Rehabilitation periods: Changes on the horizon

Author: Clio Springer

The Government has announced significant reforms to the law on spent convictions and rehabilitation periods. If the proposals go ahead, fewer convictions will have to be revealed to employers and there will be more cases in which they will be unable to refuse employment because of a job applicant's past convictions.

Rehabilitation periods

Sentences for criminal convictions that are for no longer than 48 months (in England and Wales - see below for the position in Scotland) become "spent" after a defined period, known as the "rehabilitation period".

Rehabilitation periods, which are set down in the Rehabilitation of Offenders Act 1974, vary according to the sentence.

Related resources

Rehabilitation periods for England and Wales

Recruitment of people who have criminal record policy

Will a job applicant have any redress if an employer refuses employment on the basis of a spent conviction?

Is it lawful for an employer to ask candidates if they have any criminal convictions?

Can an employer refuse to employ a candidate with a spent conviction?

Can a candidate be rejected on the basis of an unspent conviction?

Once the rehabilitation period has passed, job applicants and employees are not normally required to disclose their conviction to an employer and employers cannot take into account spent convictions when making decisions about an individual's employment (for example whether or not to recruit them).

Although the law does not expressly forbid employers from asking questions (for example during the recruitment process) about convictions in general, questions are deemed as if they do not relate to spent convictions and job applicants will not be liable for not disclosing spent convictions.

Further, because the right to conceal a spent conviction is a statutory right, an individual cannot be penalised for failing to disclose it.

Sentences that exceed 48 months are never spent, so job applicants can be required to reveal them, regardless of how much time has passed since their conviction.

Rehabilitation periods in Scotland

The rehabilitation periods in Scotland differ from those in England and Wales. Prior to 10 March 2014, rehabilitation periods were the same across Great Britain. They were reduced in England and Wales on that date, but this reduction was not made in Scotland where sentences exceeding 30 months still can never be spent.

Related resources

Current rehabilitation periods - Scotland

Future rehabilitation periods - Scotland

However, the Scottish Government is making changes to rehabilitation periods with the Management of Offenders (Scotland) Act 2019, which received Royal Assent on 30 July. Once the new provisions come into force, rehabilitation periods, which will be referred to as "disclosure periods" in Scotland, will more closely align with those for England and Wales.

Exempted positions

There are a number of positions that are exempted from the rehabilitation rules, meaning that employers can take into account spent convictions when making decisions about employment and can require job applicants to disclose all convictions, whether or not they are spent.

For example, positions related to law and order, health and social care and regulated activity with children or vulnerable adults, are exempted, as are a certain professions and regulated occupations.

Related resources

Jobs where it is lawful to ask for details of spent convictions

Jobs where it is lawful to ask for details of spent convictions (Scotland)

Safeguarding: Recruiting people to work with children and/or vulnerable adults policy

However, where a conviction or caution is "protected", the individual does not have to disclose it, and the employer cannot take it into account.

Cautions and convictions may become protected after a defined period, although they must not be for certain listed offences and must not have resulted in a custodial sentence (including a suspended sentence).

Protected cautions and convictions are "filtered out" from Disclosure and Barring Service (DBS) criminal records checks.

Reforms to rehabilitation periods

The Ministry of Justice announced proposed reforms to the rules on rehabilitation periods on 15 July. In some cases, job applicants will not need to disclose sentences that exceed 48 months, after a certain period. The Government also intends to reduce other, shorter rehabilitation periods.

However, separate rules will apply to sensitive posts, for example those involving work with children or vulnerable adults.

The then Secretary of State for Justice, David Gauke, said that reforms were being introduced "to break barriers faced by ex-offenders who genuinely want to turn their lives around through employment".

If the proposals do come into effect, it is likely that more sentences and convictions will be concealable and employers will not be able to penalise individuals for failing to disclose them.

Evidence shows employment reduces the risk of reoffending by more than a third.

Rachel Tynan, Unlock

"Getting people with convictions into work, supporting their families and contributing to the economy is one of the best ways of making communities safer", says Rachel Tynan, policy and practice lead with Unlock, a charity that provides support for people with convictions. "Evidence shows employment reduces the risk of reoffending by more than a third. That is why we have long campaigned for a system that enables all convictions to become 'spent' at some point."

The Government said that it will set out more details about its proposals "following engagement with stakeholders" later in 2019.

Possible changes to disclosure system?

Where an individual has more than one conviction, the convictions can never become protected, meaning that they will not be filtered out of DBS criminal record certificates.

In R (on the application of P) v Secretary of State for the Home Department and other appeals [2019] UKSC 3 SC, the Supreme Court held that the operation of the "multiple conviction" rule is disproportionate, and therefore incompatible with art.8 of the European Convention on Human Rights concerning the right to respect for private and family life. The Court held that the rule is too unrefined to achieve its intended purpose of indicating a propensity for further offending.

Following this decision, the Government said in Parliament on 4 June that the disclosure system "is something we are looking at carefully".