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29 Nov 2023

Changes to the spent conviction rules

With new legislation in place around the length of time it takes for some offences to become spent, Jessica Maguire explains what employers need to know.

The Rehabilitation of Offenders Act 1974 introduced the concept of ‘spent’ convictions, whereby people with eligible criminal convictions and cautions could wipe the slate clean after a specified period of time. Successive legislation has broadened the scheme to enable more offenders to benefit from this statutory oblivion. Part 11 of the Police, Crime, Sentencing and Courts Act 2022 (PCSA) – which came into force on 28 October 2023 – continues this tradition but introduces important changes that HR teams should be aware of.

Collectively, these changes significantly reduce, for most offences, the time for convictions to become spent, while extending the scheme to those sentenced to imprisonment for at least four years. While the changes benefit, for instance, young people with minor cautions or convictions seeking to enter higher education, those with spent convictions hoping to embark on careers in the financial sector or regulated positions were clearly not at the forefront of policymakers’ minds.

Under the Rehabilitation of Offenders Act, a spent conviction does not need to be disclosed to most employers or education providers. Organisations are prohibited from requesting information about spent convictions or cautions, unless in specific circumstances. The ‘exceptions order’ details those roles that may require an individual to disclose a spent conviction or caution; for instance, working with children or vulnerable groups of people or working in the legal or financial sectors, which usually need a standard or enhanced Disclosure and Barring Service (DBS) certificate.

Spending periods 

The PCSA changes mean that both a community order and a youth rehabilitation order will become spent at their expiry, abolishing the additional year or six months respectively that were previously required to have elapsed before either sanction was spent.

For those sentenced to imprisonment of one year or less, their conviction is spent 12 months after the expiry of the term of their sentence (or six months for those under 18). For a sentence of imprisonment between one and four years, meanwhile, a conviction becomes spent after the sentence period is complete plus four years, compared with seven years previously.

In the biggest change, the PCSA expands the scope of eligible offences that can become spent to include sentences of imprisonment of more than four years. Under this extension, which is retrospective, a sentence becomes spent at its expiry plus seven years.

Schedule 18 of the Sentencing Act 2020 has not been amended by the PCSA, however. Therefore, the types of offences that it deems to be ineligible, and thus are never spent, remains. Unsurprisingly, these are offences of violent crime, sexual offences and terrorism.

Filtering 

In some cases, especially where an individual is applying for a regulated role, a conviction becoming spent is not always the main objective. In 2020, the Supreme Court was responsible for a significant change in the filtering process, a regime the PCSA has not sought to alter any further. Instead of establishing when a conviction becomes spent for the purposes of a basic DBS certificate, the filtering system establishes when disclosure of a conviction is no longer required by law.

Reprimands, final warnings and youth cautions received when a youth (under 18 years) are removed from standard and enhanced checks immediately, regardless of the offence. Adult cautions are removed from a standard and enhanced DBS check if six years have passed and they are not classified as a specified offence.

An individual convicted at the age of 18 or over will only have their conviction filtered, meaning that it will not appear on a standard or enhanced check, if the following three criteria apply:

  • 11 years have passed since the date of the conviction;
  • they did not receive a prison sentence (immediate custody or suspended); and
  • the conviction was not for a specified offence.

The same three-stage criteria apply for an individual who receives a conviction under the age of 18, although the time period required to have elapsed before the conviction becomes filtered is five and a half years.

Missed opportunity 

The PCSA reforms regarding spent convictions will open many doors of opportunity for those who, after serving lengthy terms of imprisonment in the past for certain offences, have been either dissuaded or inhibited from applying for job opportunities.

Unfortunately, we remain some way off from the system being entirely focused on rehabilitating all offenders. For as long as the filtering system automatically discloses cautions and convictions on standard and enhanced certificates rather than taking a case-by-case approach, we continue to exclude a swathe of individuals from various career paths, making it tougher in particular to enter regulated sectors such as the law and finance. It leaves individuals with little option than to apply to delete and remove the record entirely rather than await the development of a system that discloses these records only when very necessary.

This article was originally published in People Management on the 29th November 2023.

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