Protection of vulnerable groups and disclosure of criminal information: consultation
This consultation seeks views on proposals for the reform to the disclosure regime in Scotland.
Section 6 - Additional Policy Questions
|Additional Policy Questions||
Other Relevant Information
Scottish Ministers consider Other Relevant Information (“ ORI”) to be important for public protection. It allows for the disclosure of non-conviction information and is a direct response to past tragic cases where information was known about serious offenders but not disclosed. The Bichard Report, following the Soham murders on 4 August 2002, and the Cullen Inquiry that followed the Dunblane massacre on 13 March 1996, both highlighted the importance of managing better what is known about individuals who are of interest to the police and about whom there are valid safeguarding concerns.
In response to the Cullen Inquiry, the 1997 Act introduced the ability for Disclosure Scotland to ask the chief officer of any relevant police force to provide information about the applicant for inclusion on the enhanced disclosure. Any information disclosed by a chief officer is known as ORI. And in enacting the 2007 Act (Scottish Ministers' response to the Bichard Report), the Scottish Parliament provided for the possibility of ORI being disclosed on the PVG scheme record.
Scottish Ministers are confident that Police Scotland and other UK police forces exercise utmost rigour before deciding to include ORI. Only a tiny minority of enhanced and PVG scheme record disclosures in Scotland, 766 in total from 2016 to 2017, contain such information. However, the law in Scotland governing ORI differs from the rest of the UK. In England and Wales the police forces work to Home Office guidance governing ORI and the law provides chief officers with a power to seek representations from disclosure applicants. It also affords applicants the right to apply for an independent review of the ORI to have it removed or changed prior to disclosure.
If a police force holds information about a disclosure applicant, the chief officer must decide they reasonably believes that it is relevant to the purpose of the disclosure requested, and whether it ought to be disclosed. The chief officer can also provide ORI to Disclosure Scotland as part of the continuous monitoring arrangements that are in place for PVG scheme members. It is not the intention of Scottish Ministers to erode this vital power, which can lead to barring under PVG as well as disclosure to an employer or prospective.
In a small number of cases, where the PVG scheme member or enhanced disclosure applicant is entitled to make an application to a sheriff for removal of a spent conviction, the individual will see any ORI before it is seen by a third party. However, in more typical circumstances, the ORI will be disclosed to the employer and the individual at the same time.
Irrespective of whether there is a right to apply for removal of spent convictions, individuals can make a request to Disclosure Scotland for a review of ORI included on an enhanced disclosure or a PVG scheme record. In most cases though the ORI will already have been disclosed to an employer before the request to review can be made.
When such a request for review is made, Disclosure Scotland asks the chief officer to look again at the ORI to assess if they still reasonably believe that it is relevant either to the type of regulated work the scheme member does or to the purpose of the enhanced disclosure, and if it still ought to be disclosed. The chief officer's decision is final, subject only to judicial review.
Ministers would like to alter the point at which the individual disclosure subject becomes aware of the police intention to disclose ORI. They would like to provide the individual with the opportunity to challenge any proposed ORI and have it removed or adapted before it is disclosed to a prospective employer. As such we consider it necessary to introduce additional steps in the process for disclosing ORI.
To achieve this we intend to seek a power for Ministers to issue statutory guidance in relation to the disclosure of ORI. This will include that the police will seek representations from the individual before the inclusion of that ORI on a PVG scheme record, or enhanced disclosure, and consider those representations and have regard to them. We propose to continue the right for the individual to request that the police should review whether or not ORI is disclosed, but in future there will be no disclosure to an employer or potential employer before this stage.
Where, after requesting a review, any individual remains dissatisfied with the police decision on including ORI on their disclosure we propose that the subject of the ORI should be able to apply to an independent reviewer to review whether the ORI should be included on their scheme record or enhanced disclosure prior to any disclosure of the ORI to an employer or potential employer.
This right to request an independent review would be available only after the existing right to seek a review by the chief officer had been exhausted, but before taking the step of moving to judicial review. We do not think there should be an appeal available in relation to a decision made by the independent reviewer, but the disclosure subject could seek a judicial review. One option would be to use the independent reviewer being appointed under the Age of Criminal Responsibility (Scotland) Bill (“the ACR Bill”) to carry out the proposed review function.
Question 72: Do you agree that Ministers should have a power to issue statutory guidance to Police Scotland on the processes governing the generation and disclosure of ORI, including seeking representations from the individual before issuing it for inclusion on an enhanced disclosure or PVG scheme record?
Question 73: Do you agree with Ministers' proposals to allow for representations to the chief constable before disclosure of ORI to a third party and for providing the individual with the option to appeal to an independent reviewer before ORI is disclosed?
Question 74: Do you agree that the independent reviewer being appointed under the ACR Bill should be used for reviewing ORI?
Disclosure provisions for 12 - 17 year old children
The current position
Scotland's current policy and legislative position already addresses the peculiar nature of youth offending as a serious, but usually temporary, phenomenon. Our Children's Hearings System already prevents many acts that would otherwise be construed as criminal from being processed as such, ensuring that behaviour by young people never reach a criminal court.
The existing position offers protections for young people who have committed offences. The Lord Advocate's Guidelines, the differential periods of disclosure provided for in the Rehabilitation of Offenders Act 1974 (“the 1974 Act”) and the reforms made to higher-level disclosures in 2015 have all contributed to a system that helps young people move on from past offending. The content of higher level disclosures (standard, enhanced or PVG) is filtered to ensure that minor spent convictions do not appear at all, moderately serious convictions appear for 15 years after conviction (7.5 years if the conviction was before the individual's 18th birthday) and serious offences stay on indefinitely, unless a sheriff orders otherwise.
Scotland's 'whole system approach' to youth justice is well-established, complementing other initiatives to prevent, tackle and cut youth crime. A growing body of research exists on why young people may desist from crime, and also about what gets in the way of positive outcomes. Professor Fergus McNeill from Glasgow University said :
“'Psychological' 'or 'correctional' rehabilitation can take a person part of the way towards a better life, but if the route is blocked, for example, by the practical effects of a criminal record or by the 'stickiness' of the criminal label and the refusal of the community to accept that someone has changed, then desistance may be quickly derailed.” 
The current position will be improved further with the enactment of the Age of Criminal Responsibility (Scotland) and the Management of Offenders (Scotland) Bills. The Age of Criminal Responsibility (Scotland) Bill was introduced into the Scottish Parliament on 13 March 2018. If enacted, it will mean that the behaviour of children under 12 can never result in a conviction. Also any disclosure by the state (Disclosure Scotland) of that pre 12 behaviour will only happens as ORI from Police Scotland, and after independent review.
The Management of Offenders (Scotland) Bill was introduced to Parliament on 22 February and will, if enacted, shorten the period for which most offences remain 'unspent', with measures to shorten further the 'unspent' period for most offences when the offender was under 18 years at the date of conviction. This will impact on basic and higher level disclosures and reduce disclosure by both the state or the individual.
However, for those aged 12 years or more when convicted there remains the possibility both of conviction and subsequent disclosure.
Proposal for the future
The impact of youth crime should not be underestimated. Adolescence and early adulthood is statistically a peak period for offending. Youth crime and disorder places a significant burden on society; it may put the public at risk of harm, can persist for years and active individuals may accrue many convictions.
Desistance from youth crime typically follows by the mid-twenties. There are particular disadvantages that impact on young people who persistently get into trouble with the law. Young people looked after and accommodated, for example, in foster care or residential care, are more likely to accrue convictions for minor matters that would likely have been dealt with by parental sanctions (see Moodie research from CYCJ 2016: 'Responses to offending in residential child care - factors that influence decision making'). The vast majority of children who are looked after and accommodated by the local authority are there on purely welfare and protection grounds, not offending behaviour. Yet there is a strong stigma felt by care experienced young people; judged and labelled as criminals despite having done nothing wrong or being in any way responsible for their care status. The experience of adversity and childhood traumas can draw children into harmful behaviours and lead to contact with the police that simply would not have occurred had the child not had to negotiate the care system. Scottish Ministers consider that we have a duty to help young people move on from early harmful or criminal behaviour and live productive lives when they are ready to do so, whilst simultaneously ensuring that the disclosure system addresses those who pose risks of serious harm to the public.
While youth offending will cease with age in most cases, this isn't always so. In fact, there are instances where early onset predicts later escalating criminality; it is one of the proven risk factors typically assessed when examining the behaviour of an adult offender. We therefore propose that the appropriate policy solution will strike a balance between the rights of the young person to get on with life without the unnecessary burden of a criminal record and the requirement that harmful behaviour is identified in the interests of the public protection.
The ACR Bill draws a clear line at 12 years with regard to revised disclosure provisions for children because that is the proposed new age of criminal responsibility; all of the provisions in the ACR Bill support that change. The Scottish Government knows that there is a requirement to consider more widely how the disclosure system works for children who are aged 12 or older so as to ensure it is equitable and fair to all, protecting the life chances of children who may have committed offences in the past but who now wish to move on with law-abiding lives.
If the ACR Bill progresses to law, behaviour by children under age 12 will not be labelled as criminal. However, as a child progresses through teenage years and towards adulthood it is reasonable to consider there is a growing sense of responsibility and accountability for their actions which is why they are held to be criminally responsible from 12, but nevertheless still protected by the Children's Hearings System and by the system for disclosure of such offending behaviour. The Government is committed to affording all young people the chance to overcome early adversity, including the adversity of involvement in offending behaviour, to become productive and fulfilled adult citizens. The 2016-17 'Programme for Government: A Plan for Scotland' says that Ministers will 'look afresh at the disclosure of early childhood offending to enable young people to move beyond early mistakes.' The current Programme for Government commits Ministers 'as part of the Year of Young People, [to] undertake a comprehensive audit on the most effective and practical way to further embed the principles of the UN Convention on the Rights of the Child into policy and legislation.'
During the preparation of the 2016 Report of the Age of Criminal Responsibility Advisory Group, members on its Disclosure Sub-Group reached a clear consensus that the issue of disclosure of conduct occurring when the subject was aged between 12 -17 merited early consideration and reform.
The policy solution to revise the system for the disclosure of offending conduct of individuals when age 12 or over has a variety of possibilities. Each option balances differently risks and benefits, and rights and responsibilities.
Some key policy options are outlined for discussion and debate below:
Make no changes to the existing system which would mean that convictions accrued from age 12 and before 18 years would remain in the same position as now, which means that they are disclosed whilst unspent on all levels of disclosure, and disclosed whilst spent on higher level disclosures if listed on schedules 8A or 8B of the Police Act 1997.
Apply for children between 12 and an upper age we are consulting on exactly the same disclosure system as has been set out in the ACR Bill for children under 12.
There would therefore be no possibility of disclosing automatically a conviction accrued during this age range, on any type of disclosure. A Level 1 disclosure (currently a basic disclosure) could contain no information about convictions under the upper age; there is also no possibility to include police information on this type of disclosure. All convictions accrued above age 12 and under the upper age limit would therefore remain undisclosed on those types of disclosures if this option was selected. Disclosure could only occur on Level 2 or PVG level disclosures as ORI following independent review.
At present, there is alignment between state disclosure and self disclosure for higher level disclosures. We are proposing that this alignment will be maintained under the future arrangements for Level 2 and PVG level disclosures. This will require changes to the Rehabilitation of Offenders legislation the nature of which will be contingent upon whatever decision is taken about the option for handling convictions obtained between 12 and the upper age.
If such a system were to be applied for disclosures requested only by people who are teenagers at the time of the disclosure request the impact would be low with around 870 disclosures per year. However, if this was applied for adult applicants who happen to have convictions from adolescence it would require a significant new investment in building capability and capacity in both the police and the independent reviewer service.
There is an option to build on the current legislation to provide that no conviction, regardless of how recent, may be disclosed on a state disclosure when the individual was, at conviction, aged between 12 years and the upper age. However, this protection would be set aside :
- Where the conviction is listed on schedule 8A of the Police Act 1997
- Where the conviction is listed on Schedule 8B of the Police Act 1997
- Where the conviction is of a type that cannot become spent under the Rehabilitation of Offenders Act 1974 (excluded from rehabilitation)
But protected convictions would not be disclosed on higher level disclosures.
The consequence of this is that more serious offending would continue to appear as is currently the case on disclosures of youth offending on level 1, 2 and PVG disclosures, but unspent convictions for minor offences, for example, dropping litter would never be disclosed. This provides special protections for children as the corresponding disclosures for similar convictions accrued by adults would include all minor offence convictions until they were deemed spent under the 1974 Act.
At present, there is alignment between state disclosure and self disclosure for higher level disclosures. We are proposing that this alignment will be maintained under the future arrangements for Level 2 and PVG level disclosures. This will require changes to the Rehabilitation of Offenders legislation that will be contingent on which option is selected disclosing convictions obtained whilst the individual was aged 12 to the upper age.
An individual may consider that even a serious conviction should not be disclosed because of their youth at the time of the offence and because they consider that the circumstances are exceptional enough to justify non-disclosure.
The current legislation allows an individual to apply to a sheriff for removal of schedule 8B convictions if they are already spent and for removal of schedule 8A convictions if they are already spent and after a certain period of time has expired. This period of time is shorter (seven and a half years) for individuals who were under 18 when convicted.
Pursuing this option would mean that the individual could apply to the sheriff for removal of convictions accrued between 12 and the upper age regardless of whether the conviction is spent or not. This applies another protection for children convicted of offences to have immediate recourse to have a court to look at their circumstances and direct that a matter should not be disclosed, where the sheriff decides that is the appropriate outcome.
This option would permit minor offending by young people to be forgotten immediately in disclosure terms so that it does not blight their life chances at critical junctures such as securing training and apprenticeships. An example of this is a young person's story Scottish Ministers encountered through the charity Who Cares? Scotland.
Lynne was looked after and accommodated and living in a care home. The reasons for her reception into local authority care were entirely about her care and protection, caused by an adverse family background that included domestic violence and parental alcohol abuse. After she went to live in a residential unit she felt poorly supported and believed that the attitude of the authorities towards her defaulted to the view that she was an offender or “bad girl” as she terms it. During a minor domestic argument at the care home when she was a teenager she threw a soft-boiled vegetable at a member of care staff and the police were called. She was prosecuted for assault. This criminal conviction continued to impact on her ability to get into work and training when she left care. 
It is also true that some scenarios that might arise under this option are more challenging for employers to accommodate. For example, recent minor theft convictions would not be disclosed yet a young person could present to start an apprenticeship in a bank or supermarket where they will handle cash. In that scenario it is important that the employer considers all the relevant sources of information when making a recruitment decision, including the strong probability that youthful offending will not persist into adulthood, the controls and training that they have in place for their employees as a deterrent to dishonesty and indeed the young person themselves seeing the opportunity of working as a very positive offer that they would be loath to lose. The disclosure system does not predict all instances of dishonesty in a workplace; much detected workplace crime comes from those who have not been previously detected or ever convicted. It is also true that the existence of a conviction, especially a minor one, may not be the best proxy for future behaviour. It is true that most, if not all, of us commit what would be criminal offences at various times of life for which we are never detected or convicted. The existence of a conviction on a person's record allows us to readily identify a group of citizens as being 'criminal' and therefore not like 'us' when in actual fact much of that is actually reflective of whether crime was detected or not.
Finally, it is worth reflecting on emerging evidence that after a period of desistance from typical offending types the probability of an offender being reconvicted returns to that of the general population. This tells us that people can and do change and past dishonesty does not necessary mean that the person will offend again, contrary to much received wisdom on this matter.  This is borne out by the testimony of major employers who recruit people with convictions. Research with such employers tells us that they value the individuals with adverse criminal records very highly as being loyal and trustworthy employees who recognise that employment has allowed them to move on and experience success.
There is no proposal made in this option to end the facility of the police to provide non-conviction information about those aged over 12 on the enhanced disclosure and PVG scheme record. The reader is drawn to review the policy proposal elsewhere in this consultation about changes to the general system of ORI so that there are new powers for Scottish Ministers to issue guidance to the police on ORI and, specifically, to provide that individuals can make representations before the disclosure of ORI to a third party and also a facility to have the decision independently reviewed before disclosure occurs.
These measures, if enacted, would enhance the protections for those who have conduct dating from age 12 to the upper limit so that the provision of ORI about that behaviour will be subject to a number of checks and controls that enhance fairness whilst retaining and protecting the important role that ORI has in protecting the public.
Question 75: Should there be specific provisions reducing the possibility of the state disclosure of criminal convictions accrued by young people 12 years or older on all types of disclosure?
Question 75a: If there should, what age range should the special provisions apply to?
1. 12 - 14 years
2. 12 - 15 Years
3. 12 - 16 years
4. 12 - 17 years
5. 12 - 18 years
6. 12 - 21 years
Question 75b: Please tell us why you have selected an age range or given your answer.
Questions 76: Should there be a presumption against the disclosure of all convictions accrued between 12 and a specified upper age, with the only possibility being police disclosure as ORI after ratification by the Independent Reviewer on the Level 2 and PVG Level disclosures?
Question 77: Should there be no state disclosure of any conviction between the age of 12 and the specified upper limit, except where the conviction is for an offence listed in schedule 8A or 8B?
Question 78: If there is a disclosure of an 8A or 8B conviction(s) should all other unspent convictions be disclosed even if the other unspent convictions are for offences not listed in schedule 8A or 8B?
Question 79: Should disclosure applicants with 8A and 8B convictions be able to apply immediately to a sheriff (or other authority) to have those treated as protected regardless of the passage of time?
Question 80: When including ORI on any disclosure about conduct between the age of 12 and the upper age limit should the police only be able to refer to matters they reasonably considered to be serious?
Availability of all types of disclosures for under -16s
At present, Disclosure Scotland offers all types of criminal record checks regardless of the age of the applicant. This is not the case elsewhere in the United Kingdom. Ministers in those jurisdictions believe that it is generally inappropriate for children under 16 to apply for criminal record checks as they should not have an unsupervised role where they are, for example, caring for other children or protected adults on behalf of an organisation or employer. We consider that it is appropriate to ask if the practice of not having a lower age limit should continue.
The prohibition would not be blanket, we would make exceptions in certain circumstances where a disclosure check on a young person may be in the public interest. An example might be when a foster family has a 15 year old child and a foster child is coming to live with them. The check would be a Level 2 check which is explained later in this consultation document.
Question 81: Do you agree with the proposal to place a lower age limit on applicants for criminal record checks?
Question 82: In what circumstances should a criminal record check for a child under 16 be permitted?
Registered persons and countersignatories for higher level disclosure applications
One feature of the current arrangements for higher-level disclosure applications is that they must be countersigned by an individual whose name is included on a register held by Disclosure Scotland under section 120 of the 1997 Act. You will have seen in the options set out in section 3 above that Ministers are of the view that a counter signatory will have a part to play in the future disclosure arrangements that are proposed for Level 2 and PVG Level disclosures.
At present, a person applying for registration under section 120 must be-
(a) a body corporate or unincorporate,
(b) a person appointed to an office by virtue of any enactment, or
(c) an individual who employs others in the course of a business.
In the case of paragraphs (a) and (b) above, once the person is registered, they can nominate another person, or persons, to act on their behalf as a counter-signatory. The countersignatory's responsibilities are set out in the 1997 Act, Regulations made under the 1997 Act, and the Code of Practice and include, among other things, authenticating the identity of higher level disclosure applicants, and handling the disclosure certificates. There is not currently a lower age limit for either a person applying to be the registered person, or for individuals being nominated as countersignatories. In view of the responsibilities both can have, Ministers propose to introduce a minimum age of 18 years for people who want to become registered person or those who are nominated to be countersignatory in connection with Level 2 and PVG Level disclosures.
Question 83: Do you have any concerns with this proposal?
The aim of self-directed social care is to put the supported person in control of their care (if they wish it), including taking on all employer responsibilities. They will not be able to do this unless they have been judged as having capacity, and in that case all decisions - and the right to make mistakes - sit with them.
The Social Care (Self-directed Support) (Scotland) Act 2013 provides for a supported person making self-directed social care arrangements. Under self-directed approaches to social care, a supported person may choose to directly employ their own staff using social care funding supplied by the local authority/ Integration Joint Board (which is a partnership between a local authority and a health board to manage adult health and social care services). A range of information will be available to the individual when making their decision and can include: professional qualifications, relevant work experience, and references.
At present under the 2007 Act, the supported person can (depending on the type of social care being provided) ask a prospective carer (unless that person is a family member, or a private individual unconnected with an organisation) to apply to join the PVG Scheme, and for disclosure of the prospective carer's statement of scheme membership. The PVG statement of scheme membership does not contain vetting information; it states that the person is a PVG scheme member and for which workforce, and whether she or he is under consideration for listing. It does not show whether the prospective care has any previous convictions.
Supported persons making social care arrangements have complained that this omission of information can lead to them having to make recruitment decisions in the absence of potentially relevant information.
Question 84: Do you think a supported person arranging self-directed social care should have access to vetting information which could include details about previous convictions relating to a prospective carer?
Question 84a: If you responded 'No' to Q84 , do you have any suggestions about how Disclosure Scotland checks could be structured to assist a supported person making their own arrangements for self-directed social care?
Private individuals - work with children and / or protected adults
The question about the extent to which private individuals who provide services should be subject to the proposed mandatory membership of the PVG Scheme arises in circumstances apart from self directed support. Under the current PVG Scheme, examples that have arisen include private tutors, and interpreters.
In cases, where a private tutor is being engaged, the person offering the work can ask for a PVG statement of scheme membership if the work being done will fall within the scope of regulated work because it is within the activities set out in Part 2 of schedule 2 of the 2007 Act. But again, this means that no vetting information is provided to the prospective recruiter. Private tutors providing services to an adult cannot apply for PVG scheme membership as their work will not fall within the definition of regulated work.
Question 85: Do you think this approach is correct?
Likewise with specialised interpreters whose assistance may be needed to allow a person to participate in day-to-day life. It is questionable whether this work is regulated work.
Question 86: Do you think that it should be?
If you do, the question about the appropriate level of disclosure arises
Question 87: Should vetting information be available if the arrangements are being made by a private individual?
With regard to charity trustees, there is a separate anomaly relating to the fact that a charity must have one main purpose only, that is work with children or work with protected adults, for a trustee to be able to join the PVG Scheme. If a charity has as its main purpose services directed at both vulnerable groups then trustees cannot apply to join the PVG Scheme. Subject to respondents' views on whether charity trustees of charities providing services to children and protected adults should remain within the scope of PVG scheme membership, we propose to sort this anomaly.
Question 88: Do you agree that the law be changed to sort this anomaly?
Notification requirements under Part 2 of the Sexual Offences Act 2003
Notification requirements under the Sexual Offences Act 2003 (“the 2003 Act”) arise following conviction anywhere in the UK, or following a caution in England and Wales, and Northern Ireland for an offence listed in Schedule 3 of the 2003 Act. A person subject to notification requirements under the previous legislation (the Sex Offenders Act 1997) whose notification requirement was still live when the 2003 Act came into force transferred to the new arrangements.
When a notification requirement is part of the disposal for a case, information about is included in all types of disclosure in line with the current law about the content of disclosure certificates.
In addition, to people convicted or cautioned in the UK, the 2003 Act provides that a chief constable can apply to a court for an order to subject a person convicted or cautioned for a relevant offence outwith the UK to the notification requirements.
At present, higher level disclosures (the standard or the enhanced disclosure under the 1997 Act, and the PVG scheme record under the 2007 Act) can include information about whether the applicant is subject to notification requirements made following an application by a chief constable.
Disclosure Scotland must include such information in the disclosures. This is set out in section 113A(3)(b) of the 1997 Act for the standard disclosure; section 113B(3)(b) of the 1997 Act for the enhanced disclosure; and section 49(1)(b) of the 2007 Act for the PVG scheme record. The requirement for Disclosure Scotland to include the information on higher level disclosures came into force on 28 February 2011.
Separate provision was made in section 78(1) of the 2007 Act to amend section 112 of the 1997 Act. That amendment would have allowed information about a notification requirement under the 2003 Act made following an application by a chief constable to be included on a basic disclosure. The amendment has not been brought into force.
Question 89: Do you think that provision should be made to bring into force the amendment at section 78(1) of the 2007 Act?
We will be taking this opportunity to make minor drafting amendments to the existing legislation, for example, updating the names of organisations or regulatory bodies listed within current legislation etc.
Question 90: Please tell us about any potential impacts, either positive or negative; you feel the proposals in this consultation document may have on any particular groups of people?
Question 91: Please tell us what potential there may be within these proposals to advance equality of opportunity between different groups and to foster good relations between different groups?
Question 92: Please tell us about any potential impacts you think there may be to particular businesses or organisations?
Question 93: Please tell us about any potential impacts you think there may be to an individual's privacy?
Question 94: Please tell us about any potential impacts, either positive or negative; you feel the proposals in this consultation document may have on children?
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