Written evidence from the Ministry of Justice and the Home Office
Executive Summary
1. The Rehabilitation of Offenders Act 1974 (the ROA) protects rehabilitated offenders from having to reveal certain past convictions (of four years imprisonment or less) and cautions after a set period of time. This period varies according to the seriousness of the sentence awarded. The purpose of the ROA is to support ex-offenders in their reintegration and resettlement into employment by removing the need to answer questions on their spent convictions. They are regarded as ‘rehabilitated’ in relation to these convictions.
2. For most purposes, the ROA has the effect that a rehabilitated person is treated for all purposes in law as if he or she had never committed, or been charged with, prosecuted for, convicted of, or sentenced for the offence which was the subject of that conviction. As such they are not required to declare their spent caution(s) or conviction(s), for example when applying for most jobs or insurance, some educational courses and housing applications.
3. The ROA covers both adults and young offenders. It extends to England and Wales and to Scotland. Most (but not all) provisions have different versions which apply either to England and Wales or to Scotland. This memoranda applies to England and Wales only as the rehabilitation of offenders is a devolved matter in Scotland.
4. This government recognises that our primary objective in youth justice is to stop young people being drawn into crime with consequent blighting of their life chances as well as the harm caused to victims and communities by their crimes.
5. When children do come into the system we want to divert them where possible, with custody and other sanctions only used as a last resort. Insofar as criminal records are concerned, we recognise that children who offend may benefit from a second chance following their earlier errors, and that current legislation allows for appropriate rehabilitation.
Background: An overview of the legal framework
Creation, retention and deletion of information
6. Anyone who is convicted of a recordable offence, or who is cautioned, reprimanded, warned or arrested for such an offence, will have a “nominal record” of that conviction placed on the Police National Computer (PNC). It is police policy to retain a person’s PNC record until he or she reaches 100 years of age. This is for police operational reasons and in the interest of the prevention and detection of crime. Previous convictions are also retained for use in court sentencing.
7. Chief Constables “own” the data that their force has entered onto the PNC. They can exercise their discretion, in exceptional circumstances, to delete non-court disposals, such as cautions, which are owned by them and held on the PNC as well as any non-conviction outcome. Examples of circumstances in which deletion should be considered include where there is corroborative evidence of a malicious or false allegation; and where someone arrested at the outset of an enquiry is subsequently eliminated as a suspect.
8. Since May 2010, local police intelligence, such as details of allegations or investigations that did not lead to any further action, are recorded on the Police National Database (PND). The review, retention and disposal of police information, including on the PND, is governed by the Accredited Professional Practice (APP) – Management of Police Information issued by the College of Policing. Police information is divided into four groups based on an assessment of the risk posed by the person to whom intelligence relates. Scheduled reviews take place at intervals specified for each group.
The Rehabilitation of Offenders Act 1974 (ROA)
9. The ROA provides for all cautions and most convictions to become ‘spent’ after a specified period of time (the rehabilitation period) which varies according to the type of criminal disposal. The offender is then regarded as ‘rehabilitated’ for the purposes of the Act. MoJ leads on the ROA and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, but the legislation governing criminal records certificates falls within the responsibilities of the Home Office.
10. The ROA entitles a rehabilitated person to conceal their spent cautions and convictions for most purposes, for example when applying for most jobs or insurance. All unspent convictions must always be declared if requested. Unspent convictions – or any failure to disclose them - can be taken into account by any employer. Under the ROA it is unlawful for employers to take spent convictions into account in assessing suitability for work.
11. Rehabilitation periods (the period before which a conviction becomes spent) for convictions received when an individual is aged under 18 are generally half the length of those that apply to adults. However no conviction resulting in a custodial sentence of four years or more, or a public protection sentence of any length, can become spent (this applies to both adults and young people).
The Exceptions Order
12. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (the Exceptions Order), outlines some circumstances where spent cautions and convictions are nonetheless disclosable and may be taken into account when assessing a person’s suitability for certain positions.
13. Part V of the Police Act 1997 is linked directly to the provisions of the Exceptions Order. The activities and occupations set out in the Exceptions Order provide the basis for eligibility for either a standard or enhanced criminal record certificate issued in accordance with ss 113A and 113B of the 1997 Act (eligibility for enhanced certificates being determined by regulations made under the 1997 Act).
Filtering
14. Prior to 2013, all convictions, cautions, reprimands and warnings, spent or otherwise, which were recorded on central records (i.e. the Police National Computer (PNC)) had to be disclosed on a standard or enhanced criminal record certificate (see paragraph 17) issued by the Disclosure and Barring Service (DBS).
15. Following the Court of Appeal judgment in R (T) v Chief Constable of Greater Manchester and Others [2013] EWCA Civ 25, a system to remove, or ‘filter’, old and minor convictions from an individual’s criminal records certificate was introduced in 2013. Government changed the law in May 2013 to enable old and minor convictions, cautions, reprimands and warnings to be filtered so that they do not automatically appear on a criminal record certificate. The arrangements are set out in the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013, available at:
www.legislation.gov.uk/ukdsi/2013/9780111537749/contents.
The Exceptions Order now also includes provision for filtering. These amendments were made to the Exceptions Order by the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2013, S.I. 2013/1198
Disclosure Certificates
16. Any individual may request a basic disclosure certificate, which shows unspent conditional cautions and convictions. For the occupations and activities listed on the Exceptions Order, the DBS issues criminal records certificates. Policy responsibility for the Police Act 1997 and positions which are eligible for an enhanced check (listed in regulations made under the Act) sits with the Home Office. Policy responsibility for the Exceptions Order, and any amendments to it, sits with the MoJ.
17. The Disclosure and Barring Service (DBS), a non-departmental public body which was established under the Protection of Freedoms Act (PoFA) 2012, provides access to criminal record information through its disclosure service for England and Wales and bars individuals who may pose a risk to the vulnerable from working in certain roles.
18. The service enables organisations in the public, private and voluntary sectors to make safer employment decisions by identifying candidates who may be unsuitable for certain work, especially that which involves vulnerable groups including children.The system for disclosing criminal record information balances safeguarding the vulnerable against respecting the individuals right to privacy.
19. A DBS check may be requested as part of an organisation’s pre-recruitment checks following an offer of employment, including volunteering roles and applications for specific licences. Decisions on when and whether to undertake a DBS check are a matter for the relevant employer or regulator. With the exception of certain regulations which apply to the education and health sectors, the law only provides eligibility for DBS checks. Government does not prescribe those who should obtain a disclosure certificate.
20. The DBS provides three types of Criminal Records Checks:
21. The roles and activities which are eligible for criminal record checks are set out in statute. Broadly speaking, checks are only available in relation to jobs which involve special risks and sensitivities, such as working closely with children or vulnerable adults. For example, a solicitor or accountant would be eligible for a standard DBS check as these roles are captured by the Exceptions Order, whilst an individual who will be working with children in a supervised capacity will be eligible for an enhanced DBS check, as set out in the Police Act.
22. Those roles eligible for enhanced with barred list checks are set out in Safeguarding Vulnerable Groups Act 2006. This act sets out arrangements for the barring of persons considered unsuitable from a range of work known as “regulated activity” – mainly work involving regular and close contact with children or vulnerable adults.
23. Criminal record checks are an important part of safeguarding vulnerable people and helping employers ensure that they only take on those who are suitable for the job concerned. However, the Government is committed to supporting ex-offenders in getting back into meaningful work and one aspect of that is ensuring that the system for disclosing criminal records is balanced and proportionate
24. Applications for a standard or enhanced certificate must countersigned, or transmitted to the DBS, by a person registered with the DBS for that purpose (a ‘registered person’), which could be a prospective employer. An application must be accompanied by a statement by the registered person that the applicant is eligible for the check. If someone has submitted an application form for a check following a request from a current or prospective employer but are unsure that the position they have applied for is eligible, they can contact the DBS to investigate.
‘Relevant’ police intelligence
25. Disclosure of non-conviction information, such as details of arrests recorded on the PNC or police intelligence recorded on the PND, for an enhanced check is not automatic but is done on a case-by-case basis following the exercise of police discretion.
26. The relevance test for the release of local police information has been strengthened. Under section 113B(4) of the Police Act 1997 (as amended by the Protection of Freedoms Act 2012) the test the police use when deciding whether to disclose non-conviction information is whether the chief officer “reasonably believes it to be relevant” for the purpose of the check and whether in his or her opinion it ought to be included. (Previously, section 113B(4) only required the police to form the opinion that the information “might” be relevant before it should be disclosed.)
27. In addition to the new relevance test, the Protection of Freedoms Act 2012 introduced a requirement that the police consider statutory guidance published by the Government when deciding whether to disclose non-conviction information, and an independent disputes process for people to challenge inaccurate or inappropriate disclosure by way of an application to an independent monitor.
28. Statutory guidance to chief officers of police on providing information for inclusion in enhanced criminal record certificates was issued by the Home Office in September 2012, with a revision issued in August 2015. This sets out the principles to be applied when deciding what, if any, information should be provided for inclusion in an enhanced criminal records certificate. Principle 1 is that there should be no presumption either in favour of or against providing a specific item or category of information. Principle 2 includes consideration of whether particular information is sufficiently current and requires chief officers to take into account ‘the age of the applicant at the time’.
29. The independent monitor also has responsibility for reviewing a sample of cases in which police non-conviction information is provided on enhanced criminal record certificates to ensure compliance with the statutory guidance. His annual report for 2014[1] noted no significant areas of concern in this respect.
The appropriateness and effectiveness of the statutory framework applying to the disclosure of such records to employers and others.
30. The legislative scheme continues to be appropriate and effective. The Government is committed to supporting ex-offenders in getting back into meaningful work and one aspect of that is ensuring that the system for disclosing criminal records is balanced and proportionate.
31. The scheme takes account of the type of offence, the age of the offender at the time, the disposal received, any further offences committed by the individual, and the time that has since elapsed.
32. The policy underpinning the Exceptions Order reflects that, while it is generally desirable to facilitate ex-offenders into employment, the public must remain adequately protected. Those areas of activity included in the Exceptions Order are activities requiring a high degree of trust, often involving vulnerable persons, and therefore where it is appropriate that an employer should know a person’s fuller criminal history before an offer of employment is made and consideration can be given to any necessary safeguards to be put in place.
33. The list of occupations and activities on the Exceptions Order is wide ranging and covers not only the safeguarding sector but also, for example, the financial and criminal justice sectors, parts of the security industry, home inspectors, traffic wardens, taxi drivers, etc. It is important to emphasise that in every case where disclosure is made it remains for employers, who understand the nature of the job, to determine the relevance of the caution and conviction information disclosed and to make objective decisions on the suitability of applications on this, and any other, relevant information.
34. The Exceptions Order is reviewed and updated as necessary and the Government considers this provides the correct balance between rehabilitation of offenders and public protection in respect of the most sensitive occupations.
35. In addition to the safeguard provided by the Exceptions Order (thereby prescribing the circumstances in which certain provisions of the ROA are not applied), organisations registered with Disclosure & Barring Service (Registered Bodies - RBs) are required to comply with the DBS code of practice. This requires RBs to have a written policy on the suitability of ex-offenders that is available on request to potential applicants, ensure that all applicants for relevant positions or employment are notified in advance of the requirement for disclosure, notify all potential applicants of the potential effect of a criminal record history on the recruitment and selection process and any recruitment decision, and discuss the content of the disclosure with the applicant before withdrawing any offer of employment.
36. The effect of the DBS code of practice is that proper consideration must be given to a person’s offending history and the reasons for it. The Secretary of State has powers under the Police Act 1997 (Criminal Records) (Registration) Regulations 2006 to suspend or cancel the registration of a person who has failed to comply with the code.
37. Different employers will find different information relevant and for different reasons, based on the individual job description and potentially wider responsibilities the individual may be asked to undertake. For example an applicant for a teaching job may have a driving conviction. This may not be directly relevant to the suitability of the applicant to become a teacher, but the school may find it useful to know about this conviction as it may consider that the individual should not be allowed to drive the school minibus. There are, therefore, nuanced decisions to be made in each case.
Whether the statutory framework applying to the disclosure of youth criminal records, and the way in which it is operated in practice, strike an appropriate balance between protection of employers and the public, on the one hand, and the rehabilitation of people committing offences when young, on the other hand.
38. The disclosure of cautions and convictions for sensitive occupations and activities is an area where public protection is paramount.
39. A disclosure certificate should inform an employer’s recruitment decision for sensitive positions of trust, but it does not provide ‘clearance’ to work. The recruitment decision rests with the employer and they should discuss a certificate’s content with the applicant. Certificates should always be used alongside references from previous employers, and the inclusion of offences on a certificate does not automatically prevent individuals from working with vulnerable groups.
40. The Government believes that a balanced judgment should be exercised and that employers must take each case on its own merits and not withdraw employment offers solely on the basis of a spent caution or conviction. Balanced recruitment decisions should have regard to such factors as:
41. The DBS issues a Code of Practice for Registered Bodies, which emphasises the importance of fairness and openness on the part of employers when utilising disclosure information. It includes a requirement for all Registered Bodies to have a written policy on the suitability of ex-offenders for employment in relevant positions.
42. In designing the current framework (including the changes made in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 discussed in the following section) the Government sought to secure a balance between allowing for rehabilitation, maintaining appropriate safeguards in relation to sensitive positions and occupations, and ensuring a workable system which could be implemented within a reasonable time and which was sufficiently nuanced as well as sufficiently certain. The scheme had to be readily understood and certain so that individuals would know what was protected from disclosure.
The effects in respect of the disclosure of such records of changes made in 2013 to the filtering of offences from criminal record checks and in 2014 to rehabilitation periods
The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 amended section 5 of the ROA and these amendments came into force on 10 March 2014. It introduced reforms to ensure that convictions resulting in a custodial sentence of four years or less may now become spent (with the exception of public protection sentences). Before this point only convictions which led to custodial sentences of 30 months or less could become spent. Most rehabilitation periods were shortened at the same time.
Filtering offences from criminal record checks
43. Before filtering was introduced an application for a criminal record certificate meant that the Disclosure and Barring Service was required to disclose details of all criminal convictions, cautions, reprimands and warnings held on police central records, whether spent or unspent under the ROA, where the Exceptions Order applies.
44. The Exceptions Order was amended in May 2013, following a Court of Appeal judgment (R (T) v Chief Constable of Greater Manchester and Others [2013] EWCA Civ 25). Old and minor spent cautions and convictions are now protected from routine disclosure.
45. In that case, the Court of Appeal held that the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions Order) 1975 were incompatible with article 8 of the European Convention on Human Rights in that they provided for the disclosure to employers of, and allowed employers to ask about and take into account, all spent convictions and cautions on a blanket basis. The Court held that was disproportionate. The Government responded to the judgment by legislating to protect certain spent convictions and cautions from disclosure, taking into account the type of offence, the disposal given, the age of the offender, the number of convictions and how much time had elapsed since the conviction. The process of removing relevant spent convictions and cautions from criminal record certificates is known as filtering.
46. The filtering system recognises that the balance between public protection and rehabilitation is best achieved by setting limits on the time for which convictions and cautions for most offences need to be disclosed. By incorporating much lower limits for penalties received below the age of 18, it acknowledges the special importance of assisting those who get into trouble when they are young to put the past behind them. However, it also allows for the principle that there are certain offences which are at a level of seriousness which means disclosure is always warranted. There are also some occupations and areas of employment where the filtering rules do not apply. For example, because of the nature of the responsibilities involved.
47. The filtering provisions provide for spent cautions and convictions not to be disclosed to employers where a certain period of time without further offending has elapsed:
The filtering provisions are not, however, available to anyone who has:
48. To ensure that the Government continues to enable employers to make appropriate recruitment decisions which safeguard children and vulnerable adults from harm, the Home Office have requested that the Law Commission undertake a limited review of the list of offences which must be disclosed. The Home Office and MoJ will jointly consider any proposals which may improve the Government’s ability to safeguard vulnerable people once the report is published.
Impact on disclosures
49. The introduction of filtering has substantially reduced the number of convictions and cautions disclosed on criminal record certificates issued by the DBS. That reduction is proportionately more significant in relation to penalties received by people when under 18 years of age as the qualifying periods for filtering both convictions and cautions are substantially shorter those applied to penalties received by adults.
50. In 2015/16, the DBS issued 4.2 million certificates. Of those certificates, approximately 359,000 (8.5%) would have resulted in a disclosure of a conviction or caution recorded on PNC if filtering rules were not applied. On application of these rules the disclosure of PNC information fell to approximately 241,000 (5.7%). Therefore, in 2015-16 approximately 118,000 applications benefitted from filtering arrangements and as a result were issued with a certificate with PNC information removed.
Justification for the 2013 changes
51. The then Secretary of State for Justice laid the draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 and the draft Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 before Parliament on 26 March 2013.
52. These orders were considered and approved by the Second Delegated Legislation Committee of the House of Commons on 20 May 2013. Jeremy Wright (then Minister for Justice) explained
53. “…in effect, the changes mean that certain old and minor spent cautions and convictions will no longer be subject to disclosure under the Exceptions Order, and employers or other decision makers will not be able to take them into account when making decisions about any individual. However, I want to emphasise our commitment to maintaining public protection and security. For example, full disclosure of spent cautions and convictions will still be required in respect of employment and other decisions in relation to safeguarding national security and recruitment to the police service.
Under the provisions, all cautions and convictions for serious violent and sexual offences, and for certain other specified offences, will always remain subject to disclosure. In addition, all convictions for any offences that are so serious they result in a custodial sentence will remain subject to disclosure” (Col. 4).
54. The draft orders were supported by the Opposition and were also considered and approved by the Grand Committee of the House of Lords. The orders were then made on 22 May 2013 and came into force on 29 May 2013.
55. As ministers explained in both Houses, the policy on filtering set out in the draft orders took into account the issues raised in the Court of Appeal judgment (R (T) v Chief Constable of Greater Manchester and Others [2013] EWCA Civ 25), for example the disposal given, the offence committed, the age of the offender and the period which had elapsed since the caution and conviction.
56. The issue of which offences should remain subject to disclosure, regardless of disposal, was resolved by relying on decisions already taken by Parliament to identify serious offences which could attract the dangerous offender provisions in the sentencing framework (i.e. the specified violent and sexual offences listed in Schedule 15 to the Criminal Justice Act 2003), and other legislation dealing with the suitability of people to work in the safeguarding sector. The amendments are therefore not based on an arbitrary list of individual offences. Rather, the amended Order incorporates categories of offences already established in other legislation and accepted by Parliament as being serious.
57. The amended Exceptions Order takes account of Parliament’s concern that public protection should not be compromised, bearing in mind the nature of the activities covered by the Order. And it does so while remaining workable.
58. The Government believes that this continues to be the correct and appropriate position. The Home Office and the Ministry of Justice worked to develop a practical scheme which could be readily understood by individuals, which helped to rehabilitate those who wished to turn their lives around, and which also protected the public.
11 November 2016
[1] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/480014/Independent_Monitor_for_the_Disclosure_and_Barring_Service_-_Annual_Report_2014.pdf