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Spent conviction shown on basic disclosure


Spent conviction shown on basic disclosure

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Being somewhat cynical I decided to apply for a basic disclosure certificate from Disclosure Scotland to check if my conviction has been filtered as it was spent on 10th March 2014 with the changes to ROA. I live in England. The offence is still listed on the certificate. I called Disclosure Scotland and there was no one able to deal with my issue. Their complaints email address (complaints@disclosurescotland.co.uk) is not valid.

I am livid. Any legal advice as to what can be done? This could be happening to other people who have declared no convictions. It is an absolute outrage. Surely disclosure of information such as this is an offence? Oh wait it's one rule for the government...
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An update on this:

As part of my sentence was a compensation order this will result in the conviction remaining unspent in the eyes of Disclosure Scotland unless you provide proof of full payment. This is a new condition since the new disclosure periods were introduced on 10 March 2014. Their blurb is pasted below and the link provided.

This means that:

1. Although legally spent unless you prove full payment in their view you are not spent and never will be
2. You can legally declare you have no unspent convictions but the official document will say otherwise - try arguing against that, and at the very least your conviction is then exposed when it shouldn't have been
3. The burden of proof is on the requester, not Disclosure Scotland. I am not sure this is based on legislation or it's just their way out of a poor business process
4. Even if all other parts of the disposal indicate a spent conviction they will issue a certificate showing the conviction as unspent as a default
5. Disclosure Scotland insist "In England & Wales, you can obtain a letter of confirmation from the court when any compensation order has been paid in full." This is not true. I contacted the court I was sentenced at and they said "We cannot provide proof of payment of the compensation at the crown court. The crown court does not deal with takings of the money"

In summary if you have a compensation order component and cannot prove you've paid your conviction will never become spent in the opinion of Dislcosure Scotland. Legally you are spent but the only official body who can confirm that will say the opposite.

To the people of Scotland: please vote yes to independence in September!


From: www.disclosurescotland.co.uk/basicdisclosureonline/index.htm

Compensation Orders

You should read this section if you have been convicted of an offence since 10 March 2009 and your sentence includes a compensation order.

If you consider any conviction ‘spent’ under the Rehabilitation of Offenders Act 1974 because you have paid any compensation order included in your sentence then you need to provide evidence to that effect to Disclosure Scotland when applying for a Basic Disclosure. In England & Wales, you can obtain a letter of confirmation from the court when any compensation order has been paid in full. A copy of that letter should be provided to Disclosure Scotland either with your application or separately in confidence if your application is being submitted via a third party. You do not need to discuss any separate submission with any third party. To submit proof of payment independently of submitting an application please click here. You should quote your application barcode or reference number, or your name, current address, and date of birth in your communication.

In Scotland the rehabilitation period for a compensation order is five years from the date of conviction and no proof of payment requires to be submitted.
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A compensation order isn't the same as a fine. It's payable to the victim of your crime rather than the state.

According to LASPO it's spent as soon as you pay it: www.legislation.gov.uk/ukpga/2012/10/section/139

"A compensation order - End of rehabilitation period for adult offenders: The date on which the payment is made in full"

My compensation order was part of my sentence which also included a community order.

I paid the compensation order within the six month window is was given by the judge. The issue here is that Disclosure Scotland want proof of that payment. The court does not hold that information.

A compensation order is not the same as court costs or a fine. I don't know if victim surcharge is a compensation order. This is the problem. Some people don't remember what they were given or whether it is a compensation order or not.
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In my case I found the London Collection and Compliance Centre have proof of payment being made.

So I don't know what the procedure is for the rest of the UK.

The point is the burden should be on Disclosure Scotland to find this out. They are issuing certificates showing unspent convictions when they are spent and providing incorrect guidance which they insist is followed (i.e. the sentencing court keeps a record). You can't win as you need them to issue the certificate. All while supposedly being protected by the Rehabilitation of Offenders Act.

I have to pay Disclosure Scotland again to reissue the certificate. I am not sure whether I have to provide payment proof each time or if they update their systems. Considering their feckless approach so far I'll err on the side of they won't update their records.

Isn't it about time the DBS provided basic disclosure for England and Wales?
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Ouch! I suspect there are many many people in the same situation. If you were convicted in the London area you should be ok contacting the London Collection and Compliance Centre /courttribunalfinder.service.gov.uk/courts/london-collection-and-compliance-centre

This has the potential of continuing to ruin lives as legally correct non-disclosures will be seen as lies by employers due to Disclosure Scotland issuing incorrect information. They need to be stopped!!
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I have exchanged many emails with Disclosure Scotland on this. For example:

Me: "So to confirm my conviction will never be spent until proof of payment for the compensation order component is provided to Disclosure Scotland? Furthermore if proof is provided I have to pay for a new application?"
DS: "Yes that is correct. The guidance is on the website explain how to provide proof when applying."

And also this:

"We have numerous cases where people have applied from England and provided us with proof of payment who live in England.

You can get in touch with the courts for proof of payment, a receipt from paying it or if you paid it via bank it will be on a statement.

This is the guidance in which we follow. Unless you can provide proof of payment then this will be going out on your disclosure."

I've been in discussions with Chris Stacey on how to approach this.
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I provided proof of payment of my compensation order and applied for a basic disclosure. The certificate came back with "The applicant has no convictions for disclosure"

I have confirmation from Disclosure Scotland that they keep a record of proof of payment so it is not required for each submission.

I am tempted to request another certificate to test whether they do indeed keep a record.
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Hi Stig,

This does raise an interesting point. All the blurb points to the Police Act s112 which allows them to issue the certificate. The contents are determined by the ROA 1974. Then this must apply to convictions only. If notification requirements are separate from the conviction itself for the determination of spent or not then it should not appear on a basic certificate. (Moderated - ......................). It just had the legal blurb followed by a Convictions section with "The applicant has no convictions for disclosure". Clearly if you state no convictions and the check comes back (Moderated ........................) then anyone looking at the certificate will know there must have been a conviction even if it isn't shown.

Post Edited By Moderator (Moderator) : 06/06/2014 12:00:01 (GMT+2)


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The ROA states www.legislation.gov.uk/ukpga/1974/53/section/4:

Effect of rehabilitation.

(1)Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid—
(a)no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction; and
(b)a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto.
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hi Aspire. Good to hear from you. I hope you're ok. I've finally removed the conviction from my basic disclosure so doing a lot better.

I have received a clean disclosure after submitting compensation order evidence.

I have just submitted another request but without providing compensation order evidence to test if they do indeed keep a record and consider the conviction spent. This one should come back clean too.

£75 it's cost me to test their systems. I should invoice them!!
GO


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