Scullion News & Resources
By Michael Stewart – Solicitor Criminal Defence & Road Traffic Law
Being accused of a crime can be very overwhelming. First things first, being accused of a crime is not the same as being convicted. You only receive a conviction if you either plead guilty or are found guilty.
A common concern is whether this will leave you with a permanent “criminal record.” The answer is not straightforward. What counts as a criminal record depends on the type of offence, how the case is dealt with, and the stage the proceedings reach.
In Scotland, criminal records are maintained by the Police National Computer (PNC), the Criminal History System (CHS), and by Disclosure Scotland, which governs what information can be revealed to employers, regulatory bodies, and other organisations.
A criminal record does not only mean a prison sentence or a serious conviction- it can also include minor matters, depending on how they were handled.
Convictions that take place in court are recorded. Other disposals, such as police warnings or fiscal fines, may also appear in certain types of disclosure. The impact on you will therefore depend not just on what happened, but on what level of disclosure a future employer or other body is entitled to request.
Road traffic offences are a good example of how varied the system can be. If you are prosecuted in court and convicted, for example of drink driving or dangerous driving, this is recorded as a criminal conviction.
It will appear both on the PNC and on your driving licence record. For less serious offences, such as speeding, the police may issue a conditional offer of a fixed penalty. If you accept and pay, the matter does not go to court. This is not treated as a criminal conviction, but the penalty points will be endorsed on your driving licence, and the fixed penalty can appear on your driver record for insurance and licensing purposes.
The police have powers to issue recorded police warnings for certain minor offences. A warning is not a criminal conviction, but it is entered into the police database. It remains active for two years, during which time it can be taken into account if there is further offending and may appear on higher-level Disclosure Scotland checks.
After that period, it is treated as spent, although the police will still keep an internal record. The impact therefore depends on the nature of the offence, how long ago it took place, and the level of disclosure being requested.
Sometimes, the Procurator Fiscal may decide that instead of prosecuting in court, a person should be offered diversion from prosecution. This is usually for less serious matters and often involves the person undertaking support, counselling, or engaging with social work.
If diversion is successful, there is no prosecution and no conviction. While the fact of diversion may be held on record by the Crown Office and Procurator Fiscal Service, it is not classed as a criminal conviction and usually does not appear on disclosure checks.
The system is complex because different outcomes carry different recording consequences. An admission of guilt followed by a fixed penalty is treated differently from a court conviction. A recorded warning is not the same as diversion. What shows up on a higher-level disclosure check may not appear on a basic disclosure check.
Another example is an absolute discharge at court. This is a unique outcome and is only given in exceptional circumstances. It is used where the offence is proved, but the court decides that no punishment is appropriate.
An absolute discharge is treated differently depending on the level at which the offence is dealt with. At summary level, which covers less serious offences, an absolute discharge brings the matter to an immediate end and no conviction is formally recorded.
At solemn level, which covers more serious offences, the court may still note the outcome on record, even though no punishment is imposed. Whether a conviction appears can therefore depend on how serious the court considers the offence and the level at which it is prosecuted.
An absolute discharge brings the matter to an immediate end and, under the Rehabilitation of Offenders Act 1974, it is treated as spent straight away. While it generally does not have to be disclosed, there are exceptions. It may still appear on higher-level Disclosure Scotland checks or be taken into account in future proceedings.
If you have been accused of a crime, it is vital to get advice as early as possible. The decision whether to accept a fixed penalty, challenge a charge in court, or agree to a diversion scheme can have long-term consequences for your record and your future.
At Scullion Law, our team can advise you on your situation and guide you through the process. Contact us today if you have been accused of a crime. We can help protect your reputation and your future.
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