Publication - Advice and guidance

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

Summary of 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 - summary
Disclosure Periods: Non-custodial sentences

Disclosure Periods: Non-custodial sentences

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[2] 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[3] Length of order 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 Table A or B or sections 5(2D), 5C to 5J 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 disclosure certificate) Zero[4] Until final disposal given Until final disposal given Length of order. After 12 months an application can be made to the MHTS[5] under section 164A of the MH 2003 Act[6] for disclosure of the CO 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

Any other sentence not mentioned in Table A or B or sections 5(2D), 5C 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).

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 cease 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 (disclosureperiod 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.

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

5. What happens if I have been convicted on an offence and also put on the Sex Offenders Register?

The 1974 Act is concerned with the disclosure of convictions and alternatives to prosecution (AtPs). It is not the way in which the risks posed by sex-offenders are managed in the community.

If a person commits a sexual offence they may be subject to notification requirements under Part 2 of the Sexual Offences Act 2003.

However, notification requirements do not affect when a conviction becomes spent. A person may be subject to notification requirements in connection with a conviction despite that conviction being spent.

Further details on the management of sex offenders can be found on the attached links to Police Scotland's website.

1. Registered sex offender management
2. Multi Agency Public Protection Arrangements (MAPPA)
3. Community 'Outing' of RSOs

Children's hearings

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.

Children's Hearings
Disposal 18 or over on date of conviction Under 18 on date of conviction
Discharge N/A Zero
Compulsory supervision order N/A Zero

Alternatives to Prosecution (AtP)

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 (asp 6), 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.

Example

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.

Example

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.


Contact

Email: nigel.graham@gov.scot