I represent Howard League Scotland, which is Scotland’s only penal reform organisation.
We welcome the opportunity to give evidence, and we hope to build on the evidence that we have given previously in relation to the age of criminal responsibility and the Management of Offenders (Scotland) Bill. We also recognise that the proposed changes seek to achieve a much more proportionate and individualised process that balances safeguarding the public with the rights of individuals with convictions.
Our submission attended to four key areas: childhood convictions and the issue of individualised disclosure; uses of other relevant information; representation, review and appeal; and removable and non-disclosable convictions.
With regard to the first key area, we welcome the provisions that treat childhood convictions as a separate category and limit the disclosure of information relating to children and, in particular, the automatic disclosure of childhood convictions. We feel that that approach takes Scotland towards a more individualised and structured discretionary model of disclosure. With regard to the disclosure of convictions accrued in childhood, we question why such a model or approach might not be applied to adult convictions. However, we advocate for a more individualised approach to the disclosure of convictions in general.
We have suggested that, if ORI is to be disclosed, the implications of any disclosure need to be carefully evaluated in terms of proportionality and necessity in relation to the ends of public protection against the rights of individuals. We also believe that the bill should categorically rule out the disclosure of certain kinds of information that might be disclosed currently as ORI.
We welcome provisions relating to reviewable data, including rights of review, representation and appeal. While we welcome measures to include representations from the applicant, which can allow for a much more situated understanding, we propose that consideration is given to providing for an independent reviewer on first request for all reviews, rather than a review initially being undertaken by the body whose decision is to be reviewed.
We also welcome the provisions in the bill for reducing the period after which a conviction may become non-disclosable or an application for removal can be made. Drawing on research evidence produced by time-to-redemption studies, we still have questions about the disclosure of spent convictions for the purposes of public protection in circumstances where the evidence would suggest that that person is statistically no more likely than members of the non-convicted population to commit a crime in the future. We also question the rationale for continuing to disclose spent convictions if there is scope in the provisions of the bill to remove them before that point. If a conviction may be removed, that suggests that on-going disclosure is not required in the interests of protecting the public.
Finally, the onus seems to be on the individual to apply to have their conviction removed, which rather depends on their having both the knowledge and the means to do so. Ought not the responsibility properly reside with Disclosure Scotland to review the relevancy of continued disclosure of spent convictions? That the subject is required to pay a fee for consideration of removal of the conviction puts yet another barrier in the way of people with very limited means.