Appendix 3 The Rehabilitation of Offenders Act 1974
This note explains how the above Act may affect a child attending a children's hearing to accept offence grounds post 24 June 2013.
What is the purpose of the 1974 Act?
It is intended to limit the time which a person must reveal that they have either a 'criminal conviction' or post 24 June 2013 an 'alternative to prosecution'. From the 24 th June 2013, following implementation of the Children's Hearings (Scotland) Act 2011, the majority of offences admitted at a children's hearing or established in court will no longer be classed as a 'criminal conviction' but will be classed as an 'alternative to prosecution'. The alternative to prosecution disposal will be major advance in supporting a young person particularly when applying for employment.
Does any appearance at a children's hearing constitute a 'criminal conviction' or an 'alternative to prosecution'?
No. Children can be referred to a children's hearing on a number of different issues and the Rehabilitation of Offenders Act 1974 only comes into play when a child either admits an offence at a children's hearing or an offence is established by a sheriff in children's hearings proceedings. Any appearance at a children's hearing is in private and the press, even if present, cannot publish details of any child. Children and their parents do not need to tell anyone about it except for the circumstances defined in the Act. Children's hearings are not part of the criminal court system but records of decisions taken at children's hearings are kept by the police on the national computer system.
For how long do 'criminal convictions' or 'alternatives to prosecution' have to be revealed?
Any child who accepts offence grounds which results in a supervision requirement will have that offence appear on a standard or enhanced disclosure certificate or Protection of Vulnerable Groups ( PVG) scheme record issued by Disclosure Scotland until they reached age 40. This was quite complicated particularly if the child has had several appearances over time for various offences.
Following implementation of the 2011 Act the 'alternative to prosecution' will become 'spent' either three months from the date the compulsory supervision order was made, varied, continued or terminated or three months from the date the referral to the children's hearing was discharged.
The provisions in the 2011 Act will also cover retrospectively supervision requirements and discharges under the Children (Scotland) Act 1995 and the Social Work (Scotland) Act 1968.
AFTER THIS PERIOD, AN EMPLOYER DOES NOT HAVE TO BE TOLD ABOUT THE OFFENCE …..
But are there any exceptions to this rule?
Yes. As you can imagine, there are a number of jobs and situations where it is considered that even a child's previous behaviour is very important to know about. These are currently set out in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 and if any one of them applies, then every criminal conviction must be revealed, not matter how long ago it was. Examples of jobs and situations are listed below.
The repeal of section 3 of the 1974 Act
The 2011 Act will, however, sever the link between children's hearing disposals resulting from offence grounds and convictions and create a new link between children's hearing disposals and Disclosure Scotland by making changes to the Police Act 1997 which mean that only serious violent and serious sexual offences will be automatically disclosed on standard and enhanced disclosure certificates and PVG scheme records. The offences which will be automatically disclosed will be set out by an order (the offences order) to be made by Scottish Ministers.
The repeal of section 3 of the 1974 Act means that the 2013 Exclusions and Exceptions Order will not apply to children's hearing disposals which are an alternative to prosecution so an order will require to be made by Scottish Ministers which will ensure that individuals are not required to 'self disclose' to prospective employers previous disposals that will not be disclosed on standard and enhanced disclosure certificates and PVG scheme records. This order along with the offences order will come into effect when the 2011 Act is implemented on 24 June 2013.
If a child commits an offence (no matter the type of offence) which is considered to be of such seriousness as to justify prosecution and conviction then the terms of the 2013 Exclusions and Exceptions Order will apply.
What will a prospective employer do?
If a child does reveal any 'conviction', or alternative to prosecution then it does not mean that there is an automatic bar to the job, licence etc. Any employer or agency must use the information fairly and sensibly. Many children who have 'convictions' or alternatives to prosecution gain employment in the jobs or professions listed below.
'Spent convictions' or 'alternatives to prosecution' may be a proper reason for refusing a person employment, dismissing him from his employment, demoting him within his employment or in any other way prejudicing him in his employment if the employment is or relates to the following:
- Judicial appointments
- Prosecutors, officers assisting prosecutors, and officers assisting in the work of the Crown Office.
- Clerks (including depute and assistant clerks) and officers of the High Court of Justiciary, the Court of Session and the district court, sheriff clerks (including sheriff clerks depute) and their clerks and assistants.
- Traffic wardens appointed under section 95 of the Road Traffic Regulation Act 1984 or section 9 of the Police (Scotland) Act 1967.
- Constables, police custody and security officers, persons appointed as police cadets to undergo training with a view to becoming constables and persons employed for the purposes of, or to assist the constables of, a police force, military, naval and air force police.
- Any employment or work which is concerned with the provision of a care service.
- Any regulated work with children.
'Spent convictions' or alternatives to prosecution may be taken into account in considering a person's suitability for admission to the professions listed in the following paragraph. A person may be refused admission to the roll or register of these professions because of a 'spent conviction' or alternatives to prosecution. Such convictions or alternatives to prosecution are also admissible as evidence in disciplinary proceedings against a member of any of these professions. The professions referred to are:
- Medical practitioner
- Advocate, solicitor
- Dentist, dental hygienist, dental auxiliary
- Veterinary surgeon
- Nurse, midwife
- Ophthalmic optician, dispensing optician
- Pharmaceutical chemist
- Registered teacher
'Spent convictions' or alternatives to prosecution may be taken into account in relation to any application for the following licences etc:
- Firearms certificates and permits, shotgun certificates and registration as a firearms dealer
- Licences to employ abroad a person under the age of 18
- Certificates of fitness to keep explosives for private use
- Certificate of fitness to keep explosives.