Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015 (SSI 2015/330)
Our next item is evidence on subordinate legislation, as listed on the agenda. I welcome Diane Machin from Disclosure Scotland and Ailsa Heine from the Scottish Government. I invite Diane Machin to make brief opening remarks.
Good morning—only just. Thank you for inviting me and my colleague from the Scottish Government legal directorate to attend the meeting to answer the committee’s questions about the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2015, which amends the system of higher-level disclosures. With your agreement, I will provide you with a brief background to higher-level disclosures and why the amendments to the disclosure system were needed.
The phrase “higher-level disclosure” is used to describe the overall system that allows for additional scrutiny of a person’s criminal convictions. It includes the protection of vulnerable groups scheme—known as the PVG scheme—as well as enhanced disclosures and standard disclosures. Those measures are used when an individual wants to work with vulnerable groups, such as in a nursery, in the medical profession or in a school, or to work in a sensitive area, such as in providing financial advice. The changes that were made on 10 September affect only the regime of higher-level disclosure and have no impact on basic disclosures.
In June 2014, the UK Supreme Court found that the system of higher-level disclosures as it operated in England and Wales breached a person’s rights under article 8 of the European convention on human rights. The court fully accepted the need for additional scrutiny of a person’s background if they wanted to work with vulnerable groups or in other sensitive roles, but it held that the automatic indiscriminate requirement to disclose all spent convictions was not proportionate, as no assessment of the relevance of the information to the need for the disclosure was undertaken. The court suggested that a proportionate system of disclosure should take into account factors such as the age of the conviction, the nature of the offence, the age of the offender and the relevance of the conviction to the role that was sought.
12:00The amended system of higher-level disclosure takes account of those factors. It restricts the requirement for disclosure so that not all spent convictions require to be routinely disclosed. Under the amended system, certain spent convictions become protected convictions. Protected convictions, along with spent cautions, are not required to be disclosed by an individual, nor are they disclosed by the state on a higher-level certificate. Such convictions are deemed to be of a minor nature for which disclosure once the conviction is spent would be disproportionate.
To strike the right balance between protecting privacy and safeguarding, the remedial order contains a list of prescribed offences that are deemed to be so serious that they must always be disclosed, even when spent. Murder is not included on that list because a conviction for murder can never become spent and so will always be subject to disclosure.
The order specifies a further list of convictions that are eligible for disclosure on higher-level disclosures if prescribed rules are satisfied. The rules cover pertinent factors that determine whether disclosure should take place, such as the length of time since conviction, the age of the offender at the time of conviction and the sentence received. Those rules are clear cut and set out in statute. There is no discretion for officials.
Ministers intend the focus to remain on enabling a system of robust disclosure checking for roles that involve access to vulnerable groups. They recognise that the safeguarding purpose must be balanced with the appropriate protection of rights to privacy and with permitting ex-offenders to move on from a past criminal background. The amended system of higher-level disclosure that the remedial order brought into effect strikes that balance. We are happy to answer any questions that the committee has.
I was surprised to read that it is not possible for an individual to obtain their own disclosure certificate in advance of applying for employment or volunteering. Does anything in the order make that easier? It might discourage many people from volunteering if they thought that people would know about convictions from 10 or 20 years ago. Does anything enable an individual to obtain their own disclosure information?
The PVG scheme, under which disclosures are sought, is a scheme for employers to seek disclosures. No rules in that scheme allow an individual to apply for their own disclosure. If they did that, we would be disclosing to them information that they already knew.
However, given the changes, people might not know their position. A conviction might be from so long ago that they are eligible to apply to do volunteering work. It could be embarrassing for an individual that the only way in which they can find out whether they have a clean disclosure is for an employer to find out for them. It might be helpful for an individual to be able to apply. Has that been discussed in the past or might you consider adding it to the legislation?
Perhaps I can add to what has been said to explain the situation. There are two systems of disclosure. The first is part of the Rehabilitation of Offenders Act 1974, which is about self-disclosure and requires people to disclose their unspent convictions and, in certain circumstances, their spent convictions. Below that sits the disclosure legislation—the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007—which was put in place to verify the information that people give under the 1974 act.
Under the 1974 act, a person is expected to know what convictions they have and to disclose those to an employer. That has been slightly modified by the order, in that people are not required to disclose an offence that is on the rules list, which will be disclosed only for 15 years, until the disclosure is given to the employer. For all other convictions, the 1974 act requires people to self-disclose and to know their own convictions.
As Diane Machin said, the system is not about telling people what their convictions are—they have to know that already—but about giving employers the opportunity to verify information and to seek a disclosure of that information from an official source. The process is not about helping people to access their own information.
I understand all that, but perhaps you do not understand the point that I am making. If I were an ex-criminal, I might be too embarrassed to apply for volunteering or other jobs, because that would mean that other people might know something about me that I did not want them to know. It is difficult to get volunteers across Scotland. I am looking at this from the individual’s point of view.
We have a paper from an organisation called Unlock, which represents people with convictions. I was slightly surprised that the periods in England and Wales for a conviction to become protected are 11 years for adults and five and a half years for people under 18. I understand that in Scotland, instead of 11 years, the period will be 15 years for adults and, instead of five and a half years for under-18s, it will be seven and a half years. Unlock says that it is unclear how those disclosure periods have been arrived at. Will you explain or clarify that?
The disclosure periods of 15 and seven and a half years were derived within the context of the current rehabilitation periods under the 1974 act and the period for which Police Scotland retains criminal history information on the criminal history system. The periods aim to strike an appropriate balance between the rights of individuals and the rights of the people who those individuals seek to work with.
Under the 1974 act, the longest period that must pass before a person can become rehabilitated is 10 years. There is therefore no point in selecting a disclosure period of 10 years or less, because that would render the provision that relates to spent convictions for offences that are on the rules list meaningless. We had to select a period that was more than 10 years.
We then looked at the criminal history system weeding rules. Police Scotland applies a 30-70 rule, which requires a conviction to have been on a person’s criminal record for 30 years and requires the person to have attained 70 years of age before the conviction will be weeded from their criminal record. In recognising that disclosure under the Protection of Vulnerable Groups (Scotland) Act 2007 and the Police Act 1997 is for the more limited purpose of employment, we opted for disclosure periods of 15 years for adults and seven and a half years for young people.
I understand that. The only thing that I do not understand is why there is a difference between Scotland and England.
We recognise that we have opted for a different period from that specified in England and Wales, but there are a number of differences between the scheme in Scotland and the one in England and Wales. In particular, we in Scotland have taken the approach that, when someone has multiple convictions on their record, each conviction will be considered on its own merits, and the fact that a person has a conviction does not attach to other convictions. In England and Wales, if a person has more than one conviction, everything is disclosed, regardless of how old those convictions are.
Likewise, in England and Wales, if a person has any conviction that attracts a prison sentence, everything on the record will be disclosed. In Scotland, we have not adopted that approach. If someone has a conviction that is more than 15 years old, it is considered to be spent, even if it attracted a period of imprisonment—it would have to have been a short period—and it will not be disclosed if it is on the rules list. There are other differences between Scotland and England and Wales.
As well as the difference in the disclosure periods, there is a difference between the rehabilitation periods in Scotland and those in England and Wales. It is not the case that, in England and Wales, the rehabilitation period is 10 years and only one and a half years have been added on, as the maximum rehabilitation period there is less than 10 years. Those differences derive from policy choices made by the UK Government and the Scottish Government about what they think is an appropriate rehabilitation period. In England, a conviction is disclosed for some time after it is spent, because of the disclosure period of 11 years.
Good afternoon. I am not sure whether this is relevant to the legal aspects of the order, but disclosure depends on databases, and I could not find any mention of how we track—and can therefore disclose—international convictions of people who have come to live here. How are those captured? I know that the suggestion should be that the convictions are on the database, but I do not find anything in the remedial order that mentions how we cope with international convictions.
The primary sources of information for criminal record checks are the Scottish criminal history system and the police national computer, which covers the whole UK. Disclosure Scotland provides disclosures for people with an address in Scotland. We can access information on overseas convictions via police forces.
There are ways of accessing information about convictions abroad. Sometimes that information is added to the police databases that are used—particularly the police national computer. Regulations specify which databases Disclosure Scotland can use to access that information.
Some foreign convictions are added to those databases; otherwise, there are possibilities to make requests to other countries. In general, the information is based on those databases.
And we hope that they are right.
I presume that there are differences between a request that needs to be made to another European Union country and a request to a country that is outwith the EU.
I am aware of such arrangements within the EU.
If a national of another European Union country came to Scotland to live and work, would the disclosure process be relatively straightforward?
The central authority for the EU system is the police authority in England and Wales, so Disclosure Scotland would have to liaise with it.
There is a process for people from the EU.
Yes—there is a process.
If somebody came from outwith the EU, a direct request would have to be made to the country that they came from.
I am not sure. In those circumstances, we would not make a direct request for the disclosure. The way in which the legislation is set up means that we can access only the information—
Who asks for the information, then?
Nobody asks for foreign conviction information.
Let me just go through this. If somebody who is resident in Scotland but who previously resided in a country that is outwith the EU applies for a job that requires a disclosure process to be undertaken, how do you get the information? Are you saying that you do not get the information?
Disclosure Scotland does not request that information. It is not part of the information that is required to be on the certificate.
I want to be absolutely clear that we are not making a mistake here. If somebody comes from a non-EU country—perhaps a country in eastern Europe, the United States, Canada, Australia or New Zealand—and they live and work here and apply for a job that falls under one of the categories where, for a Scotland-born resident, an employer would ask for a disclosure check, does that person not get the job or is there no check?
The employer can request a check from Disclosure Scotland. The only information that can be provided on the certificate, under the legislation, is information that appears on the UK databases.
I understand that. I am trying to ascertain whether any other action is taken to figure out whether an individual is a risk to members of the community in Scotland.
12:15
That would be a matter for employers to consider.
How would an employer find out whether somebody from Belarus had a conviction for serious sexual assault?
If the employer is aware that a person was resident in another country for a long period, it can request police disclosure from that country.
How would an employer be aware of that?
Hold on a second.
Under the 1974 act, the person is obliged to disclose their conviction.
We are clear that there is no official process by which checks would be made for someone from outwith the EU in the way that they are for someone from within the EU and in particular for someone from the UK. It would be up to employers to write to—well, who would they write to in Belarus?
That would be for the applicant to say. The employer can ask the job applicant to provide a disclosure from the police authority, or however it is done in the country involved.
The employer would ask the applicant to provide a similar sort of disclosure statement from their country.
It could do. The information is not accessible—
I understand that it is not accessible; I am just seeking clarification. If the employer did that and the individual did not supply the disclosure, or if the employer did not do that, would the individual be barred from employment or would they be employed anyway? What does the law say—could an employer decide not to employ someone on the basis that it did not have the information?
That would be up to the employer.
I am asking what the legal position is. What is the legal position if somebody fails to provide the information that an employer requests about whether they have relevant convictions that should be disclosed from a country outside the EU?
Under the 1974 act, the person is required to disclose that information.
I understand that.
If the individual fails to do that and the employer employs them, the employer could have redress against them if it became aware of the conviction at a later date. [Interruption.]
I will bring in Chic Brodie in a second.
We are not talking about upsetting the employer.
No.
Surely the issue is the safety of the community that the person works with, whether that is children, vulnerable adults or whoever it happens to be. That is what we are talking about.
Let us say that I have come to this country from Canada and that, when I am asked to fill in the form, I say nothing on it and sign it. Who is liable if I go on to carry out an offence against a child, a vulnerable adult or someone else in the employer’s premises? Is the employer liable? Has the employer done its job by accepting the form? What is the position?
Under the 1974 act, the person remains liable for not having disclosed their offences to the employer. That is a criminal offence, so they would be dealt with under criminal law.
I understand that.
You just asked the question that I wanted to ask. There will be offenders from elsewhere—in some cases they will be serious offenders—who will not meet the requirements that are stipulated. It is very unlikely that they will tell the employer about their conviction. The relevant question is whether the employer will have liability under what you are trying to do with the remedial order. Surely they will.
The remedial order will not affect the existing position on foreign convictions, which has existed since the Police Act 1997 was passed.
Do you think that it should?
In practical terms would be difficult for Disclosure Scotland or whatever body to access conviction information for the whole world. There are reciprocal provisions within the EU so that convictions can be added to databases. Also, if people are, similarly to how the PVG scheme works in Scotland, barred from working with children in other countries, Disclosure Scotland is able to make requests for that information for its consideration. Systems are evolving in the EU to try that.
We will go round and round if we go on this way. The convener made the point that when an EU country has no records, we face circumstances in which someone might not meet their disclosure requirements, and so we are vulnerable, are we not?
We are to an extent vulnerable in that way. That is an existing problem.
Is it not a change?
It is not a change.
We accept that, and I am sure that it is something that the committee will discuss later.
I want to go back to the order. Am I correct in understanding that an individual can, prior to the 15-year period elapsing, apply to a sheriff for dispensation—if that is the right word—to have conviction information removed, so that they do not have to disclose it?
That is correct for an offence that is on the list of offences that are disclosed subject to rules.
I am talking about schedule 8B.
Yes.
When can the offender apply before the 15 years are up? Can they do so at any time or just close to the 15 years? Can they do it if it is only seven years since the offence—or 10 years or 12 years or 14.5 years? Is there a point before which they cannot apply to have the conviction removed?
No.
The offender can apply at any time.
If someone receives a certificate on which there is a spent conviction for an offence on the list in schedule 8B, they can apply to the sheriff to have that removed, regardless of whether it is 11 or 14 years old.
So there is no restriction on that, and the offender can apply to a sheriff at any point within that 15-year period.
That is correct, but they must be able to show a good reason why that information should be removed.
Okay. I understand that. How did you come up with the lists in schedules 8A and 8B? Where and how is the line drawn? I looked in the notes for examples of serious offences that will always be disclosed: they include rape. Schedule 8A’s list includes the statutory offence of rape, assault with intent to rape or ravish, and bestiality. What about other serious sexual assaults and offences? I am asking about sexual offences as an example. Where is the line drawn that puts one offence in schedule 8A and another in schedule 8B?
Almost all sexual offences are covered by schedule 8A.
Almost all?
Yes, because as well as the common-law offences that are specified at the beginning of schedule 8A—assaults with intent to rape or ravish and so on—there are also statutory offences, which are covered in paragraph 37 of the schedule. I do not know whether you have the order in front of you, but in schedule 8A, under the heading of “Sexual Offences”, it says:
“A sexual offence within the meaning given by section 210A(10) of the Criminal Procedure (Scotland) Act 1995”,
which is an extensive list of sexual offences. All of those specified sexual offences are covered by paragraph 37 of schedule 8A, with the exception of sexual offences that involve two older children, which we have included in the rules list to allow for scenarios in which there may, for example, be two consenting 17-year-olds.
I understand that provision, which seems to be reasonable. However, I want to understand the difference between the extensive list that you have mentioned, which would fall under schedule 8A, and the list in schedule 8B, which includes, for example, at point 18, the offence of “public indecency”. Public indecency covers quite a wide spectrum of activity.
Yes. In considering the offence lists, we looked at a range of criteria that would determine what would go on which list. We considered, for example, whether an offence resulted in serious harm, or represented a significant breach of trust, or dishonesty.
Many offences cover a broad spectrum of behaviour; public indecency is one. We have taken the view that public indecency offences tend predominantly to be offences at the lower end of the spectrum of seriousness, and that more serious sexual offences tend to be covered under charges of lewd and libidinous practices, which are covered in schedule 8A.
We had to draw a line somewhere. In doing so, we have recognised that we have to take account of the sentence that was imposed by the court when it convicted the person. For any of the offences on either list, the severity of the sentence is a reflection of the seriousness of the offence. If the nature of the specific act for which a person had been convicted of a public indecency offence was very serious, the person would have received a serious sentence that would remove them from the realm of the conviction’s ever becoming spent. Even though the offence of public indecency is on the list in schedule 8B, a conviction for that might always be disclosed if the severity of the sentence determines that that should be the case.
Would the same argument apply to other offences in schedule 8B—things such as fraud and embezzlement?
Yes.
Would the same logic apply if the job that was being applied for was in the financial sector?
Yes. The offence of extortion is on schedule 8A and fraud is on schedule 8B. Again, that was because fraud can cover an extremely wide range of offending behaviour from very small to massive frauds. There is an example in the media today of somebody who was convicted of an £8 million fraud for which a sentence of four and a half years was imposed. That conviction will always be disclosed because the sentence determines that it will never be spent.
As nobody has any other questions, I thank you for attending this morning. I am sure that members will have a number of issues that they want to raise. Given the evidence that we have just received, do members wish to have a further discussion or to write to the Scottish Government with questions?
My understanding is that there will be another opportunity to look at the issue in January.
Yes. We will be dealing with the order in the normal fashion, probably early in the new year. I am asking members, given what we have heard today and what we have received in writing, whether we wish to write to the Scottish Government or take any other action that we feel is appropriate to find out further information.
There was the concern that we discussed regarding international convictions. I think that it might be as well to highlight to the Government the fact that we questioned the circumstances. It may have to go back to Police Scotland or what have you, but I think that it is worth asking the question.
I agree with Chic.
I appreciate that the legislation is for employers who are deciding whom to recruit. However, as we have the opportunity, can we ask the Government whether any consideration has been given to volunteers and employees having access to what is on their records?
Okay. I suggest that the clerks draft a letter to the Scottish Government and bring it to the committee for us to discuss in private, if members agree to that. We can decide whether to amend the letter and then send it. Do members agree?
Members indicated agreement.
Once again, I thank the witnesses for coming this morning.