Protected convictions – mitigating new problems

Recommendations for discussion from Recruit With Conviction to mitigate new problems relating to the speedy implementation of protected convictions in Scotland.


On 10 September the Scottish Government implemented an amendment to the Rehabilitation of Offenders Act 1974 which means that some minor, historic convictions are now removed from higher level criminal record checks.

This amendment will give confidence to potentially hundreds of thousands of people to take up volunteering with vulnerable groups or apply for work as a taxi driver, care worker or a host of other professions, however new practical problems have arisen.

New Practical Problems

People with convictions will not know if convictions are protected and recruiters tend to view any non-disclosure as a breach of trust, so a new catch22 situation has arisen.

After such long periods of time, it is unlikely that a citizen will remember enough details about convictions to be confident whether or not it will be protected. Working this out is quite complex and citizens will be concerned about getting it wrong.

Protected convictions are now within the scope of the Rehabilitation of Offenders Act 1974. This creates problems for employers who can now discriminate against an applicant who discloses a protected conviction. While guidance from Disclosure Scotland will ease some of these problems a number of solutions are required to mitigate the problem.

Conviction Disclosure Anxiety

Conviction disclosure anxiety (CDA) is a natural response when someone is asked about their criminal convictions. Negative previous experiences of disclosure tend to heighten the problem. The resulting avoidance behaviour is not exclusive to serious offending histories.  In fact CDA is surprisingly common across most of the 1 in 3 men and 1 in 10 women who have a conviction marked on the Scottish Criminal History System. Specialist services exist which support people to overcome CDA and teach applicants how to disclose appropriately. However resources for these services are increasingly tight.

Similarly recruiters also have a set of anxieties and knowledge gaps but the Recruit With Conviction training to employers can only currently be provided as a commercial activity of the organisation.

Appeal Process

An appeal process now exists, where spent convictions which are eligible for protection but have not yet passed the time period for protection.  A letter will be sent to the applicant before disclosing to their employer. It will offer them an option to either appeal to a sheriff or allow Disclosure Scotland to send the certificate on to the employer. The sheriff will then decide if the conviction is relevant to the job and can remove the conviction from the certificate. It is right that this should continue, however this process should ideally be picked up before a recruitment process begins to avoid delays for recruiters and applicants.

Required Solutions

  1. Ban the Box

Implement Ban the Box as a requirement relating to the terms and conditions for employers who use Higher Level Criminal Record checks. This process is promoted by Recruit With Conviction and Business in the Community as well as a range of other UK partners. It means that the earliest time an employer should ask for criminal record disclosure is during after short-listing for interviews, however in this scenario it would relate to questioning an applicant after the disclosure certificate has arrived. This way an applicant will know whether or not they have been rejected on the grounds of their criminal record alone.

  1. Free personal on demand access disclosure information

Currently a citizen can only confirm the details of their criminal history by applying for a Subject Access Request to Police Scotland. This costs £10, requires copies of identification to be sent and has a turnaround period of up to 40 days.

Having spoken to police officers, Recruit With Conviction understands that this process could be easily administered at any open police station.

If Disclosure Scotland algorithms were also applied to the Police system, then each conviction could also be marked as Spent and/or Protected on a print out for the citizen.

Given the correlation of poverty and minor criminal convictions, we also believe that the £10 charge is somewhat excessive  for a citizen to find out critical information which affects their opportunity to compete for employment.

  1. A Disclosure Helpline

While Disclosure Scotland provides excellent technical advice through its helpline, there are a range of nuances for both employers and applicants that could be smoothed through practical support and a knowledgebase of good practice relating to intersecting problems.

Funding for Apex Scotland’s Disclosure Helpline was ceased some time ago and a void exists in the availability of such support. The MOJ support similar services for citizens in England and Wales and they are provided by NACRO and Unlock.

We recommend the resumption of a Scottish disclosure helpline with a remit to support citizens and employers. Apex Scotland and Recruit With Conviction would be happy to collaborate in providing such a service.

For wider information about our views on protected convictions see the link below.

Note also Disclosure Scotland has opened a consultation. See the link below.