The UK Rehabilitation of Offenders Act 1974 enables some criminal convictions to become 'spent', or ignored, after a 'rehabilitation period'.
A rehabilitation period is a set length of time from the date of conviction.
After this period, with certain exceptions, an ex-offender is not normally obliged to mention the conviction when applying for a job or obtaining insurance, or when involved in criminal or civil proceedings.
The Act is more likely to help people with few and/or minor convictions because of the way further convictions extend the rehabilitation period.
It is an anomaly
that cautions are not included in the
The length of the rehabilitation period depends on the sentence given not the offence committed. For a custodial sentence, the length of time actually served is irrelevant: the rehabilitation period is decided by the original sentence. Custodial sentences of more than 2 1/2 years can never become spent.
if under 17 if 18 or over
Sentence when convicted when convicted
Imprisonment of
up to 6 months 3 ½ years 7 years
Imprisonment of
between 6 months and
2 ½ years 5 years 10 years
Fine, compensation,
probation, community
service, curfew orders
drug treatment and
testing, reparation
orders 2 ½ years 5 years
Absolute discharge 6 months 6 months
if 12,13 or 14 if 15, 16 or 17
Sentence when convicted when convicted
Detention and training
order of 6 months or
less 1 year after order ends 3 ½ years
detention and training
order of more than 6
months 1 year after order ends 5 years
Sentence Time it takes to become spent
Supervision, care order
conditions discharge and
bind over 1 year or until order ends
Attendance centre order 1 year after the order ends
Referral order once the order ends
Caution or no order made 6 months from date of conviction
For ex Service personnel prison sentences rehabilitation are the same as civilians. However, the following sentences also apply :
Cashiering, discharge with ignominy
Or dismissal with disgrace from
Armed Forces 10 years
Dismissal from Armed Forces 7 years
Detention 5 years
Note that a sentence of more than 2 ½ years can never be spent
Any sentence imposed by a court outside
of the Bailiwick shall be treated as a sentence of one of the descriptions
mentioned in the
It should be noted that to have a record
you needn’t have been to court i.e. if you plead guilty by letter or through an
advocate in
Useful reading
In order to see how
Criminal Records Bureau
In the
The Home Secretary announced in December 1998 that a Criminal
Records Bureau is to be established under the management of the United Kingdom
Passport Agency. This will facilitate implementation of Part V of the Police
Act 1997. This Part of that Act makes provision for three different levels of
criminal record check and the issue of three types of certificate:
· a criminal conviction certificate which will be
issued only to individuals, who will be able to choose whether to show it to
employers or anyone else who wishes to see it. A criminal conviction
certificate will show all convictions held at national level which are not
"spent" under the ROA but will not show "spent" convictions
or any cautions;
· a
criminal
record certificate which will be available for posts or
purposes which are exceptions to the ROA. The certificate will include details
of convictions, including convictions "spent" under the ROA and
cautions held at national level;
· an enhanced criminal record certificate which will be available more narrowly than the criminal record certificate. It will be available in respect of those applying for positions which involve regularly caring for, training, supervising or being in sole charge of persons aged under eighteen, for certain statutory licensing purposes and for those being considered for judicial appointments. Like the criminal record certificate, an enhanced criminal record certificate will contain information on spent and unspent convictions and all cautions held at national level but in addition will include information from local police records including relevant non-conviction information. The Act also contains provisions for these certificates to be made available for those caring for vulnerable adults.
The
The purposes of a police caution are:
· to deal quickly and simply with less
serious offenders;
· to divert them from unnecessary
appearance in the criminal courts; and
· to reduce the chances of their
re-offending.
Determining whether a caution is an appropriate way of dealing
with an offender therefore involves the police making a judgment as to the
nature of the offence and the offender in general. A caution should never be
considered for the most serious offences (several forces have adopted a system
of gravity factors suggested by the Association of Chief Police Officers (ACPO)
nor where there can be no reasonable expectation that this will curb offending.
Pattern
of Usage
The latest available figures show that 282,100 persons were
cautioned in 1997. This compares to 1,386,000 persons who were found guilty in
the courts. Requirements
Home Office circular 18/1994 stipulates that the following
conditions must be met before a caution can be administered:
· there must be evidence of the offender's
guilt sufficient to give a realistic prospect of conviction:
· the offender must admit the offence, and
· the offender must understand the
significance of a caution and give informed consent to being cautioned.
In explaining the significance of the caution the police must
ensure that the offender understands the implications. These are as follows:
· The caution will be recorded and may
influence the decision whether or not to prosecute if the person should offend
again (AC P0 guidance recommends that the caution should be disregarded for
such case disposal purposes once it is five years old.)
· If the offender should subsequently be
convicted of another offence the caution may be cited in court for the purposes
of sentencing.
Cautions,
reprimands and final warnings are not criminal convictions and so are not dealt
with by the UK Act. So if someone from the
It should be
made clear to those from the
We need to be
careful what we ask candidates from the
If we want to
include cautions in our investigation we must make it clear to the
Police records of cautions should be deleted after five years if there are no convictions on the record. (In practice, some police forces may retain records of cautions for much longer than this or indefinitely.)
If a person is disqualified (for example, from driving or from being a company director) at the same time as receiving another penalty, the longer rehabilitation period applies. (For example, if a motorist is banned from driving for seven years and fined - which takes five years to become spent -the rehabilitation period would be seven years, not five years.)
A
If a rehabilitation period is still running and the person concerned commits a minor offence (a 'summary offence that can only be tried in a magistrates court), the minor offence will not affect the rehabilitation period still running. The rehabilitation period for each offence will expire separately. (For example, if someone had received a two year probation order, then one year later was fined for a minor offence, the probation order would become spent before the fine. Therefore once the probation order was spent, only the fine would need to be disclosed until it became spent.)
However, if the
further offence is one that could be tried in the Crown Court, (
Once a conviction becomes spent, it remains spent, even if a person is convicted of other offences later.
A person's offence will still remain on record even after it has become spent - it will not be deleted. Records of 'reportable' offences (i.e. offences which can be tried in the Crown Court, whether or not they are) should be deleted after 20 years, unless there are further convictions or evidence of mental illness, indecency, drug trafficking or homicide. Records of 'non-reportable' offences should be deleted after 10 years.
Criminal records are generally kept confidential. Broadly, vetting is limited to protecting vulnerable people (The new data protection law and codes of practice have much to say about this as well as human rights legislation) to ensuring the probity of the administration of justice; and to matters of national security.
This means, for example, that private employers will not usually have access to criminal records. Applicants for taxi, heavy goods vehicle and passenger service vehicle licences should be vetted.
Applicants with a criminal record who are asked on an application form or at an interview whether they have any previous convictions can answer 'no' if the convictions are spent and the job applied for is not excepted from the Act. Under the terms of the Act, a spent conviction shall not be proper grounds for not employing - or for sacking - someone. (If on the other hand, job applicants do not disclose unspent convictions, if asked to do so, they may be found out, dismissed on the grounds of having deceived the employer - and possibly prosecuted.)
The Act does not provide any means of enforcing a person's right not to be refused employment (or entry into a profession) on the grounds of a spent conviction. If, however, an employee can prove that they have been dismissed for a spent conviction and they have been in employment for two years or more, they may be able to claim unfair dismissal under employment legislation.
Will the rejection of a person with a spent conviction infringe Article 14 of Human Right law?
We should insert some reference to consequences of not disclosing not spent convictions in our contract of employment and in the disciplinary procedure.
If the proposal form asks whether the applicant has any previous convictions, the answer can be 'no' if the convictions are spent. This is the case even if the conviction is relevant to the risk which the insurers will underwrite. (For example, spent motoring convictions are not required on a proposal form for motor insurance.)
In civil proceedings, no-one should be asked questions which might lead to disclosure of spent convictions. If such questions are asked, they need not be answered. This rule does not apply:
in civil proceedings relating to children (adoption, guardianship, wardship, marriage, custody, care and control, schooling);
when the court is satisfied that justice cannot be done unless evidence of spent convictions is admitted (NB anyone who has spent convictions can always consent to evidence being given about them);
if the proceedings involve a matter excepted from the Act
The rule on civil proceedings applies not only to ordinary courts, but also to arbitration proceedings, disciplinary proceedings before an administrative tribunal, and to a club committee which has powers to affect anyone's rights, privileges, obligations, or liabilities.
Previous convictions can be cited in criminal proceedings, even if they are spent. The Lord Chief Justice and the Home Office have, however, advised the courts that spent convictions should not be mentioned except in very special circumstances.
The Act makes it an offence for anyone with access to criminal records to disclose spent convictions unless authorised to do so. The Act makes it a more serious offence to obtain such information by means of fraud, dishonesty or bribe. The Data Protection Act 1984 as amended by the Criminal Justice and Public Order Act 1994, also makes it an offence to procure or supply confidential computer data.
It might be possible for a person with spent convictions to sue for libel anyone making allegations about spent convictions, if he or she can prove that the allegation was made with malice.
There are some situations in which people will be expected to declare their
convictions, even if they are spent. Some of the principal ones are:
Appointment to any post providing accommodation, care, leisure and recreational facilities, schooling, social services, supervision or training to people aged under 18. Such posts include teachers, school caretakers, youth and social workers, child minders.
Employment involving providing social services to elderly people, mentally or physically disabled people, alcohol or drug abusers or the chronically sick.
Appointment to any office or employment involving the administration of justice, including police officers, probation officers, traffic wardens.
Admission to certain professions which have legal protection (including lawyers, doctors, dentists, nurses, chemists, and accountants).
Appointment to jobs where national security may be at risk (for example, certain posts in the civil service, defence contractors).
Application forms for posts which are excepted from the Act should always make this clear, although some employers have been claiming posts are excepted when they are not.
If in doubt, seek advice.
The Act only
covers
Organisations are advised to develop their own policies and procedures that assess the risk involved in employing someone with a conviction that is not spent.
This requires
1 We ensure that staff involved in the recruiting process are trained to be aware of the law relating to rehabilitation of offenders and the process and procedures adopted in the organisation and in asking appropriate questions.
2 We need to assess which convictions are risky for most of our jobs. This can be time consuming but the organisation will be all the better equipped to deal with rehabilitation of offenders issues after the exercise. It is suggested that this exercise, rather than a blanket overview is an essential need for the finance industry due to possible human rights consequences.
3 We must behave towards those with convictions in a manner that encourages trust. Trust in that the applicant can state his or her convictions knowing that these would be treated in a professional and confidential manner. Trust in that the organisation creates an environment that allows for such matters to be treated in a professional and confidential manner.
4 One way of creating trust is to ask for convictions to be stated on a separate document (to be completed by all applicants) to the main application form and for that declaration to be secure in a sealed envelope. We could also state that the envelope would not be opened unless the applicant was short listed. In the event of the candidate not being short listed the unopened envelope would be returned to the candidate.
5 Consideration should be given for a member of staff to be given responsibility to assess whether the stated conviction would be an absolute bar to the personnel department proceeding with the application.
This is an
introduction to a fairly complicated matter made all the more complicated by
the requirement to match
The object of this seminar has been to make you aware of the main aspects of rehabilitation of offenders legislation and to provide ideas that will allow you to develop policies and practice in your own organisations.
Stephen John BSc(Econ) MSc MEd MBA MPhil
25 May 2002