People with criminal convictions are not the most popular group in society.
However, once somebody has served their sentence and doesn’t re-offend, it’s in everybody’s interests to enable them to move on positively with their lives and contribute actively to society.
And we’re not talking about a small group of people either – although around 100,000 people are sent to prison every year, there are over 1.4 million convictions at court every year. The majority – approximately 945,000 convictions – involve a fine, with 195,000 convictions resulting in a community sentence, and about 45,000 having a suspended prison sentence. There are over 9 million people in England and Wales with a criminal record. A third of people claiming jobseekers allowance have been cautioned or convicted in the last 10 years.
Before 1974, anybody given a conviction at court would have to disclose this for the rest of their life if they were asked. This caused people real difficulties when trying to get their lives back on track. That is one of the main reasons why the Rehabilitation of Offenders Act was introduced 40 years ago. It remains the only real piece of legislation that provides some form of legal protection to people with convictions.
However, ever since it was introduced, it’s been criticised in many ways, with the main focus of attention being on the ‘rehabilitation periods’ attached to a sentence. For example, a fine took 5 years to become ‘spent’, an 8 month prison sentence took 10 years, and a sentence of more than 30 months in prison could never be spent.
That’s why, right from when Unlock was started back in 1999, we’ve campaigned for reforms. We were part of the Government’s original Breaking the Circle review in 2002, and since then have pushed for the recommendations in that review to be implemented. The more recent Breaking the Cycle review brought the item very much back on the agenda, and although it’s been a long-time coming, changes we’re finally included in the Legal Aid, Sentencing and Punishment of Offenders Bill, which received Royal Assent in 2012.
Two years further down the line, we’re delighted that the changes will be coming into force on 10th March 2014. This means that many people will find that their conviction becomes ‘spent’ a lot sooner than it did previously. It only applies in England and Wales, but the changes are ‘retrospective’, which means it applies to people convicted before the March changes.
So, if you were sentenced in June 2013 to 1 year in prison, this would previously have taken 10 years to become ‘spent’. Under the changes, this will reduce to 4 years from the end of the full sentence (so June 2018). It also means that many people who had a conviction that would never be spent (whose sentence was between 30 months and 4 years) will now find that it will be able to become spent. There are also big changes to non-custodial sentences. The rehabilitation periods for community orders are being reduced considerably, and fines are reduced from 5 years to 1 year.
For many people with convictions, this means an end to the years of struggles that they’ve had in finding work or buying insurance. One comment we recently received typifies the impact this will have – “I’ve struggled for the last 20 years. My convictions were previously never spent. I’ve been waiting for the last two years for these changes to come in. Finally, I can apply for work with a clean slate. Thank you.”
Once a conviction is spent, it means you don’t have to disclose for most jobs, and insurance, and it won’t be disclosed on a basic check. It doesn’t get deleted, and for jobs that involve standard or enhanced criminal record checks, it will continue to get disclosed in most cases.
However, despite all of the positives, the reforms are not perfect. Sadly, when the changes were being brought before Parliament, we found ourselves largely isolated in calling for further change. The result is that, while the reforms will undoubtedly make a significant impact to thousands of people, it nonetheless represents somewhat of a missed opportunity, given it’s the first time in nearly half a century that significant change has taken place.
For example, although the upper-limit of sentence that can become spent has been raised from 30 months to 4 years, we continue to campaign for a system that allows people with sentences of more than 4 years to have a way of their convictions becoming spent at some point. In 2012, over 7,200 people received a prison sentence of more than 4 years, and it remains a sad indictment on our criminal justice system that it believes it cannot rehabilitate these individuals. The simple passage of time might not represent the most appropriate way of attributing a rehabilitation period to a conviction, but placing any individual outside the scope of the Act permanently sends out the message that they are inherently ‘unreformable’ or ‘irreclaimable’ and acts as a disincentive to any attempt at reform on their part.
One solution would be to give people with sentences of over 4 years the opportunity to apply to a court or other tribunal for their conviction to become spent after going a minimum amount of time in the community conviction-free. Such a process could also apply to people who under the reforms have to wait many years for their conviction to become spent. One of the advantages of such a scheme would be to act as an incentive to achieve rehabilitated status so that the stigma of the ‘ex-offender’ label could be effectively removed as though the conviction had become spent from the mere passing of time. Achieving rehabilitated status could perhaps become a significant ‘marker’ in the process, a rite of passage, formal recognition of re-integration requiring conscious and deliberate activities consistent with good and active citizenship.
Another issue which wasn’t addressed by the reforms was the number of exceptions to the legislation, which relates to those jobs and roles where spent convictions can also be taken into account. The growing number of exceptions from and exemptions to the Act mean that people with old convictions are consigned to an increasingly narrow range of employment and educational opportunities. This is shown in the number of standard and enhanced criminal record checks undertaken in recent years (which can only be done on positions which are exempt from the Act). In 2002, there were 1.3 million a year; in 2011, there were 4.3 million.
Some of this represents an increasing appetite for criminal record checks from employers. Nevertheless, the same period has also seen a significant number of additions to the exceptions. Although the Government has ruled this out on a number of occasions, what is needed is for the exceptions order to be overhauled to establish precisely what types of occupations should be included in it. Consideration should also be given as to whether exceptions could be included based on the relevancy of the offence to the role/occupation, e.g. financial convictions for FCA approved-positions. Roles included within the exceptions order should only be entitled to certain spent convictions. Blanket access to all convictions is not a particularly sophisticated or effective way of disclosing conviction information.
The reforms also fail to deal with the developments since the original law was passed in the way that information is now readily available – largely referred to as the ‘Google effect’. There’s no easy answer to this problem – court reporting, albeit patchy, remains a fundamental right of our justice system, and the increasing ways of sharing information online represents a significant challenge to the way that the 1974 legislation works, particularly given its continued reliance on a ‘licence to lie’ principle. Sadly, the Act is often criticised for being ‘toothless’, and to my knowledge, no employer has ever been prosecuted for taking into account spent convictions, despite numerous anecdotal examples of this having taken place in practice. One practical measure would be to amend to ROA so that it was an offence to ask about criminal convictions beyond a limited form specific to unspent convictions (rather than just a duty to ignore any spent convictions). Without the force of the law to prevent employers and insurers from asking questions to which they are not entitled to know the answer they have and will continue to discriminate with impunity. Such a change would enable people with convictions to answer questions honestly, rather than being licensed to lie.
On a technical point, one thing that is being kept quite quiet is the way that motoring offences are being dealt with. Because of complaints by the insurance industry, the changes that were planned to motoring endorsements (from 5 years to nil) are no longer happening. Although we can understand the issues raised by the motor insurance industry, the unfortunate knock-on effect is that motoring convictions are dealt with much more seriously under the ROA than short prison sentences, and this applies not just to insurance, but also for when people are applying for work. This is an area that we’re actively looking to challenge moving forward.
Despite these issues, there is, without doubt, a feeling of relief that these reforms are finally coming into force. However, we shouldn’t lose sight of the remaining difficulties that are left unaddressed by the 1974 Act, and it would be a mistake to think that, if your conviction becomes spent under these changes, that’s the end of your problems. Sadly, in our experience, a criminal record will continue to haunt people for the rest of their lives, and in many cases this prevents people from reaching their full potential. That cannot be good for society.
What’s next in practice?
Once the changes come in on the 10th March, we’ll be updating the guidance we have on our self-help website, unlock.devchd.com/information-and-advice/, as well as updating our online tool disclosurecalculator.org.uk.
We also know that staff and practitioners that provide employment support and careers advice to people with convictions often struggle in understanding this legislation – 8 out of 10 people we provide training to get the ROA wrong, so we’re holding ‘masterclasses’ on the changes. Details of these can be found on our website.
