Pre 10th March 2014 guide to the Rehabilitation of Offenders Act 1974

Updates to the law

The Rehabilitation of Offenders Act 1974 (ROA) enables some criminal convictions to be not disclosed after a rehabilitation period. Its purpose is that people do not have to disclose a criminal conviction for long periods of time.

Why might you need to know what the old law was?

There are some examples where the rehabilitation period has lengthened as a result of the changes. This is particularly the case for:

1. Further convictions for summary offences – these will now normally drag previously unspent convictions with them
2. Youth rehabilitation orders (in some cases)
3. Detention and Training Orders for 12-14 year olds

However, it’s important to realise that anything that was previously spent under the old law cannot now become unspent.

As a result, if you received any of the above sentences before 10th March 2014, you might also want to check the guidance below, as well as use the old version of our Disclosure Calculator (which is also still available).

If, under the old law, your convictions were regarded as spent before 10th March 2014, even if they would now be regarded as unspent under the new law, you’re allowed to treat them as spent convictions.

What is the Rehabilitation of Offenders Act 1974?

The rehabilitation period is automatically determined by the sentence, and starts from the date of the conviction. After this period free of further convictions, the conviction is “spent”, and with certain exceptions you are not obliged to mention a spent conviction in any context, including when applying for a job, or obtaining insurance, or in criminal or civil proceedings.

Certain professions are exempt from the Act so that individuals are not allowed to withhold details of previous convictions in relation to their job. These 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, police, court clerk, probation officer, prison officer and traffic warden
• Doctors, dentists, chemists or nurses
• Accountants

Positions that are exempt from the Act usually involve a standard or enhanced checks.

Coverage

The ROA only covers England and Wales. No other country is bound by this legislation. There are very similar (but not identical) provisions for Scotland and Northern Ireland, but these are not covered by this information.

Rehabilitation periods

The table below sets out the main sentences, orders and warnings and the ‘rehabilitation period’ attached to each. The period starts from the date of warning or conviction, unless otherwise stated.

The time it takes for a conviction to become ‘spent’ depends on the sentence given, not the offence committed (except for the offence of Loitering and Soliciting under the Policing and Crime Act 2009, where the period is six months).

For custodial sentences, the rehabilitation period is decided by using the sentence imposed at court, rather than the time served in custody.

Before selecting a particular sentence, please sure you look at any notes relating to that sentence underneath.

Notes on rehabilitation periods

1. This has been replaced by the youth rehabilitation order.
2. This has been replaced by the community order for adults and the youth rehabilitation order for juveniles
3. This was abolished in 1983.
4. Care orders in criminal proceedings were abolished by the Children Act 1989 and effectively replaced by a supervision order with residence requirements.
5. This was replaced by the community punishment and rehabilitation order, which was itself replaced by the community order for adults and the youth rehabilitation order for juveniles.
6. This has been replaced by the community order for adults and the youth rehabilitation order for juveniles.
7. This has been replaced by the community order for adults and the youth rehabilitation order for juveniles.
8. This has been replaced by the community order for adults and the youth rehabilitation order for juveniles.
9. This was replaced by the community punishment order, which was itself replaced by the community order for adults and the youth rehabilitation order for juveniles.
10. This is an ancillary order which is treated as a sentence in its own right.
11. This has been replaced by the community order for adults and the youth rehabilitation order for juveniles.
12. This was abolished in 1988.
13. This was abolished for those under 18 in 2000 and replaced by the detention and training order, but it is still available for those aged 18-20 years.
14. This was abolished for those under 18 in 2000 and replaced by the detention and training order, but it is still available for those aged 18-20 years.
15. This is an ancillary order which is treated as a sentence in its own right.
16. This has been replaced by the community order for adults and the youth rehabilitation order for juveniles.
17. This is a sentence, but it is not a penalty. It has a rehabilitation period of five years under a general sweep-up provision in the ROA which applies to sentences not otherwise specified.
18. The rehabilitation period applies even if the offender is subsequently imprisoned for default of a fine.
19. This is an ancillary order which is treated as a sentence in its own right.
20. This was replaced by the community rehabilitation order, which was itself replaced by the community order for adults and the youth rehabilitation order for juveniles.
21. This was replaced by the community rehabilitation order, which was itself replaced by the community order for adults and the youth rehabilitation order for juveniles.
22. This was abolished in 2000 and replaced by the detention and training order.
23. This has been replaced by the youth rehabilitation order.
24. To be piloted in six areas around the country from mid-2010.
25. This was abolished in 1988.
26. This was abolished in 1988.
27. This replaces a number of orders for offences committed after 30 November 2009.

When the rehabilitation period starts

The rehabilitation period runs from the date of conviction. This is set out in s.5(2) of the Act, which states that the rehabilitation period (as defined in subsections (a) and (b)) are “reckoned in either case from the date of the conviction in respect of which the sentence was imposed”.

Where the sentence is not imposed on the date of conviction, there is potentially a period where you will not be aware of what the rehabilitation period for the conviction is until you receive your sentence. However, sentencing decisions, where they are not made on the date of conviction, usually follow relatively swiftly after it. The shortest rehabilitation period which is available where a conviction is imposed in front of a court is an absolute discharge, where the rehabilitation period is 6 months. It is unlikely that an individual would not have been sentenced by this point. The only exception to this is compensation orders, which become spent once paid, however it is highly unlikely that a court would simply sentence an individual to a compensation order alone.

When asked for details of unspent convictions, it is only the conviction that needs to be disclosed, not the rehabilitation period. Therefore, where you await sentence, you will need to disclose that conviction.

When the offence was committed does not influence the rehabilitation period.

Disqualifications

The rehabilitation period for a disqualification is the length of the disqualification. If a person is disqualified (e.g. from driving or from being a company director) and at the same time receives another penalty, the longer of the two rehabilitation periods applies.

Endorsements and penalty points

Endorsements

Road traffic legislation does not specify how an endorsement is to be treated for the purposes of the ROA. The case of Power v Provincial is, therefore, the established authority that an endorsement is a sentence, not a penalty. The Court of Appeal said that it has a rehabilitation period of five years under a general sweep-up provision in the ROA, which applies to sentences not otherwise specified. How long the endorsement remains on the licence is irrelevant.

Penalty points

Penalty points are considered under section 5(8) of the ROA. Section 29(2) of the Road Traffic Offenders Act 1988 provides for totting up of penalty points where offences are committed within three years of each other.

As a result, penalty points alone have a rehabilitation period of three years. However, penalty points are normally issued by courts in combination with a fine, which would mean that it would be 5 years.

Further convictions

If you are convicted of a minor offence (a ‘summary’ offence), which can be tried only in a magistrates’ court, the rehabilitation period for the further conviction will run separately – therefore, the rehabilitation period for the further offence could end before the rehabilitation period for the first offence. Summary offences include most motoring offences, criminal damage of £5,000 or less, drunkenness and kerb-crawling. More details can be found in the user guide of our Disclosure Calculator.

If the second conviction is either triable either way (can be tried in either court), or indictable (i.e. can only be tried in the Crown Court), then neither conviction will become spent until the rehabilitation period for both is over. This applies even if the first conviction was for a summary offence. If the further conviction leads to a prison sentence of more than 30 months, neither conviction will ever become spent. Once a conviction becomes spent, it remains spent, even if you are subsequently convicted for further offences.

If, however, the first conviction leads to a prison sentence of more over 30 months, later convictions with fixed rehabilitation periods will become spent separately.

If the first offence was for loitering or soliciting and you are convicted again for the same offence, the rehabilitation period for the first offence will be extended by the second offence, even if the rehabilitation period for the first had expired. This is the only example where a previously spent conviction can become unspent.

Concurrent and consecutive sentences

If you receive two or more prison sentences in the course of the same proceedings, the rehabilitation period will depend on whether the sentences are ordered to run concurrently or consecutively.

Concurrent – Two sentences of 6 months to take effect concurrently are treated as one sentence of 6 months, and therefore have a disclosure period of 7 years.

Consecutive – Two prison sentences of 6 months ordered to run consecutively are treated as a single terms of 12 months, giving a rehabilitation period of 10 years.

Prison sentences ordered to run consecutively to sentences already being served are not affected by this rule.

Breach of court orders

If you are given a community order or conditional discharge order and are later brought before the courts for a breach of that order, this can affect the rehabilitation period applicable to the original conviction.

If the court imposes a further sentence when it deals with the breach, then the original conviction will run on until both rehabilitation periods have expired.

Sometimes the courts may not deal with the breach until after the rehabilitation period applying to the original conviction has already expired. If the court then imposes a further sentence in dealing with the breach, the original conviction will still not become spent until the new rehabilitation period has expired.

Military convictions

The ROA also applies to convictions in the armed forces, including some service offences (see below). However, if the service offence was of a kind which most people would not consider criminal (such as failing to salute an officer), the ROA only applies if the sentence was three months’ detention or more.

The service offences to which the Act always applies are:

Other than those list above, the ROA only applies to service offences if the punishment awarded was imprisonment, cashiering, discharge with ignominy or dismissal with disgrace from HM Service; dismissal from HM Service; or detention for a term of three months or more. The rehabilitation periods for the various sentences are set out below.

1. Under the relevant schedules and sections of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 where the maximum period of detention is more than 6 months
2. Under the relevant schedules and sections of the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 where the maximum period of detention specified is 6 months or less

Convictions obtained overseas

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.

However, there is some confusion regarding what to do when a sentence given abroad doesn’t match with those in the ROA. We have spoken to the Ministry of Justice about this and have been informed that, where sentences received abroad do not match with those contained in the Act, the only way to approach it is to find a domestic sentence which is the nearest equivalent. This would appear to be something that you have to decide, as neither the Courts nor the Ministry of Justice operate a process for deciding this process on your behalf. If in doubt, contact the Ministry of Justice Policy team responsible for the ROA – email roa@justice.gsi.gov.uk.

More general information about convictions obtained overseas is available here.

Retention of criminal records

Your conviction will remain on record even after it has become spent – it will not be deleted from the Police National Computer.

Previously, there were mechanisms available where records of reportable offences (i.e. offences which can be tried in the Crown Court, whether or not they actually are) were deleted after 20 years, unless there were further convictions or if there is evidence of mental illness, indecency, drug trafficking or homicide. Records of non-reportable offences could be deleted after 10 years.

However, a Court of Appeal decision in October 2009 ruled that the indefinite retention of criminal records on the PNC was lawful. See the retention and deletion of police records for more information.

Cautions

Cautions, reprimands and final warnings are not criminal convictions and, until 2008, were not covered by the Act. This meant that, technically speaking, people with cautions, reprimands or final warnings, when asked whether they had a criminal record, should have disclosed them.

However, in December 2008, legislation was passed which rectified this rather strange anomaly. Part 4 of Schedule 27 of the Criminal Justice and Immigration Act 2008 states that a caution becomes spent immediately. Conditional cautions become spent after 3 months.

Benefits of the ROA

It means that if you are asked on an application form or at an interview whether you have any previous convictions, you can answer no if the convictions are spent and the job applied for is not an exception from the Act. Under the terms of the Act, a spent conviction shall not be proper grounds for not employing or for termination of employment.

However, if you do not disclose unspent convictions when asked to do so, you risk dismissal on the grounds of deceiving the employer and could face prosecution.

Also, the Act does not provide any means of enforcing your right to not be refused employment (or entry into a profession) on the grounds of a spent conviction. If, however, you can prove that you have been dismissed for a spent conviction and you have been in employment for two years or more, you may be able to claim unfair dismissal under employment legislation. Find out more about convictions and employment law.

Applying for insurance

If an insurance proposal form asks whether your have any previous convictions, the answer can be no if your convictions are spent. This is the case even if the insurer believes that the conviction is relevant to the risk which the insurers will underwrite. For example, spent motoring convictions can be omitted from a proposal form for motor insurance.

For more information about insurance, click here.

Civil proceedings

In civil proceedings, no one should be asked questions which might lead to disclosure of spent convictions. If such questions are asked, they need not be answered. However, this rule does not apply: –

• in civil proceedings relating to children (adoption, guardianship, wardship, marriage, custody, care and control, schooling);
• when the court is satisfied that justice cannot be done unless evidence of spent convictions is admitted (anyone who has spent convictions can always consent to evidence being given about them);
• if the proceedings involve a matter excepted from the Act.

The rule on civil proceedings applies not only to ordinary courts, but also to arbitration proceedings, disciplinary proceedings before an administrative tribunal, and to a club committee which has powers to affect anyones rights, privileges, obligations, or liabilities.

Criminal proceedings

Previous convictions can be cited in criminal proceedings, even if they are spent. The Lord Chief Justice and the Home Office have, however, advised the Courts that spent convictions should not be mentioned except in very special circumstances.

Confidential information

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 bribe. However, as far as we are aware, nobody has been prosecuted for an offence under this section.

It might be possible for a person with spent convictions to sue for libel anyone making an allegation about spent convictions, if it can be proved that the allegation was made with malice.

Exceptions

Under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, as amended, there are many offices, occupations and positions which are exempt from the Act.

In these situations, employers and professional bodes can ask you to disclose both spent and unspent convictions and, in addition, they can carry out a standard or enhanced check with the Disclosure & Barring Service.

More information about the DBS, and eligibility in particular, is available here.

Some of the main positions exempt from the ROA include:

• any work which is defined as regulated activity relating to children or vulnerable adults within the meaning of the Safeguarding Vulnerable Groups Act 2006
• certain professions, occupations, offices and employments in areas such as health, pharmacy, finance, the courts and the law
• licences to drive taxis and to work in the private security industry

Application forms for posts which are exempt from the Act should always make this clear, although some employers claim that posts are exempt when they are not. If in doubt, seek advice.

Going abroad

The Act only covers England and Wales; other countries have their own rules about those to whom they will give visas and work permits. Embassies or overseas employment agencies should be able to provide information about this.

Working out if your record is spent

There are a number of ways in which you can find out when your record is spent. Click here for more information.