It was for this reason that the Rehabilitation of Offenders Act 1974 was passed, introducing the concept of the spent criminal conviction. The Act set out specific rehabilitation periods depending on the sentence and, if there had been no further conviction since the original one, that conviction was considered “spent”.
A rehabilitated person is treated as if they had never committed an offence. As such, they don’t have to declare their convictions or cautions when applying for employment.
If an applicant has a spent caution, then unless an exception applies, an employer can’t refuse to employ them because of this. Similarly, an employer can’t dismiss them because they have a spent caution or conviction – unless there’s an applicable exception.
There are certain exceptions where, depending on the job for which the individual is apply, the conviction must still be disclosed, no matter how long ago it happened.
Changes to the disclosure time limits
In late October 2023, Section 193 of the Police, Crime, Sentencing and Courts Act 2022 came into force. This legislation reduces the time limits for convictions to become spent.
What’s changed?
The full list of rehabilitation periods and the changes brought into force by Section 193 can be found on the government web page https://www.gov.uk/guidance/rehabilitation-periods but by way of example, some of the changes are:
Former rehabilitation periods
|
Custodial sentence of over 4 years |
Never spent |
| A custodial sentence of more than 30 months and up to, or consisting of, 48 months | The end of the period of 7 years beginning with the day on which the sentence (including any licence period) is completed |
| A custodial sentence of more than 6 months and up to, or consisting of, 30 months | The end of the period of 48 months beginning with the day on which the sentence (including any licence period) is completed |
| A custodial sentence of 6 months or less | The end of the period of 24 months beginning with the day on which the sentence (including any licence period) is completed |
New rehabilitation periods
| A custodial sentence of more than 4 years | The end of the period of 7 years beginning with the day on which the sentence (including any licence period) is completed |
| A custodial sentence of more than 1 year and up to, or consisting of, 4 years | The end of the period of 4 years beginning with the day on which the sentence (including any licence period) is completed |
| A custodial sentence of 1 year or less | The end of the period of 12 months beginning with the day on which the sentence (including any licence period) is completed |
It should be noted that these periods are for offenders over 18 at the date of conviction. For offenders below the age of 18, the periods are noticeably lower.
The changes also affect cautions, fines and other sentences.
What should employers do now?
Most employers will have application forms and guidance on completion that mentions the disclosure time limits. These will have to be changed as soon as possible.
However, it is important to bear in mind that the new legislation will not change the process involved in roles where DBS (Disclosure and Barring Service) checks are required by law, either basic or enhanced.
An adult conviction will be removed from a DBS criminal record certificate if:
- 11 years have passed since the date of conviction, and
- it is the person’s only offence, and
- it did not result in a custodial sentence.
A DBS check will always reveal offences of a violent and/or sexual nature and offences relevant to the protection of children and vulnerable adults.
If you have any concerns about this area of law, it is a good idea to contact an expert legal advisor or solicitor who will be able to answer your questions.