Guernsey Business School

 

Breakfast Seminar .

 

Rehabilitation of Offenders

 

Basic principles

 

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 UK legislation are therefore not technically spent.

 

 

Rehabilitation Periods

 

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.

 

 

 

 

 

 

When convictions become spent

 

                     Time it takes            Time it takes                                                        to become spent         to 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

 

 

                     Time it takes            Time it takes                                                        to become spent         to become spent

                           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

 

Others

 

Any sentence imposed by a court outside of the Bailiwick shall be treated as a sentence of one of the descriptions mentioned in the Guernsey schedule which most nearly corresponds to the sentence imposed.

 

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 Guernsey.

 

Useful reading

 

In order to see how UK offences match with their Guernsey equivalent you are strongly recommended to download a copy of  “ Home Office: The Rehabilitation of Offenders Act 1974 and cautions, reprimands and final warnings” from http://www.homeoffice.gov.uk/cpd/sou/rehabcon.htm

 

Criminal Records Bureau

 

In the UK the criminal Records Bureau is due to come on line late in 2002.

 

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.

 

Cautions

 

The UK regulations concerning cautions are set out. UK applicants may well be familiar with these regulations. The UK caution is not covered by Rehabilitation of Offenders law. This can create considerable problems as in Guernsey cautions will be within the scope of the legislation.

 

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.

 

Existing Home Office Guidance is silent as to any obligation on the offender to disclose the caution when applying for a job. Whether and, if so, how this omission is rectified will depend very much on the outcome of this consultation.

 

Cautions, reprimands and final warnings are not criminal convictions and so are not dealt with by the UK Act. So if someone from the UK is asked in Guernsey whether they have cautions, reprimands or final warnings they may provide information that they need not have to.

 

It should be made clear to those from the UK that under Guernsey law a police caution becomes spent after six months. Therefore they need only provide details if the caution is not spent.

 

We need to be careful what we ask candidates from the UK. If we were to ask if they have a “criminal conviction” they may answer no believing that a caution is not a conviction and therefore need not be disclosed.. Sometimes people are asked if they have a “criminal record”. This is a less precise term, but it is usually understood to mean convictions. So people who are asked if they have a 'criminal record' may also answer 'no' if they have no convictions.

 

If we want to include cautions in our investigation we must make it clear to the UK candidate exactly what we mean.

 

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.)

 

Disqualifications

 

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.)

 

Penalty Points

 

A UK endorsement is not a 'disability, prohibition or other penalty' within the meaning of the Act, and therefore it cannot affect the rehabilitation period of a motoring conviction. So, for example, if a motorist is fined for drink driving and has his or her licence endorsed, the rehabilitation period would be five years (the length applicable to the fine) rather than 11 years (the length of time before a driver convicted of drink driving is entitled to a clean driving licence in the UK).

 

Further Convictions

 

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, (Royal Court) then neither conviction (even if the first one is for a minor offence) will become spent until the rehabilitation periods for both  offences are over. (For example, if someone had received a two year probation order, then one year later was fined for a serious offence, both convictions would have to be disclosed until the fine became spent.) If the further conviction leads to a prison sentence of more than 2 1/2 years, neither conviction will ever become spent.

 

Once a conviction becomes spent, it remains spent, even if a person is convicted of other offences later.

 

Criminal Records

 

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.

 

 

Benefits Of The Act In Applying For Jobs

 

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.

 

Applying For Insurance

 

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.)

 

 

Civil Proceedings

 

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.

 

Criminal Proceedings

 

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.

 

Confidential Information

 

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.

 

Exceptions To The Act

 

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.

 

Going Abroad

 

The Act only covers Britain. Other countries have their own rules about those they will give visas and work permits to. Embassies or overseas employment agencies should have information about this.

 

Assessing of Risk re Rehabilitation of offenders

 

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.

 

Conclusion

 

This is an introduction to a fairly complicated matter made all the more complicated by the requirement to match UK (and other) sentences to the Guernsey equivalent.

 

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