The Scottish Government has passed a significant reform to their criminal records regime. The Scottish system is separate from the one that applies in England and Wales, and had fallen behind the rest of the UK after Westminster made significant updates in 2014.
The reforms that Holyrood have now passed make for interesting reading. The Scottish reforms, which come into force in November, give an insight into how criminal records are seen inside government and should be seen as a barometer for the rest of the UK.
The new system does not just mirror England and Wales; It is broadly similar, but the changes are significant, especially when looked at in terms of the numbers of people who will be impacted. Note: the Ministry of Justice recently published a sentencing white paper, including proposed changes to the criminal records system in England and Wales.
The changes in Scotland
The most important difference is that the lowest tier for disclosing custodial sentences in Scotland now cuts off at 12 months, not six months as in England and Wales. This makes a significant difference, because short sentences are the most common, and those between six and 12 months are just under 20% of the annual total.
As a result, about 2,000 more people per year will fall into the two year disclosure period, instead of the four year period they would face in England and Wales. 80% of all custodial sentences in Scotland will now be in the lowest tier for disclosure, compared to 62% if they had adopted the same system as England and Wales.
This change also impacts the kinds of offences which will fall into the shortest disclosure period. Twelve months is the maximum sentence that can be imposed by a magistrate (summary process by a sheriff in Scotland). This means that all custodial sentences imposed by will have the same disclosure regime, which is a much fairer approach.
Minor variations in sentencing between individual sheriffs or magistrates will not lead to multiple additional years of disclosure. There will still be discretion over sentence lengths, but not over how long they will be disclosed for. This also shows more joined up thinking. It makes sense that the existing division between magistrates and crown court is reflected in the subsequent disclosure.
Another major change is that the Scottish legislation will allow – eventually – for sentences over 4 years to become spent. This will not happen automatically, but the Scottish government have committed to creating a review process to determine when, or if, they can become spent.
This is a significant shift in position, and it is the first attempt in the UK to handle these more serious convictions on a case by case basis. While longer sentences are less frequent overall, the current requirement to disclose indefinitely means they impact people for decades, regardless of how much they have moved on. The ability to review a conviction and have it become spent is much fairer than blanket rules.
We do not know what that review process will look like, or even necessarily the criteria that will be used, so there are still some hurdles to overcome. We are particularly concerned about the resources that will be available, because this will hugely impact how effective that system can be. However, this is still a big move in principle, and we hope it will be as meaningful in practice.
These changes are not huge in legislative terms, but they will make a major difference to a large number of people. 22% of annual sentences in Scotland will have a fairer disclosure regime than in England and Wales. 2,500 people per year will have a more positive future because of a more progressive criminal records system, with easier access to employment and education, and fair access to insurance.
How does this impact England and Wales?
It is very encouraging for our reform work in Westminster that Holyrood has made this move. We can see that political and government circles are interested in a more progressive approach, and that they do see the positives associated with a less draconian system.
Once the Scottish system is in action it will provide a continuous stream of data showing the impact that reducing disclosure has in numerous different ways. If the figures show lower reoffending and improved employment, as the Scottish government believes they will, this will be powerful evidence for making similar changes in England and Wales.
Equally, the Scottish Government has shown that the arguments that Unlock is making in Westminster do impact policy decisions. The Scottish Justice minister, Humza Yousaf, said: ￼“Progressive changes to disclosure allow people to move on with their lives into employment, [and are] proven to reduce the likelihood of further offending. As a result, these changes] help keep crime down and communities safe.”
These are exactly the arguments that Unlock make, and it is very positive to see officials citing these benefits as the reason for reducing disclosure. stance taken further, especially for ￼intermediate-length sentences where Scotland will largely mirror the wider UK.
In the coming year, our calls to reform the Rehabilitation of Offenders Act will certainly be strengthened by the Scottish reforms. The arrival of new legislation will shine a spotlight on the regime in England and Wales, and help to break the inertia, as well as providing real world data. Unlock will be building from Scotland’s example to deliver a truly fair criminal record system that works for everyone.
Join the FairChecks movement, and call on the government to reform criminal records checking in England and Wales.
Written by Sam Doohan, Unlock Policy Officer