Scotland: Criminal record disclosure reforms

20th October 2020

In late August 2020, a series of changes to the disclosure of previous convictions in Scotland were published. The reforms, which are brought in by the Management of Offenders (Scotland) Act 2019 (Part 2), will come into effect from 30th November. These reforms will reduce the length of time that many convictions are required to be disclosed, among other significant reforms.

For example, for those aged 18 or older at time of conviction, a six-month custodial sentence will now only be required to be disclosed for two-and-a-half years, rather than the current period of seven years. A fine will be considered ‘spent’ after 12 months, rather than the current period of five years. These are very welcome changes.

As well as this reducing the length of time until certain convictions become spent, the Act also introduces disclosure periods for custodial sentences between 30 and 48 months, after which they can become spent. Currently in Scotland, custodial sentences over 30 months cannot become spent convictions, meaning they always have to be disclosed. This reform is a pragmatic way to acknowledge when someone has moved on from offending behaviour and to reduce barriers to integration. Given the wide-reaching impacts of old convictions, the original policy memorandum of the new legislation notes that “reforms of the disclosure periods should be seen as a social justice issue as well as a criminal justice issue.”

Another major change is that the legislation will allow for sentences over 48 months (4 years) to potentially become spent. This will not happen automatically. It will allow a person to apply for a review of their conviction if a "relevant sentence" was imposed in respect of that conviction. The review will determine whether or not the conviction should become spent. However, these regulations have not yet been made. Separate guidance will be published by the Government when the review mechanism has been developed and the necessary regulations have been approved by the Scottish Parliament. This is the first attempt in the UK to handle more serious convictions on a case by case basis. The current requirement to disclose longer convictions indefinitely means they impact people for decades, regardless of how much they have moved on. More info here.

Estimates suggest that approximately a third of adult men in Scotland have a criminal record. Recognising the widespread impact this can have on someone’s professional and personal progression, and in line with the core principles of rehabilitation, these reforms were supported across Parliament when the Management of Offenders (Scotland) Act was passed in 2019. Debate around the Act also recognised the impact that broader access to spent convictions can have in creating safer communities, as a greater number of people have equitable access to engage fully in society.

However, the reforms will not change disclosure periods for more serious convictions which result in prison sentences above four years. These reforms bring Scotland in line with the broader disclosure system already in operation in English and Wales.

Details of the scheme were in announced in August, providing employers, insurance companies and other organisations with just over three months to understand and prepare for implementation of the reforms, as well as ensuring affected individuals are also aware of what the changes mean for them.

These changes come following changes to the disclosure regime in Scotland in July 2020. (This is akin to the Garda Vetting process in Ireland.) The Disclosures (Scotland) Bill decreases the number of disclosure levels and gives individuals greater control over sharing their information, balancing public protection with supporting people to move on from past offences. The changes came following a public consultation on the issue in 2018.

As of 20th October, the Department of Justice in Ireland is running an online consultation on spent convictions policy (closing 6th November). We are hopeful that given the evidence – both international and the lived experience of people in Ireland – Ireland will move in Scotland’s footsteps by adopting a more progressive spent convictions regime.

Part 2 of the Management of Offenders (Scotland) Act 2019 comes into force on 30 November.