Proposed Changes to the Environmental Regulation (Scotland) Guidance on Public Participation and Fit and Proper Person Test

Criminal convictions

In 2018, we published Guidance On Who Can Hold an Authorisation: ‘In Control’ and ‘Fit and Proper Person’ Tests which explains how we decide whether you are a ‘fit and proper person’ (FPP) to hold or continue to hold an environmental authorisation.

Currently, in the section on criminal convictions, we state that for most activities we will only take convictions for environmental offences into account, and we will ask applicants to declare any convictions for environmental offences as part of their application.  However, for certain activities that are vulnerable to misuse, the guidance indicates convictions for non-environmental offences may be significant when considering an overall picture of the applicant.

Based on our experience to date, and to be consistent with other UK agencies, we've reviewed our approach to criminal convictions. We intend to ask all applicants to declare if they have convictions for relevant offences (“relevant convictions”), which will include convictions for both environmental and non-environmental offences, as part of their application.

The guidance contains some examples of the non-environmental offences that we are likely to consider relevant.  They are:

• Offences that appear on Schedule 4 of the Proceeds of Crime Act 2002 are considered ‘lifestyle’ offences and may indicate a history of using crime for profit making.

• Dishonesty, for example, fraud and theft.

• Violence or abusive behaviour (particularly if towards public officials).

We will publish a full list of relevant offences on our website following this consultation and once the revised guidance is published.

Proposed Amendments to criminal convictions

We're proposing to replace the existing text with the following:

If you or a relevant associate have a criminal record, it doesn't necessarily mean you will not get a permit or registration. However, we will take convictions into account when making our decision.  

The circumstances of the conviction and what it tells us about the person in the context of our fit and proper outcomes is important. We will take into account:

• The nature and significance of the offences.
• The actual sentence or disposal given for the convictions.
• How recent the convictions were. 
• Any mitigating circumstances.

We will always take convictions for environmental offences into account when determining the suitability of an applicant to hold an authorisation. However, non-environmental convictions may be significant and, on occasions, more significant, when considering our overall view of the applicant. Subject to the Rehabilitation of Offenders Act 1974 we will, therefore, ask applicants to declare if they, or any relevant associates, have relevant convictions, which include convictions for both environmental and non-environmental offences, as part of their application.

Assessment of the significance of any relevant convictions will be carried out on a case-by-case basis, having regard to those convictions we consider relevant to the nature of the activity and to ensure they meet our ‘fit and proper’ criteria.

Examples of the types of non-environmental offences that we are likely to consider relevant include:

• Offences that appear on Schedule 4 of the Proceeds of Crime Act 2002 are considered ‘lifestyle’ offences and may indicate a history of using crime for profit making.
• Dishonesty, for example fraud and theft.
• Violence or abusive behaviour (particularly if towards public officials).

We will keep the offences which we consider to be relevant to assessing a person's fitness under review. We will post the list of relevant offences on our website.

Where we have information to suggest that an individual applicant or relevant associate may have convictions for relevant offences, we may request a basic disclosure certificate after the application has been submitted.

Convictions for environmental and non-environmental offences may indicate a risk that the applicant would not comply with the conditions of the permit or registration or would abandon environmental liabilities for others to remediate. They may also indicate that the regulated activity is at risk of being used as a front for another illegal activity.   

Convictions for violent offences may indicate that SEPA colleagues could be put at risk of harm. If we consider that our colleagues may be unable to safely assess whether an operator is complying with an authorisation, the environment is also put at risk, and we would be unlikely to be satisfied that the person would comply with the conditions of an authorisation.   

Access to criminal records is restricted under the Rehabilitation of Offenders Act 1974 and we will generally not take ‘spent’ convictions of individuals into account when applying the Fit and Proper Person Test.   

If you're subject to outstanding criminal charges for an environmental offence, we may seek to defer our decision on your application for an authorisation until the courts have determined the outcome of those charges.