Written by Brabners LLP
The Law
Under the Rehabilitation of Offenders Act 1974 (“ROA”), job applicants are not required to disclose “spent” convictions, although employers still have the right to ask applicants about any unspent convictions during the recruitment process. This is subject to a few limited exceptions for certain professions where spent convictions do still have to be disclosed. The idea is that once a conviction is spent, the individual should be treated as rehabilitated and so should not have to disclose their historic convictions.
As of 28 October 2023, the government has amended the ROA to reduce the rehabilitation period (i.e the period of time after which a conviction is deemed to be spent). The changes reduce the rehabilitation period for less serious offences (as long as no further offences are committed in that time) and introduce a rehabilitation period for custodial sentences of more than four years to become “spent”. Offenders who have committed serious sexual, violent, or terrorist offences are excluded from these changes.
These reforms reflect an effort to strike a balance between public safety and the rehabilitation of offenders, recognising that individuals who have committed less serious offences should not be unduly burdened by the long-lasting consequences of their past actions. The amendments acknowledge the importance of giving individuals with a criminal record a fair chance at reintegrating into society by facilitating their access to employment opportunities. However, the exclusion of serious sexual, violent, or terrorist offenses underscores the government’s commitment to safeguarding public welfare and maintaining stringent measures for those who pose a significant risk to society. Employers, while still entitled to inquire about unspent convictions, must adhere to the revised disclosure periods outlined in the amended legislation, fostering a more rehabilitative approach to the reintegration of individuals with a criminal history into the workforce.
The previous rehabilitation periods (i.e the period after which the conviction was deemed to be spent) were:
- Community Order – one year beginning with the last day on which the order had effect
- Custody of six months or less – two years
- Custody of more than six months and up to 30 months – four years
- Custody of more than 30 months and up to four years – seven years
- For offences with custodial sentences of more than four years, the conviction was never spent
The new rehabilitation periods (i.e the period after which the conviction is deemed to be spent) are as follows:
- Community Order – the last day on which the order had effect
- Custody of one year or less – one year
- Custody of more than one year and up to four years – four years
- Custody of more than four years – seven years
Comment
The government anticipate that the reforms will positively impact a large number of offenders, including nearly 125,000 people sentenced in 2022 alone.
These legislative changes significantly reduce the period of time after which people with certain criminal convictions are legally entitled to hold themselves out as having no criminal record history. Under the previous rules, some offenders were required to disclose their sentences for the remainder of their lives, even for crimes committed decades earlier, posing a significant obstacle to securing employment and rebuilding their lives. Now, custodial sentences of four years or more for less serious crimes become ‘spent’ after a seven-year rehabilitation period, provided no further offence is committed. In the event an individual reoffends during the rehabilitation period, individuals will have to disclose both their original and subsequent offences to employers for the duration of the longer rehabilitation period.
Employers are obligated to recognise these shortened rehabilitation periods. Once a conviction is spent, an individual should be treated as having committed no offence at all. Accordingly, employers should review and update their interview questions and application forms to ensure that they are not asking prospective employees to disclose convictions which are now deemed to be spent. Employers should also review their records and remove outdated information about their employees’ convictions from databases and personnel files.
This bulletin is for general guidance only and should not be used for any other purpose.
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