Volunteers and Criminal Records

Having a criminal record

There is often a stigma attached to having a criminal record. This means those who are punished formally by the courts and justice system can also be informally punished, because it reduces their future opportunities in life.

People with convictions can be excluded from society as a result. This exclusion, and subsequent reoffending, can be reduced through employment, volunteering and education opportunities. These can help promote a sense that you are part of society and have an investment in it.

Most offences will become spent after a specific amount of time, known as a ‘disclosure period’. At the end of the disclosure period, people no longer need to disclose those offences for most employment, volunteering or education opportunities.

What happens after a conviction becomes spent?

The general rule is that once a conviction is spent, the person does not have to disclose it and it will not appear on a disclosure certificate. If a person whose convictions are all spent is asked on a job, education or volunteer application form (or at an interview) whether they have a criminal record, they may lawfully say they have never been convicted.

Even if they choose to reveal their spent convictions, this information cannot be relied upon or used against them by an employer, education provider or volunteer organisation to treat them less favourably.

An employer cannot refuse to employ, or dismiss the person, because of a spent conviction.

There are exceptions to these rules where the position applied for (such as when undergoing a PVG check) allows for the employer, education provider or volunteer organisation to learn about certain spent offences for reasons of public protection.

What are relevant spent convictions?

Convictions that have passed the disclosure period and become spent can still be disclosed on higher level disclosures. These are known as ‘relevant spent convictions’. The period that relevant spent convictions can be disclosed depends on the type of offence rather than the sentence.

What can organisations ask about criminal history?

An organisation offering employment, education or volunteering opportunities can ask about any previous convictions that applicants may have. They will usually only have to disclose unspent convictions. However, in certain types of work, education or volunteering, you will have to declare any spent conviction on List A or List B, if it has been disclosed on a higher level disclosure (Standard, Enhanced or PVG).

If the offence they have been convicted of is not on either of these lists, once it is spent it will never have to be disclosed, regardless of the type of job, education or volunteering opportunity applied for.

Before asking a question about previous convictions, organisations should either explain to applicants what they legally need to disclose, or tell them where they can get advice on this.

Applicants also do not have to disclose a conviction on List A (which hasn’t already been in a higher level disclosure) if:

• it was 15 years ago or more, if they were aged 18 or over at the date of conviction
• or 7 and a half years or more have passed, if they were under 18 at the date of conviction

Applicants also do not have to disclose any ‘protected convictions’. A spent conviction is protected if:

• it is not on List A or List B
• or it is on List B but more than 15 years have passed (if they were 18 or over) or more than 7 and a half years have passed (if they were under 18)
• or the sentence given was an admonishment or an absolute discharge.

Applicants do not have to disclose a conviction on List B before the 15/7 and a half years has passed if the conviction is spent and you successfully appealed to a Sheriff. They can also apply to a Sheriff for an offence on List A to be removed from a higher-level disclosure certificate if the 15/7 and a half years have passed.

Extra resources

• The Scotland Works For You guide can be downloaded and contains a list of useful groups to contact if you have any questions or queries about revealing disclosure information.
• There are resources available on the Volunteer Scotland Disclosure Services website and information sessions on helping the voluntary sector can also be booked on the training section of the VSDS website.
• Volunteering with a Criminal Record - A guide for volunteer-involving organisations (Volunteer Edinburgh)
• Volunteering with a Criminal Record - A guide for volunteers (Volunteer Edinburgh)

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