Disclosure (Scotland) Act 2020
| Year | 2020 |
Disclosure (Scotland) Act 2020
2020 asp 13
An Act of the Scottish Parliament to restate and amend the law relating to the disclosure of criminal history and other information by the Scottish Ministers; to make amendments to the Protection of Vulnerable Groups (Scotland) Act 2007; and for connected purposes.
[14 July 2020]
PART 1
Disclosure of criminal history and other information
Level 1 disclosures
1 Level 1 disclosure
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.
2 Provision of Level 1 disclosures
(1) The Scottish Ministers must provide a Level 1 disclosure to an individual who—
(a)
(a) is 16 years of age or older, and
(b)
(b) makes an application.
(2) The Scottish Ministers may provide a Level 1 disclosure to an individual who—
(a)
(a) is 12 years of age or older but under 16 years of age, and
(b)
(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.
3 Applications by accredited bodies on behalf of individuals
(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)
(a) the application for the disclosure is made on behalf of the individual by an accredited body, and
(b)
(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.
4 Provision of Level 1 disclosure to third parties
(1) Where a Level 1 disclosure is provided to an applicant by using electronic communications, the applicant may, within the prescribed period, either—
(a)
(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)
(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
5 Level 1 disclosure: application for review
(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”.
6 Review of accuracy of information by the Scottish Ministers
(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.
7 Provision of new Level 1 disclosure on conclusion of review proceedings
(1) This section applies where—
(a)
(a) a Level 1 review application is made in relation to a Level 1 disclosure provided to an applicant, and
(b)
(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
8 Level 2 disclosure
(1) In this Part, a “Level 2 disclosure”, in relation to an individual, is a certificate—
(a)
(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)
(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)
(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,
(d)
(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)
(e) if the individual is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, stating that fact,
(f)
(f) if section 16 applies, containing any further information under that section relating to the individual, and
(g)
(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)
(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)
(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)
(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)
(b) does not include a non-disclosable conviction.
9 Non-disclosable convictions
(1) For the purposes of this Part, a conviction of an individual is a non-disclosable conviction if—
(a)
(a) it is a spent conviction, and
(b)
(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)
(a) the disposal in respect of the conviction was an admonition or an absolute discharge,
(b)
(b) the conviction is a childhood conviction and at least 5 years and 6 months have passed since the date of the conviction,
(c)
(c) the conviction is not a childhood conviction and at least 11 years have passed since the date of the conviction.
(3) The Scottish Ministers may by regulations modify schedule 1 or 2.
10 Non-disclosable children’s hearing outcomes
(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)
(a) the offence which led to the children’s hearing outcome is not a List A offence...
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