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Take action on bad recruitment practice

Most employers ask about criminal records on application forms, and many carry out Disclosure and Barring Service (DBS) checks before making a final offer.

The Rehabilitation of Offenders Act 1974 allows some criminal records to become ‘spent’ after a crime-free period. This means they are no longer disclosable – for example to employers – enabling people to move on and positively and contribute to society. For jobs working with children and vulnerable adults, spent criminal records must still be disclosed (until they become protected).

Because the law can be complicated and employers are rarely trained in this area, some employers ask questions about spent convictions when they shouldn’t. Sometimes employers are not aware that cautions and spent convictions can become protected, and ask about these too. For example, they may ask “have you ever had a caution or conviction?” We call these misleading questions.

Sometimes employers carry out DBS checks which are not appropriate for the role; these are sometimes known as ‘ineligible checks’. We call them ‘unlawful checks‘; carrying out a DBS check at a higher level than permitted can be a criminal offence and a breach of data protection laws, and leads to people with criminal records being denied jobs unnecessarily.

If you think an employer is asking a misleading question or has carried out an unlawful check, you can challenge it. The template letters below are designed to help you do this:

If you think an employer has asked a misleading question

Download template letter – misleading question (spent convictions)

Use this if: the job is covered by the Rehabilitation of Offenders Act, and the application form asks a question which may lead applicants to disclose convictions which are spent.

For example: a marketing role with a form that asks ‘do you have any cautions or criminal convictions?’

Download template letter – misleading question (protected convictions)

Use this if: the job is exempt from the Rehabilitation of Offenders Act, and the application form asks a question which may lead applicants to disclose convictions which are ‘protected’ (sometimes called filtered).

For example: a teaching role with a form that asks ‘do you have any cautions or criminal convictions?’

If you think an employer has carried out an unlawful check

Download template letter – job offer withdrawn because of ineligible check (spent conviction)

Use this if: you have applied for a role covered by the Rehabilitation of Offenders Act and had an offer of employment withdrawn, following a DBS check which disclosed a spent conviction.

For example: you applied for a job as a shop assistant, and the company unlawfully carried out an enhanced DBS check.

Download template letter – ineligible check

Use this if: a job application form suggests that a check will be carried out for a role that does not require it.

For example: an office assistant role at a business, asking for a standard or enhanced DBS check

Support our policy work

We rely on evidence and individual experiences to support our work challenging bad practice, and pushing for policy change. Find out how you can help us to drive change:

If you need help

Contact our helpline if you need to speak to an advisor about your criminal record, or if you need help to challenge an employer.

Case of Lawrence – Court wrongly issued information about a spent conviction

Lawrence contacted us concerned that a crown court had provided information about his spent conviction without the proper authority.

Lawrence had a spent conviction from 12 years ago which could still be found on the internet. His local residents’ association had used the information they found online to request a Certificate of Conviction from the Crown Court where Lawrence had been convicted.

The Court should not have issued the certificate to a third party as it contained information about a spent conviction and the residents’ association had no legal right to access it. With Lawrence’s consent, we tested the process, approaching the same court for information. The request made clear that we had no standing in the case, that the request for information was not in relation to an official capacity, and that the conviction was believed to be spent. Despite this, we were duly provided with another certificate of conviction.

We followed the same process with several other courts. Not all of them provided information; some explained that it would not be possible or that a lawful reason would need to be established. However, three of the eight contacted – provided information about a spent conviction.

The Rehabilitation of Offenders Act 1974 ensures that people with convictions can – in most cases – move on positively with their lives after a period of living crime-free. Once the rehabilitation period has elapsed, a person has the legal right to be treated as if that conviction did not occur. Disclosure of information that an individual has the legal right to withhold material consequences for that individual and can affect their ability to find employment and access education.

The Crown Court Manual (CCM) sets out procedures for those working in Crown Courts, including dealing with requests for criminal records information. The manual refers to the Rehabilitation of Offenders Act 1974 and the need to consider whether a conviction is spent before a certificate is issued.

The manual explains that it is an offence for any person to disclose any information about a spent conviction. No offence is committed if the disclosure is (or is reasonably believed to be) made to the rehabilitated person himself or to someone else at his request.

We contacted HMCTS to share our concerns. We pointed out that:

– Issuing certificates of conviction to third parties where the conviction is spent may be an offence, since there is no ‘official duty’ to do so.
– Disclosure of this information also breaches of data protection principle (f) Integrity and confidentiality, and affected individuals may have a claim against HMCTS under Articles 79 and 82 of the GDPR.

As a result, guidance on how to handle requests of this nature was re-issued to staff and HMCTS commissioned an urgent review of the guidance to avoid future misinterpretation. The Crown Court that issued the certificate wrote to Lawrence to apologise and wrote to the residents’ association to advise them to delete the information as it had been issued in error. Lawrence is now exploring whether he can make a claim under the GDPR.

Lessons

The Rehabilitation of Offenders Act 1974 ensures that people with convictions are able to move on with their lives. Any organisation handling criminal record information should ensure they follow procedures when sharing this information, and particular care should be taken with spent convictions. Individuals’ data is protected by data protection law and the GDPR entitles individuals to make a claim against an organisation that fails to uphold their rights.

Links

Find out when a conviction is spent

Your rights under the GDPR

 

Names and details have been changed to protect the identity of those involved.

Key facts

Number of people with criminal records

  • 33 per cent of males born in 1953 had been convicted in England and Wales by 2006 of at least one standard list offence before the age of 53 (Standard list offences include all indictable and triable-either-way offences and certain summary offences). Just over half of these had been convicted on only one occasion. 85% were convicted before they were 30 years old.
  • 9 per cent of females born in 1953 had been convicted of at least one standard list offence before the age of 53. Three-quarters of these had been convicted on only one occasion.
  • Over a quarter (26 per cent) of the 4.9 million open claims for out-of-work benefits as at 1 December 2010 in England and Wales were made by people who had received at least one caution or conviction between 2000 to 2010.
  • A third (33 per cent) of the 1.2 million total Jobseeker’s Allowance (JSA) claims open on 1 December 2010 in England and Wales were made by people who had received at least one caution or conviction between 2000 to 2010.

 

 

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