WorkLife

Our thoughts on the world of employment law - and beyond.

Changes to spent convictions regime introduced on 10 March

Changes came into force yesterday to amend the Rehabilitation of Offenders Act 1974 (RoA).  The overall effect of the amendments is to reduce the rehabilitation periods after which those convicted of particular crimes can claim to have a clean record. 

The RoA provides (in broad terms) that those convicted of a criminal offence who do not reoffend during a specified period are deemed rehabilitated and their convictions “spent”.  A person who is deemed to be rehabilitated is treated as though they did not commit the act in the first place, and therefore they will not generally be required to declare the spent conviction to a prospective employer.  This is the case even where there is a specific request for that information or where there is a clear contractual requirement to disclose.  The time which must elapse before a conviction is spent depends on the length of sentence imposed, not the nature of the offence itself.  Unless an exception applies, refusals to hire, or dismissals based on a failure to acknowledge or disclose a spent conviction will potentially be unlawful. There are, of course, excepted occupations (over seventy of them), including professions (lawyers, doctors, accountants) and those working with children. Under the exceptions regime, applicants may legitimately be asked whether they have any spent convictions, provided the questioning is for the purpose of assessing the applicant’s suitability for the relevant occupation. 

The new regime in force from 10 March introduces a number of changes, with a broad thrust towards reducing the scope of rehabilitation periods.  The only convictions which will never become spent are those involving a custodial sentence of over 4 years, or cases where an individual has received a public protection sentence.  In addition, rehabilitation periods for custodial sentences and community orders are now assessed based on the period of the sentence (including any time spent on licence) plus an additional specified period, rather than all rehabilitation periods starting from the date of conviction as is currently the case. 

The rehabilitation periods after which a sentence is deemed to be spent are lowered for both adults and young offenders.  So, for example, under the previous regime a custodial sentence of between thirty months and four years was deemed never to be spent, but now will be treated as spent after seven years (beginning with the day on which the sentence, including any period on licence, is completed).  Those sentenced for between six and thirty months have a reduced rehabilitation period dropping from ten years (from the date of conviction) to four years (from the date of completion of the sentence, including any licence period), and those sentenced for up to six months now have a rehabilitation period of two years rather than seven.  Those granted an absolute discharge have no rehabilitation period at all, rather than the previous period of six months.  The government has produced new guidance setting out the full details. [Please click here to read the guidance]   

The stated public policy aim behind the change is to increase the numbers of ex-offenders getting back into work and thus potentially cut re-offending rates (government research suggests that those who gain work are less likely to r-eoffend): critics have argued strongly that it prevents employers from gaining a true and full picture of prospective staff.

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