The Rehabilitation of Offenders Act 1974 (c.53) of the
UK Parliament
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative supremac ...
enables some
criminal
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
conviction
In law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of "not proven", which is consid ...
s to be ignored after a
rehabilitation
Rehabilitation or Rehab may refer to:
Health
* Rehabilitation (neuropsychology), therapy to regain or improve neurocognitive function that has been lost or diminished
* Rehabilitation (wildlife), treatment of injured wildlife so they can be retur ...
period. Its purpose is that people do not have a lifelong blot on their records because of a relatively minor offence in their past. The rehabilitation period is automatically determined by the sentence. After this period, if there has been no further conviction the conviction is "spent" and, with certain exceptions, need not be disclosed by the ex-offender in any context such as when applying for a job, obtaining
insurance
Insurance is a means of protection from financial loss in which, in exchange for a fee, a party agrees to compensate another party in the event of a certain loss, damage, or injury. It is a form of risk management, primarily used to hedge ...
, or in
civil
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
proceedings. A conviction for the purposes of the ROA includes a conviction issued outside Great Britain (see s1(4) of the 1974 Act) and therefore foreign convictions are eligible to receive the protection of the ROA.
Under the
Legal Aid, Sentencing and Punishment of Offenders Act 2012
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is a statute of the Parliament of the United Kingdom enacted by the coalition government of 2010-2015, creating reforms to the justice system. The bill for the act was intro ...
(section 139), the Act as it applies in England and Wales was updated to provide new rehabilitation periods – with most convictions becoming spent in a shorter amount of time. For adults, the rehabilitation period is one year for community orders, two years for custodial sentences of six months or less, four years for custodial sentences of over six months and up to and including 30 months, and seven years for custodial sentences of over 30 months and up to and including 48 months. Custodial sentences of over four years will never become spent and must continue to be disclosed when necessary. Under the 2012 Act, the rehabilitation period starts on the date of conviction in the case of fines, but for custodial sentences it starts after the offender has completed the sentence (including time on licence) and for community orders it starts when the order ceases to have effect. For example, an offender who received a two-year prison sentence will see the conviction spent six years from date of conviction (two year sentence plus four year rehabilitation period). For offenders who are under the age of 18 when convicted, the rehabilitation period is half that of an adult.
A conviction that is spent under British law may not be so considered elsewhere. For example, criminal convictions must be disclosed when applying to enter the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
; spent convictions are not excluded for US immigration purposes under US law.
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 bribery.
Exemptions
Certain professions and employments are exempt from the Act so that individuals are not allowed to withhold details of previous convictions in relation to their job when applying for positions in similar fields. These professions include:
* Those working with children and other vulnerable groups, such as teachers and social workers
* Those working in professions associated with the justice system, such as solicitor or barrister, police, court clerk, probation officer, prison officer and traffic warden
* Doctors, dentists, pharmaceutical chemists, registered pharmacists, pharmacy technicians, nurses or paramedics
* Accountants
* Veterinary surgeons
* Managers of
unit trust
A unit trust is a form of collective investment constituted under a trust deed.
A unit trust pools investors' money into a single fund, which is managed by a fund manager. Unit trusts offer access to a wide range of investments, and depending on ...
s
* Anyone applying to work as an officer of
the Crown
The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
* Employees of the
RSPCA
The Royal Society for the Prevention of Cruelty to Animals (RSPCA) is a charity operating in England and Wales that promotes animal welfare. The RSPCA is funded primarily by voluntary donations. Founded in 1824, it is the oldest and largest a ...
or
SSPCA whose duties extend to the humane killing of animals
* Any employment or other work normally carried out in bail hostels or probation hostels
* Certain officials and employees from government and public authorities with access to sensitive or personal information or official databases about children or vulnerable adults
* Any office or employment concerned with providing health services which would normally enable access to recipients of those health services
* Officers and other persons who execute various court orders
* Anyone who as part of their occupation occupies premises where explosives are kept under a police certificate
* Contractors who carry out various kinds of work in tribunal and court buildings
* Certain company directorships, such as those for banks, building societies and insurance companies
* Certain civil service positions are excluded from the Act, such as employment with the
Civil Aviation Authority
A civil aviation authority (CAA) is a national or supranational statutory authority that oversees the regulation of civil aviation, including the maintenance of an aircraft register.
Role
Due to the inherent dangers in the use of flight vehicles, ...
and the
UK Atomic Energy Authority
The United Kingdom Atomic Energy Authority is a UK government research organisation responsible for the development of fusion energy. It is an executive non-departmental public body of the Department for Business, Energy and Industrial Strategy ...
.
[http://www.yourrights.org.uk/yourrights/privacy/spent-convictions-and-the-rehabilitation-of-offenders/exceptions-to-the-roa.html The full list of professions exempt from the Rehabilitation of Offenders Act 1974]
* Taxi drivers and other transport workers.
* Butlers and other domestic staff
Aside from these trades and professions, the law also exempts organisations if the question is asked:
* By or on behalf of
The Football Association
The Football Association (also known as The FA) is the Sports governing body, governing body of association football in England and the Crown Dependencies of Jersey, Bailiwick of Guernsey, Guernsey and the Isle of Man. Formed in 1863, it is the ...
,
The Football League
The English Football League (EFL) is a league of professional football clubs from England and Wales. Founded in 1888 as the Football League, the league is the oldest such competition in the world. It was the top-level football league in Engla ...
or
Premier League
The Premier League (legal name: The Football Association Premier League Limited) is the highest level of the men's English football league system. Contested by 20 clubs, it operates on a system of promotion and relegation with the English Foo ...
to assess someone's suitability to work as, or supervise or manage, a steward at football matches.
* By the
Financial Conduct Authority
The Financial Conduct Authority (FCA) is a financial regulation, financial regulatory body in the United Kingdom, but operates independently of the UK Government, and is financed by charging fees to members of the financial services industry. The ...
,
Prudential Regulation Authority and certain other bodies involved in finance, when asked to assess the suitability of a person to hold a particular status in the financial and monetary sectors.
* To assess a person's suitability to adopt children, or a particular child, or a question about anyone over the age of 18 living with such a person.
However, disclosure of a criminal conviction where necessary, i.e. not covered by the Rehabilitation of Offenders Act 1974, or after the 2014 change, which introduced protected convictions, does not automatically bar a particular individual from employment in a given profession. For instance, notable cases include Gary Bell, a former fraudster turned high-profile successful barrister and Queen's Counsel; and Selwyn Strachan, who was convicted of murder in Grenada and served a sentence of 40 years. Similar cases can also be found in both education, medicine, domestic employment, as well as other profession. In short, each case is determined on its own merits even where disclosure is necessary because the conviction either cannot become spent or is exempt from the protections of the Act.
ROA where profession or employment is not subject to the exceptions or exemptions
For purposes of employment in a field that is covered by the Rehabilitation of Offenders Act 1974 and not subject to the Exceptions Order, once a conviction is spent, the person is considered rehabilitated and the Act treats the person as if they had never committed an offence. As a result, the conviction or caution in question does not need to be disclosed by the person when applying for most jobs, educational courses, insurance, housing applications or other purposes, unless the role applied for is exempt from the Act. If a role is covered by the Act, it is unlawful for an employer to refuse to employ a person (or dismiss an existing employee) because the individual has a spent caution or conviction. It is also unlawful for an organisation to knowingly carry out (or enable someone else to obtain) a Disclosure and Barring Service (DBS) check on a person for a role which is covered by the Act. If a role is covered by the Act, the employer is only legally entitled to carry out a basic criminal check known as a Basic Disclosure (provided by DBS) which will reveal only unspent convictions.
Applications for adoption, fostering and for firearms certificates
There are also a number of proceedings before a "judicial authority" (widely defined) that are excluded from the Act, and where spent convictions can be disclosed. These include applications for adoption or fostering, and for firearms certificates.
Adoption and foster services are required to discuss with applicants if they have a criminal record and whether this raises concerns about their suitability to be a parent through adoption. All applicants have to have Disclosure and Barring Service (DBS) and other statutory checks undertaken. No convictions are regarded as spent for the purpose of adoption. DBS checks will record all past convictions, cautions and bind overs. Applicants will not be automatically excluded if they have a criminal record, though "
fences against children or offences of a serious nature" will generally disqualify applicants.
Role of previous convictions in criminal proceedings
Previous convictions can be cited in criminal proceedings, even if they are spent. However, the Lord Chief Justice and the Home Office has advised the Courts that spent convictions should not be mentioned except in very special circumstances.
Under the Rehabilitation of Offenders Act 1974 (the Act) an offender who is sentenced to a period of 48 months' imprisonment or less (or a non-custodial sentence) becomes rehabilitated once a certain period of time specified by the Act has passed. This means that the offender is treated for all purposes in law as though he or she had not committed or been charged or prosecuted or convicted of the offence.
Since 8 December 2008 cautions, conditional cautions, reprimands and warnings are all subject to the provisions of the Act.
By virtue of section 7(2)(a) of the 1974 Act rehabilitated or spent convictions are admissible in criminal proceedings where they are relevant to "the determination of any issue". This is a narrow exception, which allows a sentencing court to have regard to all previous convictions including spent convictions in determining the appropriate sentence. However, there are special rules about how spent convictions are to be presented in court. These are found in the Criminal Practice Directions
013EWCA Crim 1631 at CPD Evidence 35A: Spent Convictions which provides that:
* The court and advocates should avoid mention of a spent conviction wherever it can reasonably be avoided (Practice Direction paragraph 35A3);
* Any spent convictions shown on a record of previous convictions handed to the court should be marked as such (Practice Direction paragraph 35A3); and
* No reference should be made to the spent conviction in open court without the authority of the judge, which should not be given unless it would be in the interests of justice to do so (Practice Direction paragraph 1.6.6).
Role of previous convictions in sentencing proceedings
The
Criminal Justice Act 2003
The Criminal Justice Act 2003 (c. 44) is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland an ...
, s. 143(2) provides that:
As noted by some academic scholars, this provision creates "obvious tension". For instance, while this section indicates that a court is bound ('must') to treat each previous conviction as an aggravating factor, the mandatory words are somewhat softened by the later phrase, "if the court considers that it can reasonably be so treated". This provision in the Criminal Justice Act 2003 is also in tension with its "limited retributivism" theory of punishment, which underpins the sentencing framework in England and Wales. This is because, generally, increased punishment for subsequent offences based on previous offending is contrary to retributive principles of punishment and is more closely aligned with utilitarian theories of punishment. Further, in practice (and in contrast to the United States Sentencing Guideline grid, which governs sentencing practice and policy in the federal system) previous convictions, whether spent or unspent (and there is a ten-year time limit for consideration of adult convictions), do not lead to a linear increase in sentencing in England and Wales.
UCAS admissions and university applications
Applicants to university courses are only required to declare their relevant criminal convictions, cautions and verbal bind overs on their
UCAS
The Universities and Colleges Admissions Service (UCAS ) is a UK-based organisation whose main role is to operate the application process for British universities. It operates as an independent charity, funded by fees charged to applicants an ...
forms. UCAS applicants are required to declare only 'relevant' criminal convictions, 'relevant' being defined as offences against the person, whether of a violent or sexual nature, or offences involving supplying controlled drugs or substances where the conviction concerns commercial drug dealing or trafficking. Non-relevant criminal convictions, i.e. those not specifically defined as relevant, should not be declared unless specifically required on the application; applications which require disclosure of non-relevant criminal convictions are medicine, teaching and jobs related to or involving children. Criminal convictions are divided into two categories, relevant and non-relevant, and both can be considered spent under the act; once a conviction is spent, whether a conviction is relevant or non-relevant, it should not be disclosed on the UCAS application. More recently, the question concerning criminal convictions is no longer mandatory on UCAS forms and will not generate a hold. The impetus for this change is to broaden the availability of education and access to education. Spent criminal convictions are protected by s. 2 and s. 56 of the Data Protection Act 1998 and it is also a criminal offence to disclose an individual's spent criminal conviction.
Rehabilitation and actions for libel under English law
Under Section 8 of the Act, if a person can prove that the details of a spent conviction were published with a primary motive of causing damage to the subject (
malice), then the publisher may be subject to
libel
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
damages regardless of whether the details were true or not. This applies where the publisher is relying on a defence of
qualified privilege
The defence of qualified privilege permits a person in a position of authority or trust to make statements or relay or report statements that would be considered slander and libel if made by anyone else. In New Zealand and Ontario, for instance, ...
or truth (or justification or fair comment in the case of an offence committed before 2013).
According to reference book ''Media and the Law'', although British media remain free to publish the details of spent convictions, provided they are not motivated by malice, they generally avoid mention of such convictions after rehabilitation.
On one hand, in 2003 media barrister
Hugh Tomlinson
Hugh Richard Edward Tomlinson KC (born January 1954 in Leeds) is a barrister in England and Wales, an English translator of the philosopher Gilles Deleuze and a founding member of Matrix Chambers. He is a specialist in media and information ...
QC was of the opinion that "in practice, the law of libel provides no sanction against the publication of spent convictions". On the other hand, Tom Crone, a leading lawyer who has worked for high-profile news outlets and authored the reference book ''Law and the Media'' (published after the passing of the Defamation Act 2013 but before its coming into force), has argued that pursuant to section 8 of the ROA, which provides that where publication of a spent conviction is "made with malice", a defendant to libel proceedings shall not be entitled to reply on a plea of justification. In other words, where malice is proved the claimant's crimes will be treated for the purposes of his libel action as if they had never occurred. Malice is defined in English law as "published with an irrelevant, spiteful or improper motive". This is in stark contrast to the United States where media outlets may report on even expunged convictions, which are a legal nullity (meaning they legally do not exist any more).
In England and Wales, in most instances, claimants have been successful in achieving settlements prior to litigation with various news firms where they can establish that the publication of a spent conviction was motivated by malice. Additionally, many individuals have been successful in requesting removal of spent convictions from search engines and other public forums after the
CJEU
The Court of Justice of the European Union (CJEU) (french: Cour de justice de l'Union européenne or "''CJUE''"; Latin: Curia) is the judicial branch of the European Union (EU). Seated in the Kirchberg quarter of Luxembourg City, Luxembourg ...
's recent "
right to be forgotten
The right to be forgotten (RTBF) is the right to have private information about a person be removed from Internet searches and other directories under some circumstances. The concept has been discussed and put into practice in several jurisdiction ...
" decision.
Police cautions
The Act was extended to cover
police caution
A police caution is a formal alternative to prosecution in minor cases, administered by the police in England and Wales. It is commonly used to resolve cases where full prosecution is not seen as the most appropriate solution. Accepting a caution ...
s in 2008. A caution is considered to be spent as soon as it is given.
2014 amendments
The amendments to the Rehabilitation of Offenders Act 1974 made by the
Legal Aid, Sentencing and Punishment of Offenders Act 2012
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is a statute of the Parliament of the United Kingdom enacted by the coalition government of 2010-2015, creating reforms to the justice system. The bill for the act was intro ...
in England and Wales came into effect on Monday 10 March 2014 and changed the way some rehabilitation periods are set so that they are fairer and better reflect the seriousness of the sentences imposed.
Under the new system, rehabilitation periods for community orders and custodial sentences comprise the period of the sentence plus an additional specified period, rather than all rehabilitation periods starting from the date of conviction as it was under the old regime. So, for example, an adult offender sentenced to two-and-a-half years' custody, who would previously have had to declare their criminal conviction for ten years from the date of conviction, now has to disclose their conviction for the period of the sentence plus a further four years (giving a total rehabilitation period of 6.5 years).
Under the reforms, the rehabilitation periods changed to:
For custodial sentences:
For non-custodial sentences:
As with the previous scheme, the above periods are halved for persons under 18 at date of conviction (except for custodial sentences of up to 6 months, where the buffer period will be 18 months for persons under 18 at the date of conviction). The changes were made "to finally tackle our stubbornly high reoffending rates that currently see almost half of all prisoners commit further crime within a year of release". An online calculator of whether a conviction is spent can be found at the Unlock for People with Convictions website.
See also
*
Right to be forgotten
The right to be forgotten (RTBF) is the right to have private information about a person be removed from Internet searches and other directories under some circumstances. The concept has been discussed and put into practice in several jurisdiction ...
References
External links
*
Ministry of Justice Guidance to the ROA
{{UK legislation
United Kingdom Acts of Parliament 1974