The Structure and a Summary of the Act Rules relating to disclosure Section 30 - Disclosure periods applicable to convictions
126.Section 30 of the Bill amends section 6 of the 1974 Act. Section 6 of the 1974 Act makes provision for ascertaining the disclosure period applicable to a conviction.
127.Section 30(2) substitutes the words “section 5” in each of section 6(1) and section 6(2) with “sections 5 to 5I” to reflect the structural changes being made to the 1974 Act.
128.If one sentence is imposed in respect of a conviction, the disclosure period is as set out in the relevant sections of the 1974 Act, as amended by the Bill. Section 6(2) means that if more than one sentence is imposed in respect of a conviction (for example, a fine and a custodial sentence), and the two sentences have a different disclosure period attributable to them, the conviction requires to be disclosed in accordance with the longer or longest of these periods.
129.Section 30(3) repeals the current section 6(3) but provision for conditional discharges will continue to be made by section 30(4) of the Bill, which inserts new subsections (3ZA) to (3ZD) into section 6 of the 1974 Act.
130.Although a conditional discharge is not a disposal under Scots Law, the absence of a specific Scottish equivalent means that the reference is retained to ensure that the amendments do not create a gap in the regime for people in Scotland who have received this disposal elsewhere in Great Britain. These new provisions replicate the existing rule in section 6(3) but extend it to apply to specific Scottish disposals. The disposals to which it applies are set out in section 6(3ZC) and are an order for conditional discharge (a non-Scottish disposal), a CPO, a drug treatment and testing order and a restriction of liberty order.
131.The applicable rule is set out in new section 6(3ZA) and (3ZB) of the 1974 Act. This applies if a person is given one of the orders listed in section 6(3ZC) for an offence (“offence A”) and the person breaches the order and, as a result of this breach, the person is sentenced for offence A after the disclosure period for the order has ended. The person is not to be treated as a protected person, and the conviction is not spent, until the disclosure period for that second sentence has expired.
132.To use the example of a CPO, in some circumstances where there has been a breach of the order, the court may revoke the order and deal with the person in respect of offence A as if the order had not been imposed. In this case, the disclosure period for the conviction resulting in the CPO would end at the point of revocation. However, the effect of new section 6(3ZB) is that the person will not be treated as a ‘protected person’ in respect of the conviction until the expiry of the disclosure period applicable to how the person is dealt with by the court as a result of breaching the CPO and the conviction will not be treated as spent until that period has expired.
133.Section 6(3ZD) of the 1974 Act gives the Scottish Minsters the power by regulations, subject to the affirmative procedure, to modify the list of orders set out under section 6(3ZC).
134.Section 30(5) of this Bill substitutes the current rule under section 6(4) of the 1974 Act. The rule applies where a person is convicted of one offence and during the disclosure period for that offence, is convicted of a further offence. Without this rule the disclosure period for the two convictions would end on different dates. However, under this rule, the disclosure period applicable to both convictions will end at the same time, in accordance with whichever period is the longer or longest.
135.For example, if conviction A has a disclosure period which would end 6 months prior to the disclosure period for conviction B, conviction A’s disclosure period will be extended to end at the same time as conviction B’s. However, this is subject to exceptions.
136.The first exception, inserted by section 30(6) of the Bill, which inserts new 6(4A)-6(4C), applies where, in respect of the first conviction, the court adjourns the case or defers sentence, and during the disclosure period for the period of adjournment or deferral, the person is convicted of a second offence. In this case if, when sentencing the person for the first offence, the court imposes a sentence which has no disclosure period, section 6(4) does not apply to extend the disclosure period of the first conviction to accord with the second conviction. In other words, the first conviction will be able to become spent on imposition of the sentence, irrespective of the sentence imposed for the second conviction.
137.Section 30(7) of this Bill substitutes the current rule under section 6(5) of the 1974 Act with an updated rule set out in new section 6(5) to (5B), maintaining a further exception to the rule in section 6(4). Section 30(7) updates this rule in section 6(5) to take account of the orders which will be provided for in new section 5(2D) and (2E) of the 1974 Act, inserted by section 19 of the Bill. It provides that where the disclosure period applicable to a conviction is as a result of an order being imposed under new section 5(2D) of the 1974 Act, this will not extend the disclosure period of another conviction.
138.Under new section 6(5), if the only sentence for a conviction is a sentence mentioned in new section 5(2D), the disclosure period for another conviction is never extended to match the disclosure period for that sentence. For example, if a non-harassment order with a disclosure period of 5 years (but no other sentence) is imposed for conviction 1, the disclosure period for a fine with a disclosure period of (say) 12 months for conviction 2 is not extended to match the five-year period.
139.However if, in addition to the non-harassment order for conviction 1, a custodial sentence with a disclosure period in excess of 12 months were imposed, this would extend the disclosure period for conviction 2 (although the disclosure period for the non-harassment order would effectively be ignored in determining the length of the extension). This is the effect of new subsections (5A) and (5B) of section 6.
140.Section 30(8) of the Bill amends the 1974 Act to update the legislative reference as it relates to Scotland. The effect is to leave paragraph (a) of section 6(6) in place and replace paragraph (b) with a reference to Scottish courts of summary jurisdiction. The reason for this is that the current references in section 6(6)(b) are outdated. The effect of this is that the rule in section 6(4) of the 1974 Act is subject to a further exception, which is that a conviction from a Scottish court in summary proceedings is not capable of extending the disclosure period of another conviction.