Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Disclosure (Scotland) Act 2020

Type Act of the Scottish Parliament

Publication 2020-07-14

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — Disclosure of criminal history and other information

Level 1 disclosures

Level 1 disclosure

1

In this Part, a “Level 1 disclosure”, in relation to an individual, is a certificate—

(a) containing the prescribed details of every unspent conviction (including an unspent childhood conviction) of the individual that is recorded in central records or, if there are no such convictions, stating that fact, and

(b) if the individual is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, stating that fact.

Provision of Level 1 disclosures

2

(1) The Scottish Ministers must provide a Level 1 disclosure to an individual who—

(a) is 16 years of age or older, and

(b) makes an application.

(2) The Scottish Ministers may provide a Level 1 disclosure to an individual who—

(a) is 12 years of age or older but under 16 years of age, and

(b) makes an application,

if it appears to them from the information contained in the application that it is appropriate in the circumstances to provide the disclosure.

(3) The Scottish Ministers may refuse to provide a Level 1 disclosure to an individual under subsection (1) if it appears to them from the information contained in the application that the information that would be contained in the disclosure could more appropriately be obtained from another person.

(4) A Level 1 disclosure provided under subsection (1) or (2) may relate only to the applicant.

Applications by accredited bodies on behalf of individuals

3

(1) An accredited body may make an application under section 2 on behalf of an individual.

(2) An application by an accredited body on behalf of an individual may be made only with the consent of the individual.

(3) The Scottish Ministers must not consider any such application that does not comply with subsection (2).

(4) Where an application under section 2 is made by an accredited body on behalf of an individual, the individual is to be treated for the purposes of this Part as the applicant and, accordingly, any Level 1 disclosure provided as a result of the application is to be provided to the individual.

(5) Subsection (4) is subject to section 4.

(6) The Scottish Ministers may refuse to provide a Level 1 disclosure to an individual under section 2(1) where—

(a) the application for the disclosure is made on behalf of the individual by an accredited body, and

(b) the Scottish Ministers consider that the accredited body or its lead signatory or countersignatory has failed to comply with the code of practice published under section 55.

Provision of Level 1 disclosure to third parties

4

(1) Where a Level 1 disclosure is provided to an applicant by using electronic communications, the applicant may, within the prescribed period, either—

(a) request that the Scottish Ministers arrange for the disclosure to be made available by electronic communications to such other person or persons as the applicant may specify, or

(b) notify the Scottish Ministers that the applicant intends to make a Level 1 review application under section 5 in relation to the disclosure.

(2) If the applicant makes a request under subsection (1)(a), the Scottish Ministers must comply with the request.

(3) Where notification has been given under subsection (1)(b), the notification is to be treated as withdrawn if, before the end of the prescribed period, the applicant makes a request under subsection (1)(a).

(4) If no request or notification is made or given under subsection (1) within the prescribed period, at the end of that period the disclosure lapses and nothing further may be done in relation to it.

(5) Subsection (4) does not prevent the applicant subsequently making another application for a Level 1 disclosure.

(6) Otherwise, the Scottish Ministers must not make the disclosure available to any other person.

Level 1 disclosures: review applications

Level 1 disclosure: application for review

5

(1) Where a Level 1 disclosure is provided to an applicant, the applicant may, within the prescribed period, apply to the Scottish Ministers for a review of the accuracy of any of the information contained in the disclosure.

(2) Where a Level 1 disclosure is provided to an applicant by using electronic communications, an application may be made under subsection (1) only if the applicant has notified the Scottish Ministers under section 4(1)(b) of an intention to make the application.

(3) An application under subsection (1) is referred to in this Part as a “Level 1 review application”.

Review of accuracy of information by the Scottish Ministers

6

(1) This section applies where a Level 1 review application is made in relation to a Level 1 disclosure provided to an applicant.

(2) The Scottish Ministers must carry out a review of the accuracy of the information contained in the Level 1 disclosure.

(3) In the review the Scottish Ministers must decide whether the information is accurate.

(4) The Scottish Ministers must notify the applicant of their decision.

Provision of new Level 1 disclosure on conclusion of review proceedings

7

(1) This section applies where—

(a) a Level 1 review application is made in relation to a Level 1 disclosure provided to an applicant, and

(b) the Scottish Ministers have made a decision under section 6(3) in relation to the application.

(2) The Scottish Ministers must provide the applicant with a new Level 1 disclosure as if the applicant had made an application for the disclosure under section 2 on the date on which the Scottish Ministers made the decision under section 6(3).

(3) If the effect of the Scottish Ministers' decision under section 6(3) is, in relation to any of the information contained in the Level 1 disclosure that was subject to a review as to its accuracy, that the information is inaccurate, the Scottish Ministers must ensure that the new Level 1 disclosure contains corrected information.

Level 2 disclosures

Level 2 disclosure

8

(1) In this Part, a “Level 2 disclosure”, in relation to an individual, is a certificate—

(a) containing the prescribed details of every criminal disposal incurred by the individual that is recorded in central records or, if there are no such disposals, stating that fact,

(b) containing information about any spent childhood convictions and children's hearing outcomes of the individual that is to be included under section 13 or, if there is no such information, stating that fact,

(c) containing any information relating to the individual provided by the chief constable in accordance with section 14 or, if no such information has been provided, stating that fact,

(ca) containing any information relating to the individual provided by the chief officer in response to a request under section 14A or, if no such information has been provided, stating that fact,

(d) containing information relating to the individual provided by the chief officer of a relevant overseas police force that may be included in the disclosure in accordance with section 15 or, if no such information has been provided, stating that fact,

(e) if the individual is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, stating that fact,

(f) if section 16 applies, containing any further information under that section relating to the individual, and

(g) if section 17 applies, containing any further information under that section relating to the individual.

(2) But a Level 2 disclosure in relation to an individual must not contain any details or information if—

(a) the details or information were excluded from another Level 2 disclosure under section 31(4) following a Level 2 review application in respect of that other Level 2 disclosure, and

(b) it appears to the Scottish Ministers that the purpose of the disclosure is the same as the purpose of that other Level 2 disclosure.

(3) In subsection (1), “criminal disposal”—

(a) means—

(i) a conviction (other than a childhood conviction), whether spent or unspent,

(ii) an unspent childhood conviction,

(iii) an unspent caution (other than a childhood caution), but

(b) does not include a non-disclosable conviction.

Non-disclosable convictions

9

(1) For the purposes of this Part, a conviction of an individual is a non-disclosable conviction if—

(a) it is a spent conviction, and

(b) either—

(i) it is not a conviction for an offence listed in schedule 1 (a “List A offence”) or schedule 2 (a “List B offence”), or

(ii) it is a conviction for a List B offence and at least one of the conditions in subsection (2) is satisfied.

(2) The conditions are—

(a) the disposal in respect of the conviction was an admonition or an absolute discharge,

(b) the conviction is a childhood conviction and at least 5 years and 6 months have passed since the date of the conviction,

(3) The Scottish Ministers may by regulations modify schedule 1 or 2.

Non-disclosable children’s hearing outcomes

10

(1) For the purposes of this Part, a children's hearing outcome of an individual is a non-disclosable children's hearing outcome if—

(a) the offence which led to the children's hearing outcome is not a List A offence or a List B offence, or

(b) the offence which led to the children's hearing outcome is a List B offence and either of the conditions in subsection (2) is satisfied.

(2) The conditions are—

(a) the referral to the children's hearing which led to the children's hearing outcome was discharged under—

(i) section 69(1)(b) and (12) of the Children (Scotland) Act 1995, or

(ii) section 91(3)(b), 93(2)(b), 108(3)(b) or 119(3)(b) of the Children's Hearings (Scotland) Act 2011,

(as the case may be),

(b) at least 5 years and 6 months have passed since the date of the children's hearing outcome.

Provision of Level 2 disclosures

11

(1) The Scottish Ministers must provide a Level 2 disclosure to an individual who—

(a) is 16 years of age or older, and

(b) makes an application that complies with section 12.

(2) The Scottish Ministers may provide a Level 2 disclosure to an individual who—

(a) is 12 years of age or older but under 16 years of age, and

(b) makes an application that complies with section 12,

if it appears to them from the information contained in the application that it is appropriate in the circumstances to provide the disclosure.

(3) The Scottish Ministers may refuse to provide a Level 2 disclosure to an individual under subsection (1) where they consider a person mentioned in subsection (4) has failed to comply with the code of practice published under section 55.

(4) The persons are—

(a) the accredited body countersigning the application for the disclosure,

(b) the lead signatory of the accredited body,

(d) a person mentioned in section 56(1)(b)(i) at whose request the accredited body countersigned the application for the disclosure.

(5) A Level 2 disclosure provided under subsection (1) or (2) may relate only to the applicant.

Level 2 disclosure applications: countersigning and purposes

12

(1) An application for a Level 2 disclosure under section 11 must—

(a) be countersigned by an accredited body, and

(b) include a statement by the accredited body of the purpose for which the disclosure is required.

(2) The purpose stated in the application in accordance with subsection (1)(b) must be a purpose for which the application of section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) is excluded by virtue of an order made by the Scottish Ministers under section 4(4) of that Act.

(3) In this Part, references to the purpose of a Level 2 disclosure are references to the purpose stated in the application for the disclosure in accordance with subsection (1)(b).

Childhood information

13

(1) Before providing a Level 2 disclosure to an applicant, the Scottish Ministers must—

(a) ascertain whether there is any spent childhood conviction of the applicant that is recorded in central records and that is not a non-disclosable conviction,

(b) ascertain whether there is any children's hearing outcome of the applicant that is recorded in central records and that is not a non-disclosable children's hearing outcome, and

(i) whether the conviction or outcome is relevant for the purpose of the disclosure, and

(ii) whether information about the conviction or outcome ought to be included in the disclosure.

(2) Where the Scottish Ministers determine that a spent childhood conviction or children's hearing outcome of the applicant is relevant for the purpose of the disclosure and that information about the conviction or outcome ought to be included in the disclosure, they must include in the disclosure such information about the conviction or outcome as they consider appropriate in such form as they consider appropriate.

(3) On providing a Level 2 disclosure to an applicant that contains information under this section about a spent childhood conviction or children's hearing outcome of the applicant, the Scottish Ministers must notify the applicant of—

(a) the reasons for their determination that—

(i) the conviction or outcome is relevant for the purpose of the disclosure, and

(ii) information about the conviction or outcome ought to be included in the disclosure, and

(b) the right to make a Level 2 review application under section 20 for a review of the inclusion of the information.

Provision of relevant Scottish police information

14

(1) Before providing a Level 2 disclosure to an applicant, the Scottish Ministers must request the chief constable to provide any information relating to the applicant which—

(a) the chief constable reasonably believes to be relevant for the purpose of the disclosure, and

(b) in the chief constable's opinion ought to be included in the disclosure.

(2) The chief constable must comply with any request made under subsection (1) as soon as practicable after receiving it.

(3) The chief constable must not provide information by virtue of a request under subsection (1) if the chief constable thinks that disclosing the information would be contrary to the interests of the prevention or detection of crime.

(4) For the avoidance of doubt, information mentioned in subsection (1) may include information with respect to relevant behaviour within the meaning of section 5(1)(a) of the Age of Criminal Responsibility (Scotland) Act 2019.

(5) However, the chief constable may provide information mentioned in subsection (1) relating to a time when the applicant was under 12 years of age only where—

(a) the independent reviewer determines, on a review under section 18 of the Age of Criminal Responsibility (Scotland) Act 2019, that the information ought to be included in the Level 2 disclosure and—

(i) no appeal under section 20 of that Act is taken, or

(ii) such an appeal having been taken, the sheriff confirms the determination under section 20(3)(a) of that Act, or

(b) the sheriff, on an appeal under section 20 of that Act, determines under subsection (3)(b) of that section that the information ought to be included in the Level 2 disclosure.

Provision of relevant overseas police information

15

(1) Before providing a Level 2 disclosure to an applicant, the Scottish Ministers must request the chief officer of every relevant overseas police force to provide—

(a) any information relating to the applicant which—

(i) the chief officer reasonably believes to be relevant for the purpose of the disclosure, and

(ii) in the chief officer's opinion ought to be included in the disclosure, and

(b) a statement of the chief officer's reasons for—

(i) the chief officer's belief that the information is relevant for the purpose of the disclosure, and

(ii) the chief officer's opinion that the information ought to be included in the disclosure.

(2) Where information is received by the Scottish Ministers from the chief officer of a relevant overseas police force in response to a request under subsection (1), the Scottish Ministers must arrange for the independent reviewer to carry out a review of the information.

(3) In the review the independent reviewer must decide—

(a) whether the information is relevant for the purpose of the disclosure, and

(b) whether the information ought to be included in the disclosure.

(4) The Scottish Ministers may include the information in a Level 2 disclosure only if the effect of the final outcome of proceedings in the review carried out by the independent reviewer (including any appeal against the independent reviewer's decision by virtue of regulations under subsection (5)) is that the information—

(a) is relevant for the purpose of the disclosure, and

(b) ought to be included in the disclosure.

(5) The Scottish Ministers may by regulations make further provision in connection with the carrying out of a review by the independent reviewer under this section including, in particular, provision for or about—

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.