Disclosure in Scotland: The journey so far

CYCJ welcomed the Disclosure (Scotland) Act 2020 which received Royal Assent on July 14 and the news that the changes introduced by Part 2 of the Management of Offenders (Scotland) Act 2019 went live on November 30. Debbie Nolan reflects on the journey of change in Scotland.

The Disclosure (Scotland) Act 2020 will – once implemented with commencement date TBC – fundamentally reshape Scotland’s approach to the disclosure of conviction (and non-conviction) information.

Crucially, the Act will introduce a distinct approach to the disclosure of offending behaviour that occurred during childhood, limiting the disclosure of such information. The Act makes many provisions, with some of those of particular significance to children or those with disclosable childhood information:

• Amending the Rehabilitation of Offenders Act 1974 so that the disclosure period for childhood convictions will be zero. This means these will become immediately spent, apart from excepted sentences which are childhood convictions that resulted in a custodial sentence of more than 48 months, and convictions for sexual offences that resulted in a custodial sentence of more than 12 months (there have been less than 30 childhood convictions with these disposals in the last six years).
• Unspent childhood convictions as detailed above will continue to be disclosed automatically on Level 1 disclosures (the successor to basic disclosures) and Level 2 disclosures (the successor to higher level disclosures). Convictions resulting in a custodial sentence of greater than 48 months will be disclosed indefinitely, because such convictions cannot become spent.
• Ending the automatic disclosure of spent convictions (only included on Level 2 disclosures) accrued by an individual while aged 12 to 17 years old. Instead decisions on disclosing such information will be made on a case-by-case basis as detailed in s. 13 of the Act, based on statutory guidance and the factors detailed in s.33. Provisions are also made for explaining why such information has been included, right of appeal, review and representation.
• Childhood information will be treated and listed as a separate category distinct from adult conviction information
• Information will be treated as childhood conviction information if the individual was under 18 at the date of the offence (as opposed to the date of conviction)
• Changes to the process of disclosing Other Relevant Information including the introduction of rights of review and appeal and the development of statutory guidance

The implications will be significant, when taken alongside the changes in the Age of Criminal Responsibility (Scotland) Act 2019 and Management of Offenders (Scotland) Act 2019 (Part 2 of which went live on November 30 reducing the disclosure period, and therefore when sentences become “spent” for the majority of sentences, including custodial and non-custodial sentences and offences dealt with through the Children’s Hearings System). Scotland Works for You guidance has been updated to reflect these changes. As the plan for implementation of the 2020 Act becomes clearer (including in terms of accompanying guidance and support), we will share further information on the content and implications of the Act.

CYCJ has long raised concerns about Scotland’s disclosure system and particularly the approach to the disclosure of childhood conviction information, advocating that change is necessary. Although the 2020 Act and associated legislation will not solve every issue with the disclosure system (see for example our submission to the Education and Skills committee), the changes it will bring must be commended and will markedly improve the current situation. The journey of change so far has at times been complex and arduous, perhaps reflecting the disclosure system itself. The fact that this is governed by various pieces of legislation which have been subject to incremental change, has at times left myself and others with a feeling that achieving real change was just going to be too hard. It has given me many headaches along the way and resulted in numerous frantic phone calls to colleagues in other agencies asking “Am I right in thinking this change would mean this…?”

As CYCJ has been one of numerous partners in this journey of change, it feels like the right moment to capture some insights into the learning from this journey, and factors that appear to have supported change:

Consultation and engagement

A wide-ranging and significant amount of consultation and engagement activity has been at the heart of this process. Led by Disclosure Scotland even prior to the Consultation on the Protection of Vulnerable Groups and the Disclosure of Criminal Information and the Bill being drafted, it has ensured that a wide range of voices, experiences, concerns and views on opportunities for change were able to be shared and taken into account throughout.

Supporting change through evidence

The process has made best use of a range of knowledge, evidence and information to support the case for change. This included bringing together information from policy, practice, research and lived experience, nationally and internationally, not just to make the case for change but also to provide suggestions for how change could be achieved and what this could look like. For CYCJ, this fits well with our key activities and we particularly benefitted from the ongoing information we gathered from our support services. This included queries from children, young people and adults with childhood disclosable information, and the practitioners looking for advice, guidance and support.

In it together

Bringing people together was really important to support collective understanding of this complex matter; share views, experiences, and questions; agree key messages; and bounce ideas or check understanding with each other. This included CYCJ and Community Justice Scotland regularly hosting roundtable events where attendees got to hear from policy leads, Disclosure Scotland and experts, ask questions and engage in discussion. The Debating Disclosure event, hosted by CYCJ with CELCIS and the Scottish Care Leavers Covenant, was another example. Seventy delegates attended from the looked after children, and youth and criminal justice workforce, including representatives from local authorities, the Scottish Government, third sector organisations, Scottish Children’s Reporters Administration (SCRA), Police Scotland, the Scottish Prison Service, secure care centres, and academics. The event combined formal inputs from a range of colleagues, including CYCJ Associate Claire Sands, and facilitated table top discussion and reflection. Participant discussions helped us to pull together and document the challenges of the current system, and opportunities for change in Scotland’s approach to childhood conviction information.

The adoption of a relational, collaborative and partnership approach with the ability to draw on skills, knowledge, and influences of different partners was important. This included working closely with the Scottish Government, Disclosure Scotland, agencies who support people with convictions, advocacy organisations, children and human rights experts, legal professionals, academics and many more. In particular, we benefitted from the legal and children’s rights perspectives of members of a subgroup of the Strategic Litigation Group led by Clan Childlaw.

A range of partners, including CYCJ, made the most of opportunities to inform and influence the Bill during its passage through the Scottish Parliament. Although often coming from different perspectives or areas of focus, there were some very clear collective and agreed messages that we were all able to contribute.    

Tenacity, passion and boundary spanning

The passion and drive of a number of individuals, all of whom brought unique and specialist knowledge from varied backgrounds, ensured this opportunity was maximised to improve outcomes and make changes to result in the best disclosure system possible. The tenacity and drive of these individuals and their respective organisations was key in making the case for and supporting the achievement of real change.

I like to think our part in this reflects the findings from our recent evaluation “CYCJ’s tenacity was also valued: “And when they come to the table, they’re very robust, they’re very thorough, but they’re like a dog with a bone about what needs to be done” (Civil Society 5)” (Stokes-Rankin, 2019, p.16).

In our role as a boundary spanning organisation, CYCJ was well placed to support the above activity. This experience will feed well into our explicitly recognised focus on policy development (alongside practice development and our other key activities of research and participation and engagement) as detailed in our new five year strategy.