The Rehabilitation of Offenders Act 1974 (ROA) applies to deem certain previous criminal convictions “spent” where the individual does not re-offend during a certain specified period from the date of conviction – the rehabilitation period. Convictions which are deemed “spent” are not disclosable including to employers except where an exemption applies which is usually due to the nature of a particular occupation, office, or profession, which requires “spent” convictions to be disclosed. During the rehabilitation period however, the conviction is considered “unspent” and remains disclosable, including to employers.

Reforms

On 28 October 2023, the Government introduced reforms to the ROA and the length of rehabilitation periods under the Police, Crime, Sentencing and Courts Act 2022. The amendments introduce a seven-year rehabilitation period* for adult offenders for certain custodial sentences of four or more years following which such offences will be considered “spent” provided a further offence is not committed by the individual during the rehabilitation period. Once “spent” such offences will not be disclosable to employers save for where an exemption applies such as an individual working with vulnerable people. Excluded from the amendments are serious sexual, violent, or terrorist offences which are always disclosable and are not able to become “spent”. Prior to the amendments introduced to the ROA, offences which attracted custodial sentences of four or more years were not able to become “spent”.

The amendments introduced to the ROA also shorten the rehabilitation periods for less serious offences, these are now:

  • Adult Community Orders and Youth Rehabilitation Orders: the last day of the order;
  • For an adult offender sentence to a custodial sentence of 1 year or less: 1 year[1];
  • For an adult offender sentence to a custodial sentence of 1 year and up to 4 years: 4 years*.

Where an individual reoffends during their rehabilitation period, they will be required to disclose the original offence and any subsequent offence to employers during any applicable rehabilitation periods.

When announcing the reforms, the Government suggested that the changes will result in the removal of “a significant barrier to offenders rebuilding their lives” whilst ensuring the most serious offenders remain exempt from these changes.

Implications for employers

Where an employer can undertake criminal record checks (as not all employers will be able to) they will need to be mindful that from 28 October 2023 certain criminal convictions which were previously “unspent” and disclosable may, with effect from that date, be considered “spent” so that an individual is not required to disclose such convictions. This will apply even where an employer makes a direct request for such information or there is a contractual requirement on the individual to provide this information. The ROA provides that an individual cannot be subjected to any liability or other prejudice for failing to acknowledge or disclose a “spent” conviction (e.g. a refusal to hire or offer promotion) and that an individual’s failure to disclose the detail or existence of a “spent” conviction is not a lawful ground for dismissal or exclusion from employment. These protections do not apply where an exemption applies, which requires individuals to disclose “spent” convictions because of their occupation, office, or profession. Where an individual is required to disclose “spent” convictions employers will be able to ask individuals to disclose such details (provided the employer informs the individual that they are obliged to disclose such convictions due an exemption applying because of the nature of their occupation, office or profession).

[1]  For offenders under the age of eighteen, the rehabilitation period will be half of the rehabilitation period for adult offenders.