Disclosure of Spent Convictions

19 February 2018

You may be aware that on 17th February 2018 there were some changes made to the law in relation to the disclosure of spent convictions.

Below explains the changes:

  1. The Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 allow Disclosure Scotland to issue standard and enhanced disclosures, and PVG scheme records (collectively referred to as ‘higher level disclosures’).

  2. The Police Act 1997 and the PVG (Scotland) Act 2007 Remedial Order 2018: http://www.legislation.gov.uk/ssi/2018/52/contents/made amends both Acts to allow the recipient of a higher level disclosure to make an application to a sheriff for removal of a conviction for an offence in the list of ‘offences which must be disclosed unless a sheriff orders otherwise’. The sheriff can order removal of the conviction information from the disclosure if they consider it is not relevant.

  3. The application is available once certain criteria are met, namely:
    The conviction is spent, and either:
    (a) where the person was aged under the age of 18 at the date of conviction, 7 years and 6 months have passed since the date of conviction; or
    (b) where the person was aged 18 or over at the date of conviction, 15 years have passed since the date of conviction.

  4. Making an application to a sheriff, and what happens to the countersignatory’s copy of the higher level disclosure are similar to the arrangements for the Rules List:
    • Where an application can be made to a sheriff for removal of conviction information, the applicant’s higher level disclosure will be issued, but the counter signatory’s copy will be held back to allow the applicant to decide if they want to pursue their right to apply to the sheriff.
    • If the applicant intends to apply to the sheriff, they must inform Disclosure Scotland of that intention within 10 working days of the date of issue of their disclosure certificate. The applicant can tell Disclosure Scotland that they do not wish to pursue an application to the sheriff and they want the countersignatory’s certificate issued. The applicant also has the option of doing nothing and after 10 working days from the date on the disclosure a copy will be automatically sent to their counter signatory.
    • The applicant has to lodge the application at a sheriff court within 3 months from the date Disclosure Scotland was notified of the intention to make it.
    • Once an applicant informs Disclosure Scotland of their intention to apply to a sheriff, Disclosure Scotland cannot send out the counter signatory’s copy of the disclosure certificate until the sheriff has reached a decision.
    • Applicants can change their mind and withdraw their notice of intention to appeal. If this is done within 10 working days of the date of issue of their certificate, Disclosure Scotland can then still send out the countersignatory’s copy of the certificate.
    • If the applicant does not make their application to the sheriff within 3 months (or abandons the application to the sheriff at a later date), the disclosure application is closed and no higher level disclosure will be issued to the counter signatory. If a disclosure is still required the applicant will need to make another application.

If you have question about the change please contact Disclosure Scotland’s Policy Team at DSPolicyTeam@disclosurescotland.gsi.gov.uk

 

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