Purpose of a Basic Disclosure
From 1 January 2018 Disclosure Scotland no longer provide Basic Disclosure checks for customers in England and Wales. Customers in England and Wales must obtain their Basic Disclosure through DBS (Disclosure and Barring Service).
What’s changes?
Disclosure Scotland has processed England and Wales Basic Disclosure checks under a delegation this ended on 1 January 2018. Employers checking candidates using the Basic Disclosure are required to ensure they process a criminal record check through the appropriate body – DBS or Disclosure Scotland.
This is because each organisation will be applying different rules on what is considered a spent conviction. Convictions are spent faster in England and Wales than in Scotland. Therefore if you obtain a Basic Disclosure in Scotland, for a job role in England, you might receive information you are not entitled to see. This can be considered a breach of the Data Protection Act 1998, and also the General Data Protection Regulation (GDPR) that will come into force from 25 May 2018, which could result in action being taken by the Information Commissioner (ICO) or the individuals themselves.
A Basic Disclosure is still available to Anyone in the UK for any purpose - e.g. Where a person’s job is working in a position of trust, or working in premises unsupervised, or required to work within the Aviation Security sector (Airside), for a personal licence, for a Visa Applications or in any position where it is required by an employer to obtain a criminal record history.
You can apply for a basic disclosure for any purpose. However the contents of a basic disclosure certificate may differ depending on whether the application for the certificate is processed under the legislation that applies in England and Wales or under the legislation that applies in Scotland. A basic disclosure certificate either contains information about every conviction of an applicant or states that there is no such conviction. Conviction takes its meaning from the Rehabilitation of Offenders Act 1974, but it does not include any spent conviction. The Rehabilitation of Offenders Act 1974 sets out rehabilitation periods after which convictions may become spent; different rehabilitation periods apply in England and Wales and in Scotland.
Rehabilitation periods should be determined with reference to the law of the jurisdiction to which the inquiry relates. For example if you are applying for a basic disclosure in connection with an application to work in England or Wales then the question is probably being asked under the laws of England & Wales. It is for you and your prospective employer (in cases where the question is being asked for employment purposes) to identify the applicable governing law. Disclosure Scotland expects that the applicable governing law will normally be the same jurisdiction in which the applicant lives.
For an application where the home address of the applicant is in England or Wales, the application will be processed under the version of section 112 of the Police Act 1997 and the rehabilitation periods in section 5 of the Rehabilitation of Offenders Act 1974 that apply in England and Wales.
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