Understanding criminal record checks
To understand what’s changing for childhood criminal records once the Disclosure (Scotland) Act 2020 provisions come into force, we first need to understand how the system works. When we talk about disclosure of criminal records there are two types: ‘self-disclosure’, where someone is required to disclose their convictions in certain circumstances, for example when applying for a job and the employer asks about a criminal record; and ‘state disclosure’, where criminal record checks are carried out by Disclosure Scotland, on behalf of the Scottish Government, to be shared with potential employers and others.
There are different ‘levels’ of criminal record check that reveal different amounts of information, depending on the job role or reason for the check being carried out. The Disclosure (Scotland) Act 2020 changes these categories to Level 1 (previously ‘Basic’) checks and Level 2 (previously ‘Standard’ and ‘Enhanced’) checks.
The types of information that criminal record checks can disclose about you can be split into ‘unspent’ convictions or children’s hearing outcomes, ‘spent’ convictions or children’s hearing outcomes, and ‘other relevant information’. When you are convicted of a criminal offence or are given a children’s hearing offence outcome, there is a set ‘rehabilitation period’ before this becomes spent, during which the conviction/outcome essentially always has to be disclosed. After they become spent, they will only be disclosed if certain criteria are met. ‘Other relevant information’ (ORI) is any information that is held by police about past offending behaviour.
Level 1 (‘Basic’) checks are potentially available to anyone, and only show unspent convictions. Level 2 (‘Standard or ‘Enhanced’) checks can only be carried out for certain job roles, for example those deemed ‘sensitive’, and can show unspent and spent convictions and ORI.
Following changes brought in by the Age of Criminal Responsibility (Scotland) Act 2019, criminal record checks will normally only ever show information about behaviour when a child was between the ages of 12-17, however information relating to 8-11 year-olds could still be disclosed as ORI (read more here).
So what exactly will change for children and young people once the Disclosure (Scotland) Act 2020 comes into force?
The vast majority of childhood offences will become spent immediately, so won’t be disclosed on basic Level 1 checks.
The Management of Offenders (Scotland) Act 2019 shortened rehabilitation periods for convictions from the courts (Section 20), and made all disposals by children’s hearings of referrals on offence grounds immediately spent (Section 29), now in force. The Disclosure (Scotland) Act 2020 goes further to make all convictions from the courts system immediately spent too, except for certain serious offences (which we’ll call ‘exceptions’) where a conviction resulted in a child being sentenced to custody for more than 4 years, or for a sexual offence resulting in a custodial sentence of more than one year (Schedule 5, para 2, introduced by section 93(a)).
This means you shouldn’t ever have to self-disclose information about childhood convictions or outcomes (the term used in the Bill to refer to children’s hearings disposals – the term children’s hearing outcome will be used instead of conviction in a disclosure certificate), apart from in the above ‘exceptions’. A Level 1 ‘basic’ criminal record check will not show any information about childhood behaviour, other than the serious ‘exceptions’, in which case this information will be disclosed automatically without discretion (Section 1).
Less disclosure on Level 2 checks
For more in-depth Level 2 (‘Standard or ‘Enhanced’) checks, spent convictions can potentially be disclosed as Other Relevant Information (see below), or if the offence is on one of two lists of offences defined in the Act: ‘List A’ and ‘List B’ (Schedules 1 and 2). These are offences generally considered more serious or relevant for public protection, with List A being the more serious. List A offences can potentially be disclosed indefinitely, while List B offences can potentially be disclosed only if the conviction occurred in the last 5 and a half years (and if the offence did not result in an admonition or discharge) (Sections 9 and 10). Similar lists are used under the old disclosure regime, with the new Act moving some offences into or out of the lists, and reducing the time until List B offences are undisclosable. Although offences on List A and List B are eligible for disclosure, the new legislation also means they will not necessarily be disclosed:
Discretion and challenging disclosure decisions
The Disclosure (Scotland) Act 2020 creates new processes for deciding whether or not information about childhood convictions and outcomes should be disclosed in Level 2 checks, and for challenging such decisions (For 12-17 year-olds. For 8-11 year-olds the process is set out in the Age of Criminal Responsibility (Scotland) Act 2019).
A two-part test and a set of guiding principles for applying the test have been introduced (Sections 13 and 33). This means an active decision must now be made to disclose childhood outcome information, rather than disclosure occurring automatically if criteria are met, as was previously the case. You have a right to know why the decision to disclose was made, to ask for a review of the decision, and to appeal the decision in court on a point of law, and potentially have the information removed (Sections 20, 22, 23, 24, 30).
To determine whether or not information about childhood convictions or children’s hearings outcomes should be disclosed, officials at Disclosure Scotland must decide two things. First, whether the information is relevant to the job role or other trigger for the check being carried out. Second, even if the information is deemed to be relevant, whether it ought to be disclosed (Section 13). Officials should consider things like the nature and seriousness of the behaviour, the circumstances surrounding the behaviour, the age at the time and the time elapsed since it occurred, and whether any offences have happened before or since. When deciding whether the information ought to be disclosed, officials should also consider circumstances in the person’s life at the time that could have contributed to the behaviour, and the impact that including the information is likely to have on the person (Section 33).
Essentially this means that even if an offence fits a certain list, and is deemed relevant to a job role, officials can now decide it is not beneficial to disclose it. Disclosure decisions made by Disclosure Scotland can be challenged by applying to an Independent Reviewer, and the decision of the Independent Reviewer can be appealed on a point of law in a Sheriff Court (Sections 20, 22).
Other Relevant Information on children still included
Information held by the police relating to childhood behaviour can still be shared on a Level 2 check as ORI (Section 14). While it is positive the ORI must pass the ‘relevance’ and ‘ought to’ two-part test to be disclosed, and these decisions can be reviewed by the Chief Constable, then Independent Reviewer (Sections 23 and 24) and appealed in court on a point of law (Section 30), the uncertainty this form of disclosure creates for children is cause for concern.
For example, information on spent convictions or outcomes that wouldn’t be disclosed under the new rules could still all be shared as ORI, alongside information on alleged behaviour that has never been confirmed. This not only reduces legal certainty, it could undermine the intention of the Act to enable children and young people to move on from mistakes of their past. Scottish Ministers offered assurances that ORI is used sparingly for behaviour relating to childhood, and this must be the case under the new Act. Scottish Ministers must issue guidance to the police on how they should make and review these disclosure decisions (Section 63).
Conclusion
The new reforms are a big step forward for people with childhood convictions and children’s hearing outcomes, making it much less likely information will be disclosed. We particularly welcome that the Disclosure (Scotland) Act 2020 ends automatic disclosure of childhood information except for the most serious offences. However, we are concerned that any information can still potentially be disclosed as ORI, and we await the statutory guidance on this, which we hope will set a clear, high threshold for childhood information.
Summary/information
This explainer speaks to Part 1 of the Disclosure (Scotland) Act 2020, which contains the law on disclosure. We do not discuss Part 2 of the Act which amends the Protection of Vulnerable Groups (PVG) scheme.
The system is summarised in the below tables.
Level 1 Disclosures
Understanding criminal record checks
To understand what’s changing for childhood criminal records once the Disclosure (Scotland) Act 2020 provisions come into force, we first need to understand how the system works. When we talk about disclosure of criminal records there are two types: ‘self-disclosure’, where someone is required to disclose their convictions in certain circumstances, for example when applying for a job and the employer asks about a criminal record; and ‘state disclosure’, where criminal record checks are carried out by Disclosure Scotland, on behalf of the Scottish Government, to be shared with potential employers and others.
There are different ‘levels’ of criminal record check that reveal different amounts of information, depending on the job role or reason for the check being carried out. The Disclosure (Scotland) Act 2020 changes these categories to Level 1 (previously ‘Basic’) checks and Level 2 (previously ‘Standard’ and ‘Enhanced’) checks.
The types of information that criminal record checks can disclose about you can be split into ‘unspent’ convictions or children’s hearing outcomes, ‘spent’ convictions or children’s hearing outcomes, and ‘other relevant information’. When you are convicted of a criminal offence or are given a children’s hearing offence outcome, there is a set ‘rehabilitation period’ before this becomes spent, during which the conviction/outcome essentially always has to be disclosed. After they become spent, they will only be disclosed if certain criteria are met. ‘Other relevant information’ (ORI) is any information that is held by police about past offending behaviour.
Level 1 (‘Basic’) checks are potentially available to anyone, and only show unspent convictions. Level 2 (‘Standard or ‘Enhanced’) checks can only be carried out for certain job roles, for example those deemed ‘sensitive’, and can show unspent and spent convictions and ORI.
Following changes brought in by the Age of Criminal Responsibility (Scotland) Act 2019, criminal record checks will normally only ever show information about behaviour when a child was between the ages of 12-17, however information relating to 8-11 year-olds could still be disclosed as ORI (read more here).
So what exactly will change for children and young people once the Disclosure (Scotland) Act 2020 comes into force?
The vast majority of childhood offences will become spent immediately, so won’t be disclosed on basic Level 1 checks.
The Management of Offenders (Scotland) Act 2019 shortened rehabilitation periods for convictions from the courts (Section 20), and made all disposals by children’s hearings of referrals on offence grounds immediately spent (Section 29), now in force. The Disclosure (Scotland) Act 2020 goes further to make all convictions from the courts system immediately spent too, except for certain serious offences (which we’ll call ‘exceptions’) where a conviction resulted in a child being sentenced to custody for more than 4 years, or for a sexual offence resulting in a custodial sentence of more than one year (Schedule 5, para 2, introduced by section 93(a)).
This means you shouldn’t ever have to self-disclose information about childhood convictions or outcomes (the term used in the Bill to refer to children’s hearings disposals – the term children’s hearing outcome will be used instead of conviction in a disclosure certificate), apart from in the above ‘exceptions’. A Level 1 ‘basic’ criminal record check will not show any information about childhood behaviour, other than the serious ‘exceptions’, in which case this information will be disclosed automatically without discretion (Section 1).
Less disclosure on Level 2 checks
For more in-depth Level 2 (‘Standard or ‘Enhanced’) checks, spent convictions can potentially be disclosed as Other Relevant Information (see below), or if the offence is on one of two lists of offences defined in the Act: ‘List A’ and ‘List B’ (Schedules 1 and 2). These are offences generally considered more serious or relevant for public protection, with List A being the more serious. List A offences can potentially be disclosed indefinitely, while List B offences can potentially be disclosed only if the conviction occurred in the last 5 and a half years (and if the offence did not result in an admonition or discharge) (Sections 9 and 10). Similar lists are used under the old disclosure regime, with the new Act moving some offences into or out of the lists, and reducing the time until List B offences are undisclosable. Although offences on List A and List B are eligible for disclosure, the new legislation also means they will not necessarily be disclosed:
Discretion and challenging disclosure decisions
The Disclosure (Scotland) Act 2020 creates new processes for deciding whether or not information about childhood convictions and outcomes should be disclosed in Level 2 checks, and for challenging such decisions (For 12-17 year-olds. For 8-11 year-olds the process is set out in the Age of Criminal Responsibility (Scotland) Act 2019).
A two-part test and a set of guiding principles for applying the test have been introduced (Sections 13 and 33). This means an active decision must now be made to disclose childhood outcome information, rather than disclosure occurring automatically if criteria are met, as was previously the case. You have a right to know why the decision to disclose was made, to ask for a review of the decision, and to appeal the decision in court on a point of law, and potentially have the information removed (Sections 20, 22, 23, 24, 30).
To determine whether or not information about childhood convictions or children’s hearings outcomes should be disclosed, officials at Disclosure Scotland must decide two things. First, whether the information is relevant to the job role or other trigger for the check being carried out. Second, even if the information is deemed to be relevant, whether it ought to be disclosed (Section 13). Officials should consider things like the nature and seriousness of the behaviour, the circumstances surrounding the behaviour, the age at the time and the time elapsed since it occurred, and whether any offences have happened before or since. When deciding whether the information ought to be disclosed, officials should also consider circumstances in the person’s life at the time that could have contributed to the behaviour, and the impact that including the information is likely to have on the person (Section 33).
Essentially this means that even if an offence fits a certain list, and is deemed relevant to a job role, officials can now decide it is not beneficial to disclose it. Disclosure decisions made by Disclosure Scotland can be challenged by applying to an Independent Reviewer, and the decision of the Independent Reviewer can be appealed on a point of law in a Sheriff Court (Sections 20, 22).
Other Relevant Information on children still included
Information held by the police relating to childhood behaviour can still be shared on a Level 2 check as ORI (Section 14). While it is positive the ORI must pass the ‘relevance’ and ‘ought to’ two-part test to be disclosed, and these decisions can be reviewed by the Chief Constable, then Independent Reviewer (Sections 23 and 24) and appealed in court on a point of law (Section 30), the uncertainty this form of disclosure creates for children is cause for concern.
For example, information on spent convictions or outcomes that wouldn’t be disclosed under the new rules could still all be shared as ORI, alongside information on alleged behaviour that has never been confirmed. This not only reduces legal certainty, it could undermine the intention of the Act to enable children and young people to move on from mistakes of their past. Scottish Ministers offered assurances that ORI is used sparingly for behaviour relating to childhood, and this must be the case under the new Act. Scottish Ministers must issue guidance to the police on how they should make and review these disclosure decisions (Section 63).
Conclusion
The new reforms are a big step forward for people with childhood convictions and children’s hearing outcomes, making it much less likely information will be disclosed. We particularly welcome that the Disclosure (Scotland) Act 2020 ends automatic disclosure of childhood information except for the most serious offences. However, we are concerned that any information can still potentially be disclosed as ORI, and we await the statutory guidance on this, which we hope will set a clear, high threshold for childhood information.
Summary/information
This explainer speaks to Part 1 of the Disclosure (Scotland) Act 2020, which contains the law on disclosure. We do not discuss Part 2 of the Act which amends the Protection of Vulnerable Groups (PVG) scheme.
The system is summarised in the below tables.
Level 1 Disclosures
Under 18s | Will Unspent information be disclosed? | Will Spent information be disclosed? | Will Other Relevant Information be disclosed? |
“Outcomes” in Children’s Hearings System | Not Applicable – Spent immediately under section 29, Management of Offenders (Sc) Act 2019 | NO | NO |
Conviction in adult court for under 18 | Not Applicable except for certain serious offences – all offences spent immediately under Schedule 5 para 2, Disclosure (Sc) Act 2020 except where a conviction resulted in a custodial sentence of more than 4 years, or for a sexual offence a custodial sentence of more than one year
YES – included without discretion for unspent convictions (Section 1) | NO | NO |
Level 2 Disclosures
Under 18s | Will Unspent information be disclosed? | Will Spent information be disclosed? | Will Other Relevant Information be disclosed? |
“Outcomes” in Children’s Hearings System
| Not Applicable – Spent immediately under section 29, Management of Offenders (Sc) Act 2019 | List A YES – Included if Disclosure Scotland think ought to be and if relevant (Sections 10, 13, Schedule 1); have right to Independent Reviewer process and then appeal to sheriff on point of law (Sections 20, 22, 30) List B NO – If admonished or discharged, or happened more than 5 ½ years ago YES – if not been admonished or discharged and happened within the last 5 ½ years and Disclosure Scotland assess it is relevant and ought to be disclosed (Sections 10,13, Schedule 2); have right to apply to Independent Reviewer and appeal on point of law (Sections 20, 22, 30) Not in List A or B NO – unless appears as Other Relevant Information | YES – if Chief Constable thinks relevant and ought to be disclosed (Section 14); applicant can ask for review: first review is by Chief Constable (reviews if still thinks relevant and ought to be disclosed); then can apply for review of that decision by Independent Reviewer, with right of appeal to sheriff of Independent Reviewer’s decision on point of law only (Sections 23,24, 30) |
Conviction in adult court for under 18 | Not Applicable except for certain serious offences – all offences spent immediately under Schedule 5 para 2, Disclosure (Sc) Act 2020 except where a conviction resulted in a custodial sentence of more than 4 years, or for a sexual offence a custodial sentence of more than one year
YES – included without discretion for unspent convictions (Section 8) | List A YES – Included if Disclosure Scotland think ought to be and if relevant (Sections 9, 13, Schedule 1); have right to independent reviewer process and appeal on point of law (Sections 20, 22, 30) List B NO – If admonished or discharged, or happened more than 5 ½ years ago YES – if not been admonished or discharged and happened within the last 5 ½ years and Disclosure Scotland assess it ought to be disclosed and if relevant (Sections 9, 13, Schedule 2); have right to apply to Independent Reviewer and appeal on point of law (Sections 20, 22, 30) Not in List A or B NO – unless appears as Other Relevant Information | YES – if Chief Constable thinks relevant and ought to be disclosed (Section 14); applicant can ask for review: first review is by Chief Constable (reviews if still thinks relevant and ought to be disclosed); then can apply for review of that decision by independent reviewer, with right of appeal to sheriff of Independent Reviewer’s decision on point of law (Sections 23,24, 30) |
DISCLAIMER: Please note this summary is intended for your assistance, but is neither exhaustive nor definitive. It is not as an authoritative statement and interpretation of the law. If you have any questions or would like further information or legal advice, please call 0808 129 0522 or email info@clanchildlaw.org.
