POLICY NOTE THE POLICE ACT 1997 AND THE PROTECTION OF VULNERABLE GROUPS (Scotland) ACT 2007 REMEDIAL ORDER 2015 SSI 2015/??? Introduction 1. The Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015 (“the 2015 Order”) amends Part V of the Police Act 1997 (“the 1997 Act”) and Part 2 of the Protection of Vulnerable Groups (Scotland) Act 2007 (“the 2007 Act”) and makes transitional provisions. It also makes a consequential amendment to the Protection of Vulnerable Groups (Scotland) Act 2007 (Fees for Scheme Membership and Disclosure Requests) Regulations 2010 (“the 2010 Regulations”).
Background 2. On 18 June 2014, in the case R (on the application of T and another) (FC) (Respondents) v Secretary of State for the Home Department and another (Appellants)  UKSC 35, the United Kingdom Supreme Court (“UKSC”) made a declaration of incompatibility under section 4 of the Human Rights Act 1998 that the provisions of sections 113A and 113B of the Police Act 1997 (as applicable in England and Wales) were incompatible with article 8 (the right to respect for private and family life) of the European Convention on Human Rights (“the Convention”) because the requirements in those sections in relation to blanket disclosure of all spent convictions were not in accordance with the law. In Scotland, similar provisions of the 1997 Act apply to the issue of disclosure certificates. These functions under the 1997 Act and related legislation are devolved to Scottish Ministers and are exercised through Disclosure Scotland.
3. In light of the UKSC ruling, the Scottish Government assessed the operation of the 1997 Act in Scotland and concluded that changes should be made to the 1997 Act to ensure that it strikes a fair balance between an individual’s right to respect for their private life and the interests of public protection. In addition, the Scottish Government concluded that the 2007 Act (an Act of the Scottish Parliament which established the Protecting Vulnerable Groups Scheme – “PVG Scheme”) should also be amended.
The 2015 Order should be considered alongside the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Amendment Order 2015 which provides for associated changes to the system of self-disclosure of previous criminal convictions by an individual under the Rehabilitation of Offenders Act 1974 (“the 1974 Act”) and the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013.
Parliamentary Procedure 5. As the issue to be addressed relates to Convention rights, the Scottish Ministers are using a remedial order made under section 12(1) and (3) of the Convention Rights (Compliance) (Scotland) Act 2001 (“the 2001 Act”). In this case, the 2015 Order is subject to the urgent procedure under section 14 of the 2001 Act. Section 14(1) confers a power on the Scottish Ministers, for reasons of urgency, to make a remedial order without following the procedure specified in section 13 of the 2001 Act. Annex A to this Policy Note provides the Statement of Reasons which was laid before the Scottish Parliament, in accordance with section 14(2)(b) of the 2001 Act.
6. While the 2015 Order came into force on 10 September 2015, section 14(2) of the 2001 Act requires that Scottish Ministers must, after making the 2015 Order, give public notice of it, and invite observations to be made in writing within 60 days of the 2015 Order being made. Once the 60 day period has expired, the Scottish Ministers will lay before Parliament a statement summarising all the observations and what, if any, modifications they consider appropriate to make to the 2015 Order.
7. Section 14(5) of the 2001 Act provides that if the 2015 Order is to be modified, Scottish Ministers must make and lay before the Scottish Parliament a further remedial order incorporating the relevant changes. In accordance with section 14(6), either the initial version of the remedial order (the 2015 Order) or the revised version of the remedial order must be approved within 120 sitting days (commencing on 10 September 2015), otherwise the remedial order will cease to have effect.
8. In its decision the UKSC accepted that a conviction or caution would usually become part of someone’s private life once it became spent (as set out in the 1974 Act). The UKSC accepted that information about unspent convictions could continue to be disclosed as the disclosure of those did not interfere with article 8 rights since they were not yet part of someone’s private life. Article 8 of the Convention sets out the right to respect for private and family life –
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
9. The UKSC ruled that the requirements in sections 113A and 113B of the 1997 Act on the Disclosure and Barring Service (“DBS”) to operate by means of blanket disclosure of information about spent convictions and spent cautions held on the Police National Computer (“PNC”) were not in accordance with the law as the 1997 Act had failed to make any distinction on the basis of any or all of the following criteria in in its operation in England and Wales:
• the nature of the offence
• the disposal in the case
• the time that has elapsed since the offence took place
• the relevance of the disclosure information to the employment sought.
10. The UKSC also referred to other factors which could be taken into account such as the circumstances in which the person committed an offence, the age when they committed an offence and their perpetration of further offences (Lord Wilson in paragraph 41 of the decision). The 2015 Order takes into account some of these factors in the reforms which it will introduce to the disclosure regime in Scotland. Introduction of these reforms will, on a casebycase basis, result in changes to the content of a standard or an enhanced disclosure issued under the 1997 Act, and a PVG scheme record issued under the 2007 Act. In other words, there is no longer blanket disclosure of all spent convictions with the result that some spent conviction information which would have been disclosed, had this 2015 Order not been made, will no longer be disclosed.
11. In addition, the 2015 Order changes the content of the short scheme record under section 53 of the 2007 Act, and the tests to be applied by the chief officer of a relevant police force when considering a request from the Scottish Ministers for other relevant information under either section 113B(4) of the 1997 Act or section 49(1)(c) of the 2007 Act.
12. Lastly, the 2015 Order amends the 1997 and 2007 Acts to require Scottish Ministers, in certain circumstances, to provide the applicant with the opportunity to see their disclosure before it is issued to a third party. In cases where that opportunity is offered, the applicant will be able to intimate an intention to Scottish Ministers to make an application to a sheriff for an order for the issue of a new disclosure certificate (the 1997 Act), or an order for the removal of vetting information from their PVG scheme record (the 2007 Act) if the sheriff considers that the details are not relevant to the purpose for which the disclosure was requested. Where such intimation of an application to the sheriff is received by Scottish Ministers, the third party will not see the copy of the disclosure until the court application appeal is finally determined.
Summary of Order 13. The 2015 Order:
provides that certain spent convictions will continue always to be disclosed due to the serious nature of the offence - article 3(2)(c)(ii) inserts a new paragraph (a) in the definition of “relevant matter” in section 113A(6) of the 1997 Act; this definition relies on the concept of a protected conviction which is defined in new section 126ZA of the 1997 Act (inserted by article 3(7) of the 2015 Order); section 126ZA makes reference to lists of offences contained in new schedules 8A and 8B of the 1997 Act (inserted by article 3(8) of the 2015 Order); new schedule 8A lists serious offences for which spent convictions will always be disclosed;
sets out rules to be applied to certain spent convictions to determine the content of standard and enhanced disclosures under the 1997 Act and the PVG scheme record disclosure under the 2007 Act (these disclosures are collectively referred to as ‘higher level disclosures’). These rules will mean that certain spent convictions (within the meaning given in the 1974 Act) will no longer be disclosed - new schedule 8B lists offences for which spent convictions will be disclosed subject to the application of rules relating to the age of the person at the time of the conviction and the length of time since the date of conviction as well as the disposal which was given. These rules are set out in new section 126ZA(2);
provides that certain spent convictions will no longer be disclosed routinely due to the minor nature of the offence - new section 126ZA(1) provides that a spent conviction is a protected conviction if it is listed in neither new schedule 8A nor 8B of the 1997 and such convictions will therefore no longer fall routinely within the definition of “relevant matter”;
provides that all spent cautions (within the meaning given in schedule 3 of the 1974 Act) will never be disclosed - article 3(2)(c)(ii) inserts a new paragraph (b) in the definition of “relevant matter” in section 113A(6) of the 1997 Act which means that only unspent cautions fall within the meaning of “relevant matter” and can be disclosed;
provides individuals who have a spent conviction for certain offences which have not yet reached the point at which the rules would prevent disclosure of the conviction (which are therefore not yet protected convictions) with the possibility to indicate to Scottish Ministers that they intend to make an application to a sheriff for an order for a new disclosure certificate (the 1997 Act) or the removal of vetting information from a PVG scheme record (the 2007 Act) – article 3(4) of the 2015 Order inserts new section 116ZB into the 1997 Act which sets out the requirements for making such an application and sets out what the sheriff can order in such an application; article 4(5) inserts a new section 52A into the 2007 Act to make similar provision in relation to PVG scheme records;
in those cases where the intention to make an application to the sheriff is indicated, this prevents the issue of a higherlevel disclosure to the person who countersigned the disclosure application or request until that application to the sheriff is finally determined - article 3(4) of the 2015 Order inserts new section 116ZA which sets out when a copy of a higher level disclosure can be issued to the person who countersigned the application; article 4(5) inserts a new section 52 into the 2007 Act to make similar provision in relation to PVG scheme records;
amends the test in section 113B(4) of the 1997 Act and section 49(1)(c) of the 2007 Act for the provision of other relevant information by the chief officer of a relevant police force in connection with higherlevel disclosure applications (article 3(3)(b)); article 4(3) makes a similar amendment to section 49(1)(c) of the 2007 Act; article 3(3(c)) of the 2015 Order also repeals section 113B(5) of the 1997 Act which allowed the police to provide other relevant information only to the person who countersigned the application and not the applicant;
revises the information that can be included on the short scheme record disclosure issued under section 53 of the 2007 Act so that a short scheme record can be issued only where the scheme member’s scheme record does not include vetting information (article 4(6)(c) and (d));
allows Scottish Ministers to treat certain short scheme record disclosure requests as if they were a disclosure request for a scheme record when the scheme member’s scheme record includes vetting information (article 4(6)(a) and (b) , and makes consequential amendments to the 2010 Regulations to deal with instances of this treatment (article 11) to provide for a waiver of the fee for a scheme record disclosure; and
sets out transitional provision for the 1997 Act, the 2007 Act and the Police Act (Criminal Records) (Registration) (Scotland) Regulations 2010 (articles 5 to 10).
Overview of amended disclosure regime 14. The decision about whether or not a spent conviction on an applicant’s criminal record should be disclosed will be determined by a two-stage process. The first stage of the process will be determined by the nature of the offence. Two lists of offences have been developed – a list of ‘offences which must always be disclosed’ and a list of ‘offences which are to be disclosed subject to rules’. These lists of offences are set out in article 3(8) of the 2015 Order as amendments to the 1997 Act. Two new schedules – schedules 8A and 8B – are added to the 1997 Act. New schedule 8A sets out the list of offences which must be disclosed. New schedule 8B sets out the list of offences which can be disclosed subject to the application of rules.
15. In developing these lists of offences careful consideration was given to the attributes required for roles requiring higher level disclosure. Such roles place the individuals filling them in a position of power and responsibility. A conviction for a criminal offence that:
resulted in serious harm to a person;
represented a significant breach of trust and/or responsibility;
displayed a degree of recklessness that resulted in harm or a substantial risk of harm
is evidence that a person’s conduct has caused harm to an individual and/or is evidence of misconduct in a position of authority. This evidence of past behaviour is important information for employers when determining whether an individual is suitable for a role for which higher level disclosure is applicable. The protection of vulnerable groups and of sensitive assets (where a higher level disclosure would be appropriate) must be balanced against any presumption that spent convictions ought not to be disclosed.
16. Where the serious nature of a person’s criminal conduct is such that the passage of time will not diminish the relevance of the information to a prospective employer or organisation, Disclosure Scotland will always disclose those spent convictions. These offences comprise the ‘Offences which must always be disclosed’ list (schedule 8A list). It should be noted that conviction of such an offence will often result in a disposal which means it would never become spent under the 1974 Act. These convictions would continue always to be disclosed as unspent convictions, as under the current legislation. For example, a conviction for murder requires the imposition of a mandatory life sentence and therefore a conviction for murder will never be spent. However, there may be instances where the specific circumstances of the conviction result in the imposition of a sentence which is capable of becoming spent under the 1974 Act. The inclusion of these offences on the ‘Offences which must always be disclosed’ list means that no matter how old the conviction is, it will always be disclosed on a higher level disclosure.
17. Where the nature of a person’s less serious criminal conduct is such that the passage of time, coupled with the age of the person at the date of conviction, means that certain convictions are no longer relevant to a prospective employer or organisation, Disclosure Scotland will not routinely disclose those convictions. These offences comprise the ‘Offences which are to be disclosed subject to rules’ list (schedule 8B list) in the 2015 Order.
18. Where the nature of a person’s criminal conduct is of a minor nature, these convictions cease to be relevant to a prospective employer or organisation once they are spent convictions under the 1974 Act, and Disclosure Scotland will not routinely disclose those spent convictions. These offences will be on neither the ‘Offences which must always be disclosed’ list(schedule 8A list) nor the ‘Offences which are to be disclosed subject to rules’ list (schedule 8B list).
19. The lists of offences in new schedules 8A and 8B will be applied to all types of higher level disclosure. This is because regulated work within the PVG Scheme and those posts which attract enhanced and standard disclosures under the 1997 Act require a degree of trust to be placed in the individual who will hold a role that places them in a position of power and responsibility. This sets these roles apart from other jobs but is the same across the types of higher level disclosure. Attempting to apply different lists to different types of disclosure would make the disclosure regime opaque to applicants and unwieldy to deliver. It could also give rise to suggestions that within types of disclosure the varied posts mean that different convictions would be of greater or lesser interest to the person making the request for disclosure and so different lists should be applied to different posts. This would introduce an undesirable element of discretion and significant scope for error in deciding which list to apply to each application.
20. The offence lists have been developed using multiple sources of information. The starting point was the Scottish Government published Recorded Crime in Scotland Classification of Crimes and Offences. Thereafter the Scottish Government considered all Scottish Criminal History System (“CHS”) and PNC recorded offences that have appeared on higher level disclosures since 2007. We considered the DBS list of offences that will never be filtered from a DBS certificate and Access Northern Ireland’s filtering list. Finally, we considered the detailed ISCJIS charge codes published on the Scottish Government website.
21. The offence lists will be made publicly available on the Disclosure Scotland website. Ministers will have a power to amend the list of offences by affirmative order (new section 126ZB of the 1997 Act as inserted by article 3(7)).
Rules for the ‘Offences which are to be disclosed subject to rules’ list 22. Having first determined that the conviction is spent and then that the offence is not included on the ‘Offences which must always be disclosed’ list, the rules will be applied and those convictions which are protected convictions within the meaning of new section 126ZA of the 1997 Act will not be disclosed. For each spent conviction on the applicant’s record the second stage of the process will involve consideration of the age of the conviction and the age of the person at the date of conviction, as well as the means of disposal of the conviction.
23. If the conviction is more than 15 years old at the date of disclosure and the person was aged 18 years or over at the date of the conviction, it will not be disclosed. If the person was under the age of 18 years at the date of conviction and the conviction is more than 7.5 years old at the date of disclosure, it will not be disclosed.
24. The periods of 15 and 7.5 years have been derived within the context of current rehabilitation periods under the 1974 Act and CHS retention periods operated by Police Scotland so as to strike a balance between the rights of the individual and the rights of those they are seeking to work with. Under the 1974 Act, the longest period that must elapse before a conviction resulting in any sentence of less than 30 months imprisonment can become spent is 10 years where the offender was aged 18 years or over at the date of conviction and 5 years where the offender was aged under 18 years at the date of conviction. Disclosure periods of 15 and 7.5 years for higher level disclosures avoid the possibility that a person applying for a basic level disclosure could have more information included on their certificate than a person applying for a higher level disclosure.
25. In addition, Police Scotland currently applies a 30/70 ‘weeding rule’ to certain conviction information stored on CHS. This means that the subject to whom the conviction applies has to be 70 years old and the information has to have been on record for at least 30 years (both conditions must be met) before CHS will perform an automated weed on the data. This rule is used if the conviction is on indictment or the disposal was a custodial sentence. A 15 year disclosure period represents half of the minimum period that the conviction will be held on CHS for any purpose and reflects that information is being used for the more limited purpose of disclosure to inform employment decisions.
26. It is reasonable to bind up the consideration of age of the person with the time elapsed since the conviction. There is precedent for this combined approach in the 1974 Act where different timeframes for convictions to be spent are specified depending on the age of the offender, and in the PVG scheme where the time limits in relation to applications for removal from the children’s or adults’ lists depend on the age of the individual when they were listed.
27. Any applicant whose record contains multiple spent convictions will have each conviction considered separately and the rules will be applied to each conviction as though it is the only conviction on the record. Disclosure Scotland will, however, continue to issue information about spent convictions for multiple offences which form part of one conviction due to the way in which the offences were charged and recorded.
28. Where a conviction for an offence on the ‘Offences which are to be disclosed subject to rules’ list is less than 15 years old (or 7.5 years as appropriate) then the disposal of the conviction will also be taken into account. Convictions that result in no punishment or intervention (other than the record of the matter) being imposed will not be disclosed, that is, any conviction for which the court imposes a sentence of admonition or absolute discharge (the meaning of which includes a discharge from a children’s hearing relating to an offence ground referral) will not be disclosed even where the conviction is less than 15 years old (or 7.5 years as appropriate). This means that the process takes into account cases where the individual circumstances are so unusual that at sentencing the judge chose to impose no punishment.
Cautions 29. In relation to any applicant whose record contains spent cautions within the meaning of schedule 3 of the 1974 Act these will never be disclosed. Only unspent cautions will fall within the definition of “relevant matter”. This means that the process takes into account cases where the circumstances of the offence did not lead to prosecution when the individual had received a caution. Cautions are not used in Scotland. They are used in England, Wales and Northern Ireland.
Application to sheriff for order to issue new certificate under the 1997 Act with conviction information excluded or for order to request removal of information from a scheme record under the 2007 Act 30. Where spent conviction information about an offence on the ‘Offences which are to be disclosed subject to rules’ list is not included in a standard or enhanced disclosure under the 1997 Act, the copy of the certificate will be issued to the countersignatory at the same time as it is sent to the applicant. But applicants for a standard or enhanced disclosure under the 1997 Act whose certificate contains spent conviction information about an offence on the ‘Offences which are to be disclosed subject to rules’ list will have a right to apply to the sheriff for a new certificate from which that that information is removed from their disclosure. Certificates containing such spent conviction information will be sent initially to the applicant only. The requirement to send the copy of the disclosure to the countersignatory will apply only if the applicant has not indicated an intention to the Scottish Ministers that they would like to make an application to the sheriff. The copy of any such certificate will be withheld for 10 working days before issue to the countersignatory.
31. Where a scheme member requests a disclosure under section 52 of the 2007 Act and their scheme record contains spent conviction information about an offence on the ‘Offences which are to be disclosed subject to rules’ list the scheme member will have a right to apply to the sheriff for removal of that information from their scheme record under new section 52A of the 2007 Act (inserted by article 4(5) of the 2015 Order).
32. When the certificate is issued or the copy of the scheme record is sent to the individual, they will be advised that if they intend to apply to the sheriff for removal of any spent conviction information on the certificate or scheme record they must notify Disclosure Scotland of their intention to do so within 10 working days of the date of issue of the certificate or scheme record. If no intimation of such an intent to make an application to the sheriff is received by Disclosure Scotland after 10 working days from the date on the certificate the countersignatory’s copy of the certificate will be issued or the scheme record will be disclosed.
33. An application to the sheriff must be made within 6 months of the notification to Disclosure Scotland of the intention to make such an application. The sheriff’s decision on an application is final. At conclusion of the appeal, Disclosure Scotland will implement the ruling. Irrespective of the sheriff’s decision, in all cases where an application has been made to the sheriff in relation to inclusion of a spent conviction on their certificate or scheme record, their application for a certificate, or for a scheme record will be revetted at the conclusion of the appeal. If the sheriff ordered certain spent convictions to be removed, these will be removed before the new certificate or the copy of the scheme record is issued. Lastly, the applicant will be given a further opportunity (again 10 working days) to consider their revised certificate or scheme record before a copy is sent to the countersignatory. A further application could be made to the sheriff if there is new conviction information on the certificate or scheme record about which they could make an application, for example if a conviction has become spent since the issue of the original certificate or scheme record.