Changes to criminal record checks regime and the PVG Scheme in Scotland

The new Disclosure (Scotland) Act 2020, which received Royal Assent on 14 July, is set to change the criminal record checks regime and Protection of Vulnerable Groups (PVG) Scheme.

The PVG Scheme was set up to replace and improve disclosure arrangements for people working with vulnerable groups in Scotland. The Protection of Vulnerable Groups (Scotland) Act 2007 makes it an offence for companies or organisations to allow someone on the PVG Scheme “barred” list to work with children or vulnerable adults in regulated work.

The new legislation focuses on safeguarding children and vulnerable adults whilst balancing the need to improve previous offenders’ prospects of gaining employment.

The changes under the new legislation are:

  • the introduction of the terms “Level 1” and “Level 2” disclosures: disclosures will be streamlined from four to two levels. Level 1 replaces basic disclosures and Level 2 replaces standard and enhanced disclosures and PVG Scheme records;
  • the process for removal of spent convictions from Level 2 disclosures will be reformed;
  • membership of the PVG Scheme will be mandatory for anyone working, paid or unpaid, with children or protected adults in regulated roles for a five-year membership period. Anyone working in a regulated role without being a member will be committing an offence. Similarly, employing someone in a regulated role who is not a member of the Scheme will also be an offence;
  • automatic disclosure of youth convictions imposed between the ages of 12 and 17 will end. This move is made in recognition that rehabilitating individuals should be able to move on from youth offending;
  • there will be a new two-part test for the disclosure of childhood convictions.  For these to be disclosed the conviction must be (i) “relevant” to the purpose of the disclosure and (ii) “ought to be included” in the disclosure (section 13).  A similar two-part test also applies to the provision of relevant police information provided by the chief constable (section 14); and
  • there will be an opportunity for individuals to review the disclosure before it is given to a third party, giving them the chance to request that information be removed or amended (section 5).

The Act can be read in full here.

Disclosure rules are also changing in England and Wales. The government has stated that it is seeking to balance the interests of rehabilitating offenders and protecting the public. The draft Police Act (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 recently laid before Parliament seeks to:

  • remove youth cautions, warnings and reprimands from the scope of the definition of “relevant matter” which will be disclosed; and
  • remove the “multiple conviction rule” which requires automatic disclosure of all convictions where an individual has more than one conviction.

The draft Order can be read here.

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Mark Hamilton

About Mark Hamilton

Mark is a partner in Dentons' Employment and Labor practice. He has specialised in employment law since 1995. He advises on all aspects of employment law including Executive contracts and severances, TUPE transfers, collective employee relations, large restructuring and redundancy programmes, negotiation and termination of contracts and unfair dismissals. He is recognized as having both top class technical legal knowledge and an extremely pragmatic approach whether he is providing strategic advice or guiding clients through a complex dispute.

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