?

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 concurrently (at the same time) or consecutively (one after the other).

If concurrent sentences are imposed, then the longest applicable disclosure period will apply to all the sentences.

Example

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 from the end of the sentence, giving a total disclosure period of two years and 6 months before both convictions may become spent).

If consecutive sentences are imposed, then the sentences will be added together to calculate the disclosure period.

Example

A four month and six month prison sentence running consecutively will count as a ten month sentence (carrying a "buffer period" of 2 years from the end of the sentence, giving a total disclosure period of two years and ten months before the convictions may become spent).

15. What are the disclosure periods for different types of non-custodial sentences?

Summary

Disclosure periods for non-custodial sentences

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[4] 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[5]

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

Mental Health Orders

Hospital Direction

Guardianship Order

Assessment/Treatment Order

Interim Compulsion Order

Compulsion Order (CO)

Compulsion Order with Restriction Order (CORO)

Not a sentence under the 1974 Act (not included in a disclosure certificate)

Zero[6]

Until final disposal given

Until final disposal given

Length of order. After 12 months an application can be made to the MHTS[7] under section 164A of the MH 2003 Act[8] for disclosure to end

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

All have same disclosure periods as someone 18 or over at date of conviction

Absolute discharge

An absolute discharge is available as a disposal to the court and is used when the court considers that while a person has been convicted of an offence, the facts and circumstances of the case do not merit any form of punishment. In summary cases, an absolute discharge is not recorded as a conviction. However, for some purposes, for example if the person is convicted of another crime in the future, it may appear as a previous conviction when the court is considering sentencing. Reasons for an absolute discharge vary and can include because the crime was very minor, the offender was previously of good character or the offender is very young or old.

Notwithstanding the above, in the definition of a conviction under section 1(4) of the 1974 Act an absolute discharge is treated as a conviction for the purposes of the 1974 Act. There is good reason for this, namely to enable the conviction to become spent and the person in question to become a "protected person" in respect of that conviction.

The disclosure period for an absolute discharge is zero. This means it is spent immediately.

Example

A person, no matter what age, is convicted of an offence and given an absolute discharge. They will not be required to self-disclose this for general disclosure purposes.

Admonition

An admonishment is available to the court as a disposal and is a warning to a person convicted of an offence not to commit another crime, but no punishment is given alongside this warning. However, the offence is recorded as a conviction on centrally held state records (i.e. the Criminal History System).

The disclosure period for an admonishment is zero. This means it is spent immediately.

Example

A person, no matter what age, is convicted of an offence and given an admonishment. They will not be required to self-disclose this for general disclosure purposes.

Bond of caution[9]

A "bond of caution" is available to the court as a disposal. It is a sum of money lodged with the court by the person who has been convicted, as security of their being of "good behaviour" for a certain stated period. If the individual is of good behaviour for the specified period, the money is returned and the sentence has been served.

The disclosure period for a bond of caution is 6 months or the length of the caution period, whichever is the longer (or 3 months or the length of the caution period, whichever is the longer, if the individual was under 18 at the date of conviction).

Example

A person, over 18, is convicted in the sheriff court and given a £2,000 bond a caution to be of good behaviour for 12 months. As the length of the caution period is greater than 6 months the individual with be required to self-disclose this conviction for 12 months from date of conviction.

A fine or compensation order

Criminal fines are one of the most common disposals used in Scottish courts and, when used as the only disposal, are often reserved for less serious crimes.

A compensation order is an order for the convicted person to pay money to the victims of their crime. A compensation order can be imposed as the sole sentence or in conjunction with most other disposals and can be used for most offences. Compensation orders are a financial penalty and enforcement under the Criminal Procedure (Scotland) Act 1995 is similar to that of a fine.

The disclosure period for a fine and for a compensation order is 12 months (or 6 months if the individual was under 18 at the date of conviction).

Example

A person, over 18, is convicted of an offence and is given a £200 compensation order. They will be required to self-disclose this conviction for 12 months from date of conviction.

Example

A person, under 18, is convicted of an offence and is fined £150. They will be required to self-disclose this conviction for 6 months from date of conviction.

Community Payback Order ("CPO")

CPOs are available to the court under section 227A of the Criminal Procedure (Scotland) Act 1995. They can be given for any offence punishable by imprisonment, and in a limited form, to offences punishable by a fine.

A CPO is an order that imposes one or more of a range of requirements on the convicted person. These requirements can include unpaid work, undertaking programmes to address their offending behaviour, compensation, mental health treatment, participating in a drug or alcohol treatment programme and residing at a particular address.

Where a CPO only consists of an unpaid work activity, there is no requirement for supervision to be included. However, if the CPO contains any other requirements, the court must impose a supervision requirement. An "unpaid work or other activity requirement" can only be imposed on a person who is aged 16 or over. The requirement can be imposed for between 20 and 300 hours.

The disclosure period for a CPO is 12 months or the length of the order, whichever is the longer (or 6 months or the length of the order, whichever is the longer, if the individual was under 18 at the date of conviction).

Example

Where a CPO consists only of unpaid work, then the disclosure period is the length of the order if the work is to be carried out for longer than 12 months (or longer than 6 months if under 18 at date of conviction).

However, if the unpaid work lasts for less than 12 months (or less than 6 months if under 18 at date of conviction) then the disclosure period will be 12 months from the date of conviction or 6 months from date of conviction if under 18 at date of conviction.

All other CPOs include a supervision requirement which lasts for a specified period and this will be the length of the disclosure period (e.g. a CPO with a 24 month supervision requirement will have a disclosure period of 24 months). Unless the supervision period lasts for less than 12 months (or less than 6 months if under 18 at date of conviction) then the disclosure period will be 12 months (or 6 months if under 18 at date of conviction).

Drug Testing and Treatment Order ("DTTO")

A DTTO is available to the Court when a person is convicted of an offence other than one for which the punishment is fixed by law. The policy that lies behind the availability of the DTTO as a disposal is to help people to reduce their drug misuse and the crimes they may have committed because of it.

The disclosure period for a DTTO is 12 months or the length of the order, whichever is the longer (or 6 months or the length of the order, whichever is the longer, if the individual was under 18 at the date of conviction).

Example

A person, over 18, is given a 6 month DTTO. The disclosure period is 12 months from the date of conviction.

Example

A person, over 18, is given an 18 month DTTO. The disclosure period is 18 months from the date of conviction.

Example

A person, under 18 at date of conviction, is given a 6 month DTTO. The disclosure period is 6 months from the date of conviction.

Example

A person, under 18 at date of conviction, is given a 3 month DTTO. The disclosure period is 6 months from the date of conviction.

Restriction of Liberty Order ("RLO")

An RLO is available to the court where a person is convicted of an offence punishable by imprisonment and requires an offender to be:

  • restricted to a specific place for a maximum period of 12 hours per day for up to a maximum of 12 months, and/or
  • restricted from a specified place or places for 24 hours a day for up to 12 months.

They are a form of community sentence imposed by the court as an option in cases where they might otherwise be thinking of a prison sentence or another community penalty that would impose substantial demands on the individual.

The disclosure period for an RLO is 12 months or the length of the order, whichever is the longer (or 6 months or the length of the order, whichever is the longer, if the individual was under 18 at the date of conviction).

Example

A person, over 18, is given an RLO for 3 months. The disclosure period is 12 months from the date of conviction.

Example

A person, under 18 at date of conviction, is given an RLO for 3 months. The disclosure period is 6 months from the date of conviction.

Example

A person, over 18, is given an RLO for 12 months. The disclosure period is 12 months from the date of conviction.

Adjournment/Deferral after conviction

When a person is convicted of an offence the case can be adjourned or deferred before the person receives a final disposal for that offence for a variety of reasons. Under the changes made by Part 2 of the 2019 Act, adjournments and deferrals are now treated as a sentence under the 1974 Act. This is to ensure the conviction can be disclosed from the point they are convicted, as opposed to the point of sentence.

The disclosure period for an adjournment or deferral will run until the person is given a "relevant sentence" (e.g. admonished, fined).

Once the person is given a relevant sentence, the disclosure period for the conviction will then be based on the "relevant sentence" given.

This approach ensures there is no period in time after conviction but before sentence where self-disclosure is not required.

Example

A person, over 18, is convicted in court for an offence and sentencing is deferred for 6 months. The conviction has to be self-disclosed during this 6 months.

After 6 months they are given a relevant sentence of a £100 fine. As the disclosure period for a fine is 12 months from date of conviction, the conviction must continue to be self-disclosed for a further 6 months from the date the fine is given. That is because a fine has a disclosure period of 12 months from the date of conviction.

If, however, after 6 months they a given a sentence of admonishment following deferral (instead of a fine), the conviction will spent as soon as the admonishment is given. This is because the disclosure period for a sentence of admonishment is zero.

The same disclosure periods in the above examples would apply if the sentencing was adjourned for whatever reason.

An order under section 61 of the Children and Young Persons (Scotland) Act 1937

Such orders are no longer available to the Scottish courts. However, it is necessary to provide a disclosure period for such orders to maintain the protections for such orders under the 1974 Act.

The disclosure period for such an order is 12 months from the date of conviction.

In all likelihood such orders will now be spent and as such, will not be required to be self-disclosed.

Ancillary Orders

The 1974 Act applies to what this guidance refers to as "ancillary orders". These are sentences which:

  • are not otherwise dealt with in sections 5 to 5J of the 1974 Act (i.e. any of the other specific sentences mentioned in this guidance),
  • are imposed on a person in respect of a conviction, and
  • are given by way of an order which imposes on the person a disqualification, disability, prohibition, requirement or restriction, or which is otherwise intended to regulate the person's behaviour.

There are a wide range of ancillary orders available to the courts today. Examples of these type of orders are;

  • non-harassment orders,
  • supervision and treatment orders,
  • football banning orders,
  • antisocial behaviour orders,
  • exclusion from licensed premises orders,
  • confiscation orders,
  • serious crime prevention orders, and
  • an order disqualifying someone from driving etc.

The disclosure period for an ancillary order is the length of the order and depends on the provisions of the order.

If an order contains provision which enables determination of the date on which the conditions in the order cease to have effect, the disclosure period ends when the conditions cease to have effect.

If an order contains provision which provide that the conditions of the order have effect for an indefinite period (including the lifetime of a person) or without limit of time, the disclosure period ends when the conditions cease to have effect.

In the case of any other order, where there is no determination as to when it ceases to be in effect, the disclosure period will be 2 years from the date of conviction. This is necessary in the case of orders where it is not possible to determine the date on which the conditions cease to have effect.

Example

A person is given a 5 year non-harassment order in respect of a conviction and no other sentence. This is required to be disclosed until the order expires (i.e. 5 years).

Example

A person is convicted of drink driving. They are fined £500 (12 months disclosure period) has their licence endorsed (5 year disclosure period) and disqualified from driving for 10 years (10 year disclosure period). The disclosure period for the conviction will be 10 years from the date of conviction. This is because the order disqualifying the person for driving has the longest disclosure period.

Part 3 of this guidance provides further details of the rules associated with receiving more than one sentence in the same proceedings.

An endorsement made by a court in relation to an offence mentioned in schedule 2 of the Road Traffic Offenders Act 1988

An endorsement for a road traffic offence listed in schedule 2 of the Road Traffic Offenders Act 1988, imposed either by the court by order or by means of a fixed penalty notice (FPN) is a sentence for the purposes of the 1974 Act and may become spent after 5 years (or two and half years where the offender is under 18).

Road traffic legislation specifically provides that endorsement as a result of a FPN in these circumstances is to be treated, for the purposes of the 1974 Act, as a conviction and as if the endorsement had been made in pursuance of an order made by the court.

Where an order for disqualification from driving is imposed by the court on conviction, that conviction may become spent when the order ceases to have effect.

Where the court imposes more than one sentence or penalty for the offence then the longest disclosure period determines when the conviction may become spent.

Example

An adult is convicted of a road traffic offence and the court imposes a fine (disclosure period 1 year), an order for endorsement (disclosure period 5 years) and an order disqualification from driving for 1 year (disclosure period 1 year).

The disclosure period for this conviction will be 5 years because the endorsement carries the longest disclosure period.

Once the conviction becomes spent, the person is not required to declare it when applying for most jobs or (motor) insurance.

Part 3 of this guidance provides further details of the rules associated with receiving more than one sentence in the same proceedings.

For more information on the disclosure periods for particular driving offences, please consult: www.direct.gov.uk/en/motoring/driverlicensing/endorsementsanddisqualifications/dg_10022425

Any other sentence not mentioned in sections 5 to 5J of 1974 Act

This is essentially a "default" sentence. The purpose of this is to provide for a disclosure period for any new disposals that may be created but not yet included in the 1974 Act for whatever reason. If this was not included then any new disposal not included would not be required to be self-disclosed.

The disclosure period for this default sentence is 12 months (or 6 months if the individual was under 18 at the date of conviction).

Mental health orders

There are a number of mental health disposals available to a Scottish court which can be imposed on conviction[10] and fall within the meaning of the 1974 Act. The mental health disposals available to a Scottish court are as follows:

  • hospital direction
  • guardianship order
  • assessment and treatment orders
  • interim compulsion order
  • compulsion order
  • compulsion order with a restriction order

Hospital Directions

Section 59A of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") allows the court when sentencing a person who is convicted on indictment of an offence punishable by imprisonment to make a hospital direction authorising removal of a person to hospital, detention of a person in hospital and the giving of medical treatment. This must be done in addition to a sentence of imprisonment imposed in the case.

If the medical conditions for making the order no longer exist, the person can be returned to the institution (prison) in which they may have been detained, but for the existence of the order.

As the hospital direction is given in addition to a custodial sentence and relates to the place of a person's detention (hospital rather than prison) it is considered appropriate for such an order not to be considered a sentence under the 1974 Act. Therefore, the hospital direction will not be disclosed and will not affect the disclosure period of any other sentence.

This is provided for in the 1974 Act through removing a hospital direction from the definition of sentence in section 1(3). It should be noted that the custodial sentence given for the offence will of course carry its own disclosure period.

Guardianship Order

The 1974 Act applies to guardianship orders which are given on conviction (such orders can also be sought in the civil courts but this guidance only relates to those given on conviction). A guardianship order can be given when the court considers them to be the only means by which to safeguard the welfare of the person subject to the order.

In relation to the treatment of guardianship orders under the 1974 Act, the disclosure period is zero (i.e. they will be spent immediately).

This reflects that they are imposed as a safeguarding measure for the individual's welfare.

The disclosure period for a guardianship order is zero. If it is the only sentence given this means it is spent immediately and there is no requirement to disclose the conviction.

Assessment Orders and Treatment Orders

Assessment orders can be applied for by a prosecutor, by the Scottish Ministers or by the court of its own volition. Such orders can be imposed both pre-conviction, but also post-conviction. The 1974 Act only applies where such orders are imposed post-conviction.

Treatment orders can be made on application by a prosecutor, by the Scottish Ministers or by the court. Again, such orders can be imposed both pre-conviction, but also post-conviction and again the 1974 Act only applies where such orders are imposed post-conviction.

It is considered appropriate and necessary that where an order is given after conviction but prior to a final disposal being made by the court, the conviction should be disclosed until the person is sentenced, at which point it will be the final disposal that governs the disclosure period.

Therefore, the disclosure period for an assessment order and a treatment order is the length of the order. However, once the individual is given the final disposal (e.g. compulsion order, compulsion order with restriction or a custodial sentence) it will be that disposal that will determine the disclosure period for the offence and it will run from the date of conviction.

The disclosure period for assessment and treatment orders until final disposal given.

Example

A person over 18 is convicted of an offence and an assessment or treatment order is imposed. 12 months later the person is given a 12 month custodial sentence.

The assessment or treatment order should be self-disclosed for the length of the order (i.e. 12 months from the date of conviction) and then the disclosure period for the 12 month custodial sentence will be 2 years from the date it is imposed - rather than 3 years.

This is because the disclosure period for a 12 month custodial sentence is 3 years from the date of conviction. However, the conviction has already been required to be self-disclosed for 12 months as a result of the assessment or treatment order being imposed for 12 months. This means 2 years are left of the disclosure period of the 12 month custodial sentence.

Interim Compulsion Order

Interim compulsion orders can be made where a person has been convicted of an offence punishable by imprisonment (other than one for which the sentence is fixed by law). This is necessary where the court needs more information about the person's health to inform the future sentencing decision of the court. The court will impose such an order on the advice of two doctors and after the examination it is stated the individual needs to go to hospital for further examination. An interim compulsion order is distinguishable from an assessment order in that it is renewable, consequently allowing the lengthy assessment that may be required of people who have committed serious offences and/or appear to pose considerable risk.

As an interim compulsion order is granted in order to assess an individual's mental health prior to sentencing, it is necessary and appropriate to have a disclosure period that runs from the length of the order.

This is similar to, but not the same as, deferring a sentence. Therefore, an interim compulsion order will run until the person is given the final disposal by the court. The disclosure period will then be determined by that final disposal and will run from the date of the conviction.

The disclosure period for an interim compulsion order is the length of the order.

Compulsion Order ("CO")[11]

Please note disclosure periods are only relevant for COs given where the person was convicted of an offence or where there was a relevant finding that the person committed the offence on an examination of the facts.

When a criminal court imposes a CO, it will expire after 6 months unless it is extended. The Mental Health (Care and Treatment) (Scotland) Act 2003 ("the MH 2003 Act") governs the review and extensions of a CO. There is no limitation on the number of extensions, providing that the person continues to meet the conditions for being subject to the CO.

The default disclosure period of a CO is the length of the order (i.e. the conviction should be disclosed for as long as the order is in force).

However, the patient or the patient's named person is able to apply to have the disclosure period of the CO come to an end. An application of this type is made under section 164A of the MH 2003 Act as inserted by section 26 of the 2019 Act. Applications can be made from 12 months after the CO is given.

If a person's application is not successful then they may apply again. However, they are not able to apply until 12 months after their previous application was refused.

If the patient or patient's named person does not apply to the Mental Health Tribunal, disclosure will continue to apply for the length of the order.

Example

A person is convicted of an offence and given a CO. After 6 months the CO is not extended. In such circumstances the disclosure period for the CO is 6 months from the date of conviction.

Example

A person is convicted of an offence and given a CO. After 6 months the CO is extended for a further 12 months. 6 months after the CO is extended the patient or the patient's named person can make an application to seek the end of the disclosure requirements of the CO.

If the application is successful the disclosure period applicable to the CO will end.

Compulsion Order with Restriction Order ("CORO")

The disclosure period for a CORO is the length of the order.

The reason for this approach is that the restriction element of the order is only imposed if the court takes the view that it is necessary for the protection of the public from serious harm and therefore it is considered that there is sufficient correlation between the conviction and the risk the individual poses to justify disclosure.

However, under section 193(5) of the MH 2003 Act, the restriction element of a CORO can be revoked if the risk of serious harm falls away. If the restriction order is revoked, the CO can, in some cases, still be left in place which raises the question of disclosure of this remaining element.

If the CO order remains in place, the remaining CO element of the CORO is treated in the same way as a CO made as a standalone order under the 1995 Act.

As noted above, this means that if the RO element of a CORO is revoked, disclosure continues to be necessary for the length of the order subject to the operation of the application mechanism by the person subject to the CO.

However, an application can be made under section 164A of the MH 2003 Act from 12 months after the RO element of a CORO is revoked.

16. What are the disclosure periods for Children's Hearings disposals?

Section 3 of the 1974 Act provides that, where a child is referred to a children's hearing on grounds that the child committed an offence, the acceptance or establishment (or deemed establishment) of that ground is a conviction for the purposes of the 1974 Act and the disposal by the hearing is a sentence.

Two different disposals are available to a children's hearing. They are a discharge and a compulsory supervision order.

The disclosure period for both a discharge and a compulsory supervision order is zero. This means they are spent immediately.

17. What are the disclosure periods for service disciplinary offences?

The same disclosure periods apply to sentences which are imposed in the service justice system as are imposed by the civilian justice system (for example a fine imposed by a Sheriff Court and a fine imposed by a Court Martial would each have the same disclosure period of a year, beginning with the date of conviction).

However, there are certain service sentences/disposals that can only be imposed by the service justice system (e.g. sentence of dismissal from Her Majesty's service or service detention). There are specific disclosure periods for such sentences which are set out in sections 5B and 5I of the 1974 Act. These are set out in the table below.

Disclosure periods for Service Disciplinary Offences

Disposal

18 or over on date of conviction

Under 18 on date of conviction

A sentence of cashiering, discharge with ignominy or dismissal with disgrace from Her Majesty's service

10 years

5 years

A sentence of dismissal from Her Majesty's service

7 years

3½ years

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 years

2½ years

A custodial order under section 71AA of the Army Act 1955 or the Air Force Act 1955, or under section 43AA of the Naval Discipline Act 1957, where the maximum period of detention specified in the order is more than 6 months

7 years

7 years

A custodial order under schedule 5A of the Army Act 1955 or the Air Force Act 1955, or under schedule 4A of the Naval Discipline Act 1957, where the maximum period of detention specified in the order is more than 6 months

7 years

7 years

A sentence of detention for a term exceeding 6 months but not exceeding 30 months passed under section 71A(4) of the Army Act 1955 or Air Force Act 1955, section 43A(4) of the Naval Discipline Act 1957 or section 209 of the Armed Forces Act 2006

5 years

5 years

A sentence of detention for a term not exceeding 6 months passed under section 71A(4) of the Army Act 1955 or Air Force Act 1955, section 43A(4) of the Naval Discipline Act 1957 or section 209 of the Armed Forces Act 2006

3 years

3 years

A custodial order under any of the schedules of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 mentioned above, where the maximum period of detention specified in the order is 6 months or less

3 years

3 years

A custodial order under section 71AA of the Army Act 1955 or Air Force Act 1955, or section 43AA of the Naval Discipline Act 1957, where the maximum period of detention specified in the order is 6 months or less

3 years

3 years

A service community order, or an overseas community order, under the Armed Forces Act 2006

5 years

2½ years or the length of the order, whichever is longer

A community supervision order under schedule 5A of the Army Act 1955 or the Air Force Act 1955 or under schedule 4A of the Naval Discipline Act 1957

1 year or the length of the order, whichever is longer

1 year or the length of the order, whichever is longer

An order under section 211 of the Armed Forces Act 2006

Where the person was 15 years of age or older at the date of the conviction

  • 5 years if the order was for a term exceeding 6 months
  • 3½ years if the order was for a term of 6 months or less

Where the person was
15 years of age or older at the date of the conviction

  • 5 years if the order was for a term exceeding 6 months
  • 3½ years if the order was for a term of
    6 months or less

Where the person was under 15 years of age at the date of the conviction

Length of the order plus 12 months

18. What are the disclosure periods for AtPs?

Disclosure Periods- Alternatives to Prosecution

Category 1 AtPs

Zero

Zero

Category 2 AtPs

3 months

3 months

AtPs are disposals which are primarily available to Scottish police and Scottish prosecutors to deal with criminal conduct other than by way of prosecution before a criminal court.

AtPs broadly fall into two categories and can be divided into "Category 1" and "Category 2" AtPs.

"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:

  • a conditional offer issued in respect of the offence under section 302 of the Criminal Procedure (Scotland) Act 1995,
  • a compensation offer issued in respect of the offence under section 302A of the 1995 Act,
  • a work order made against the person in respect of the offence under section 303ZA of the 1995 Act,
  • has, under subsection (5) of section 20A of the Nature Conservation (Scotland) Act 2004, given notice of intention to comply with a restoration notice given under subsection (4) of that section, and
  • has accepted an offer made by a procurator fiscal in respect of the offence to undertake an activity or treatment or to receive services or do any other thing as an alternative to prosecution, and

Therefore, depending on the type of the AtP, the 1974 Act provides that an AtP either becomes spent immediately or within 3 months of the AtP being issued.

Please note: Anything corresponding to a warning, offer, order or notice given as a result of an offence committed under the law of a country or territory outside Scotland will be treated in the same manner as an equivalent AtP given in Scotland.

Examples

  • A person commits a minor offence and given a warning by a police constable. This is spent immediately and the person is not required to disclose it.
  • A person commits an offence and given a fiscal fine of £50. The person will be required to disclose this, if asked, for 3 months from the date it was given.

Important Note: This is intended as general guidance only. It is not legal advice and must not be regarded as a definitive interpretation of the 1974 Act in Scotland. Anyone in doubt should seek their own legal advice.


Contact

Email: nigel.graham@gov.scot