In June 2014, the United Kingdom Supreme Court found that
the system of higher-level disclosures as it operated in England and Wales breached
a person’s article 8 rights under the European Convention on Human Rights.
Although the court fully accepted the need for additional scrutiny of a
person’s background if that persons wants to work with vulnerable groups or in
other sensitive roles, it considered that the automatic indiscriminate
requirement for disclosure of all spent convictions was not proportionate
because no assessment was undertaken of the relevance of the information to the
need for the disclosure.
Although this decision related to the law of England and
wales, Scotland has now considered its relevance to the higher-level of
disclosure they operate. Informed by developing thinking and subsequent case
law in England, Wales and Northern Ireland on how the competing rights and interests
should be struck it was concluded that reforms had to be made to the Scottish
The ‘higher-level disclosure’ describes the overall system
that allows for additional scrutiny of an individual’s criminal convictions.
Among other purposes, it is used when someone wants to work with vulnerable
groups such as in a nursery, as a medical professional, in a school or when
somebody wants to work in a sensitive area such as offering financial advice.
There are two aspects to this system. Firstly, it operates
through individuals disclosing information and secondly, Disclosure Scotland
issuing a certificate containing conviction information that is held on central
police records. Under this system of additional security, the information that
must be disclosed by the individual and Disclosure Scotland includes
convictions that have become spent under the Rehabilitation of Offenders Act
1974. Such information would not ordinarily be disclosed to an employer as the
law currently stands it comes under the higher level of disclosure.
The Order deals with one aspect of the reformed system – the
responsibilities of individuals to self-disclosure spent convictions – and it
adjusts the existing law that governs those responsibilities.
It is thought that the proposed changes to the disclosure
system in Scotland will comply with the European Convention on Human Rights
whilst ensuring that vulnerable people and the wider general public are
Not all spent convictions will routinely disclosed under the system. Spent convictions for offences that are sufficiently serious, recent or relevant will continue to be required to be disclosed by the individual in the circumstances that are set out in the 2013 Order
The proposed amendments to the 2013 Order set out two lists of offences. One contains the most serious offences – including serious violent and sexual offences. This will continue to be disclosed indefinitely, even when spent, in relation to the types of work that are specified in the 2013 Order. The second list contains offences in respect of which a new set of rules, to be set out in the order, will determine whether they are to be disclosed. Those rules will take in to account of the period of time that has elapsed since conviction, the age of the offender on the date of conviction and the sentence imposed.
The Order also adjusts rehabilitation legislation to take account of the amended system to be operated by Disclosure Scotland, in particular by ensuring that an individual need not disclose offences for which they may apply to a Sheriff for an order to have them removed from a certificate, until that application to the Sheriff is determined.
The controversy surrounding the amendment is not really concerning the changes proposed but rather the time frame that is being operated. The Scottish Assembly is looking to implement the new Order in a 2 day time frame, Opposition thinks that this time frame is too short to be properly debated.
The only impact for employers which is envisaged in the short term is the delay to the issuing of the enhanced certificates. Currently Disclosure Scotland issues 1000 certificates every day. The assembly has enforced a 3 day suspension of these certificates to update its process to comply with the amendments.
Pam Loch, Managing Director of niche employment law practice, Loch Employment Law, HR Advise Me and Loch Training.