Our contribution to changes to the law on the disclosure of childhood offending

• We submitted Written evidence to the Scottish Parliament Education and Skills Committee on the Disclosure (Scotland) Bill.
• This followed our response to the Scottish Government’s Public Consultation on the Protection of Vulnerable Groups and the Disclosure of Criminal Information, in which we called for the system to be simplified to make it accessible and understandable to children, and for childhood offending to be treated differently from adult offending in line with the approach taking by the children’s hearings system.
  
  
• As the Management of Offenders (Scotland) Act 2019 was going through the Scottish Parliament, we submitted Written evidence to the Scottish Parliament Justice Committee in which we welcomed changing the Rehabilitation of Offenders Act 1974 to reduce to zero the length of time before a disposal from a Children’s Hearings of a referral on offence grounds is treated as a spent conviction. 
  
  
• When the Age of Criminal Responsibility (Scotland) Act 2019, which will raise the age of responsibility from 8 to 12, was going through the Scottish Parliament, we gave written evidence to the Equalities and Human Rights Committee. 

• In response to the judgment in P(AP) v the Scottish Ministers [2017] CSOH 33, which found automatic disclosure of criminal conviction to breach article 8 rights, the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018 was approved by the Scottish Parliament. Clan Childlaw engaged in the consultation process and submitted its consultation response on the proposed draft Order, concluding that it did go far enough to meet the requirements of the judgment or article 8 ECHR. 

Engaging with the Courts and legal sector

• In 2018 we intervened in writing in Supreme Court cases involving the disclosure systems in England and Wales and Northern Ireland (the three cases, heard together, were In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland), R (on the application of P, G and W) v Secretary of State for the Home Department and another, and R (on the application of P) v Secretary of State for the Home Department and others [2019] UKSC 3). Our public interest intervention set out the system of disclosure of childhood offending in Scotland (read it here). The Supreme Court’s judgment of 30 January 2019 found youth reprimands and warnings (now youth cautions) should not be disclosed in criminal record checks, recognising that these are diversionary measures intended for the rehabilitation of children and should not be used to stigmatise or criminalise them in later life. The judgment is relevant to the whole of the UK and it an important recognition of children’s rights. The law has since been changed in England and Wales so that childhood cautions will no longer be automatically disclosed. 
  
  
• In 2017 we intervened in a Supreme Court case, AB v Her Majesty’s Advocate [2017] UKSC 25, relating to the availability of a statutory defence where the person had previously been charged with a relevant sexual offence, even if that charge was during childhood. Read our case summary, our Intervention , and our note on the judgment
  
  
• Our Principal Solicitor Alison Reid wrote about people being ‘Caught in the past’ following childhood offending in the Journal of the Law Society of Scotland in 2017. The article looked at two cases impacting on the effect of childhood offending behaviour later in life, P(AP) v the Scottish Ministers [2017] CSOH 33 and AB v Her Majesty’s Advocate [2017] UKSC 25.

Engaging with the children’s sector

• We worked with partners in our Strategic Litigation Group working group on disclosure of criminal records.
  
  
• We have run workshops for professionals working with children and young people on the disclosure of criminal records.