Do I Have to Disclose a Spent Conviction in Scotland?

Who this guide is for

People with a conviction, or an alternative to prosecution such as a fiscal fine or a warning, who want to know whether they have to tell an employer or anyone else about it in Scotland. It explains the disclosure periods under the Rehabilitation of Offenders Act 1974 as it applies in Scotland, what spent means, and when some spent convictions still have to be disclosed.

What this guide does not cover

• England, Wales or Northern Ireland: the periods are different. See the England and Wales guide or the Northern Ireland guide. If you live or are looking for work in Scotland, Scots law applies.
• How to apply for a Level 1 or Level 2 disclosure or join the PVG scheme, what a disclosure shows, and how to dispute one: use the criminal record check checker or ask Disclosure Scotland.
• Driving endorsements and bans, hospital and compulsion orders, armed forces punishments and convictions from outside the UK: ask Disclosure Scotland or Citizens Advice Scotland.
• Behaviour from when you were under 12: there are separate rules. See mygov.scot or ask Disclosure Scotland.
• Immigration, nationality and visa applications: ask an immigration adviser or, for a visa to another country, that country's embassy.
• What to do if you were turned down or dismissed because of a conviction: ask Citizens Advice Scotland or a solicitor.

⚖ At a glance

• A conviction becomes spent when its disclosure period ends. The disclosure period starts on the date of conviction.
• Once a conviction is spent, it generally does not have to be disclosed. Some jobs and proceedings are exceptions.
• While a conviction is unspent, you must disclose it to an employer or possible employer if they ask.
• Employers cannot ask about spent convictions unless the job is exempt from the 1974 Act.
• A custodial sentence of more than 48 months is an excluded sentence: the conviction does not become spent after a set time.
• Checks in Scotland are done by Disclosure Scotland, not the DBS. A Level 1 disclosure (it replaced the basic disclosure) shows unspent convictions, not spent ones.

The questions that decide the answer

1. Where do you live or where is the job? Scotland: this guide. England, Wales or Northern Ireland: see that guide.
2. Was it a court sentence or an alternative to prosecution? Warnings and fiscal fines have their own, much shorter rules below.
3. What sentence did you get, and how long was it? Custody, a Community Payback Order, a fine, an admonishment or another sentence. If you do not know the length, this guide cannot give the date it becomes spent.
4. What was the date of conviction, and how old were you then? The period counts from the date of conviction. Under 18: most periods are shorter.
5. What are you being asked for? Most jobs: only unspent convictions. A job that needs a Level 2 disclosure or PVG scheme membership, or another job listed in the 2013 Order: unspent convictions and some spent ones.

When a conviction becomes spent

Disclosure periods count from the date of conviction. The shorter period in brackets applies if you were under 18 on the date of conviction.

Custodial sentences

• Up to and including 12 months: the length of the sentence plus 2 years (plus 1 year).
• Over 12 months and up to and including 30 months: the length of the sentence plus 4 years (plus 2 years).
• Over 30 months and up to and including 48 months: the length of the sentence plus 6 years (plus 3 years).
• Over 48 months: an excluded sentence. The conviction does not become spent after a set time. The Management of Offenders (Scotland) Act 2019 allows for a review of these convictions, but the regulations for it have not been made yet.
• For example, a 12-month custodial sentence given to an adult may become spent 3 years after the date of conviction. A 4-year sentence given to an adult may become spent after 10 years.
• Other excluded sentences are listed in section 5(1) of the 1974 Act: ask Disclosure Scotland.

Other sentences

• Community Payback Order, Drug Treatment and Testing Order or Restriction of Liberty Order: 12 months or the length of the order, whichever is longer (6 months or the length of the order).
• Fine or compensation order: 1 year (6 months).
• Bond of caution: 6 months or the length of the caution period, whichever is longer (3 months or the caution period).
• Absolute discharge or admonishment: no disclosure period. There is nothing to disclose.
• Adjournment or deferral of sentence after conviction: until the sentence is given.
• Any other sentence not listed in the 1974 Act: 12 months (6 months).

Alternatives to prosecution

• A warning from the police or the procurator fiscal, and an antisocial behaviour fixed penalty notice, are spent at the time they are given.
• Other alternatives to prosecution, such as a fiscal fine, a fiscal compensation offer or a fiscal work order, are spent 3 months after the day they are given.
• If you are later prosecuted and convicted for the same offence, different rules apply: ask Disclosure Scotland.

More than one conviction

• If you got more than one sentence for one conviction, the longest disclosure period applies to the conviction.
• If you are convicted of a further offence in solemn proceedings before an earlier conviction is spent, the shorter of the two disclosure periods is extended to end at the same time as the longer one. There are exceptions: ask Disclosure Scotland or Citizens Advice Scotland to work out your dates.
• An excluded sentence has no effect on the disclosure periods of earlier or later convictions.

Do I have to tell them?

Most jobs, insurance and other applications

• Unspent: you must disclose it when asked. If you do not, and it shows on a Level 1 disclosure, you may lose the job or not be considered for it.
• Spent: you generally do not have to disclose it, and employers cannot ask about it unless the job is exempt from the 1974 Act.
• The 1974 Act protection is not only for jobs. The Scottish Government's self-disclosure guidance is also for people applying for insurance, a bank account, a mortgage or to rent a property.
• An unspent conviction is not in itself a bar to employment. It is up to the employer to decide.

Jobs that need a higher level check

The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 lists jobs and proceedings where the protection is switched off. For these, you have to disclose unspent convictions and some or all spent ones. Which spent ones depends on the offence and on the circumstances in which you are asked. Working this out can be complex: ask the employer which level of check the job needs, and ask Disclosure Scotland what you must disclose.

• Level 2 disclosure: used only for specific roles, such as solicitors and prison workers. It shows unspent convictions and certain spent convictions.
• PVG scheme: for regulated work with children or protected adults. The spent conviction rules below for Level 2 disclosures include PVG scheme disclosures.
• Offences that must be disclosed: serious offences, such as culpable homicide, are shown on Level 2 (including PVG) however long ago the conviction was, even if the sentence was an admonishment or absolute discharge.
• Offences disclosed according to rules: offences such as fraud or theft are shown on Level 2 (including PVG) for 11 years if you were 18 or over on the date of conviction, or 5 years and 6 months if you were under 18.
• You can apply to have certain spent convictions removed from a disclosure. For an offence on the must-disclose list, you have to wait until a certain length of time has passed.

Deadlines

• This guide has no court or tribunal deadlines. The dates that matter are the disclosure periods above, counted from the date of conviction.

Money figures

• This guide gives no money figures. The amount of a fine does not change its disclosure period.

Traps

• In Scotland the disclosure period for custody counts from the date of conviction and is the length of the sentence plus a buffer. England and Wales count from the end of the sentence.
• The England and Wales rehabilitation periods and the Exceptions Order 1975 do not apply to jobs in Scotland.
• Admonishment and absolute discharge have nothing to disclose on a Level 1 disclosure, but a serious offence on the must-disclose list still shows on Level 2 and PVG.
• Spent does not mean deleted. It means you generally do not have to disclose it.
• Employment tribunal time limits have nothing to do with disclosure periods.