The complexity of the Rehabilitation of Offenders Act

In 1974, The Rehabilitation of Offenders Act (ROA) was passed. This had a profound effect on people with criminal records, creating the legislative framework by which it became possible for convictions to be legally ‘forgotten’. 

However, this simple principle almost immediately became complicated. We get hundreds of contacts a month to our helpline that are, essentially, to do with understanding the landscape governed by the ROA, so the complexity of this legislation does have a real impact on the day-to-day lives of individuals. 

The ROA grew out of the work of the Joint Working Party on Previous Convictions (chaired by Lord Gardiner, “the Gardiner Committee”), whose report was entitled “Living It Down: The Problem of Old Convictions” There was an acceptance that perpetual disclosure of past convictions was unhelpful. 

The ROA established the concept of spending periods. Different cautions and convictions carry with them different spending periods, during which information must be disclosed in a wide variety of circumstances. The most up to date information on these periods can be found here. 

However, over time the picture has become ever-more complex, owing to countless changes and amendments through secondary legislation and the way in which it interacts with other pieces of legislation, namely the ROA Exceptions Order (defining roles where greater levels of disclosure are required) and the 1997 Police Act (establishing the system of criminal records checks). 

The ROA has been amended over fifty times since its passing. Furthermore, these changes are rarely well communicated, legislation is not always kept up-to-date in an accessible manner and changes are not always considered for the implications they will have. Over time, various idiosyncrasies have emerged, making the job of individuals trying to understand their obligations under the legislation ever more challenging. 

Though the changes increase complexity, it is worth noting that they are not always negative. For example, changes enacted under the Police, Crime, Sentencing and Courts Act in October 2023 reduced many spending periods, thus allowing more people to move on sooner. Rather, it is the volume and inconsistency of changes that has made the picture ever more complex. 

These changes are a real problem for people with criminal records. Having a solid understanding of what needs to be disclosed and in what circumstances is crucial to avoid under-disclosure and over-disclosure. The former can have a negative impact as we know some employers use self-disclosure as an honesty test to be measured against a DBS check, while the latter can give employers access to information to which they are not entitled. In either case, the complexity of the ROA does not help people navigate the system to which they are subject. 

It is worth considering also the extent to which the world has changed since the passing of the ROA in 1974. Ever more jobs have been added to the Exceptions Order, requiring greater levels of disclosure. There has been a societal drift in the direction of a sense that there is a “right to know” grater amounts of information about people. And, crucially, the internet has made this type of information ever-more available. So not only is the ROA complex, but its complexity has failed to keep up with the world in which it operates. 

At Unlock, we are calling for wholesale review and reform of the criminal records regime. Change is needed, and a wide-ranging review process is needed to underpin that.