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A Brief Guide to Spent and Unspent Convictions
What is the Rehabilitation of Offenders Act?
The Rehabilitation of Offenders Act 1974 (ROA) is in place to protect those with minor criminal convictions when applying for jobs.
This legislation sets the ‘rehabilitation period,’ where if an individual does not re-offend during this time, their conviction becomes spent. This means they have the legal right to not disclose their conviction when applying for certain jobs.
Ultimately, the purpose is to promote the re-integration of individuals with convictions back into society and give them a fair chance of recruitment.
- This act determines when criminal convictions can become spent
- Most roles are covered by the ROA
- However, those roles exempt are discussed in the Exceptions Order 1975 and the Police Act 1997. These exemptions give employers the grounds to carry out standard or enhanced checks where appropriate.
- The ROA also does not apply if the individual has received a prison sentence of over 4 years or more (Legal Aid, Sentencing and Punishment of Offenders Act 2012, Chapter 8, last revised March 2014)
What is the difference between spent and unspent convictions?
A spent conviction relates to a conviction which, after a certain period of time and in accordance with the Rehabilitation Act, is effectively ignored. For example, a spent conviction will not show on a basic DBS check.
These relate to convictions that either have not passed the rehabilitation period in accordance with the Rehabilitation Act or are convictions whose sentences make them exempt from the protection of the ROA. For example, these convictions would appear on a basic DBS check.
What does this mean for employers?
It is important to ensure that your recruitment process takes into consideration the relevant criminal record legislation and rules.
Please click here for more information regarding DBS eligibility
Key points to remember…
- All employers have the right to request basic disclosures.
- You have the right to enquire if any prospective employee has any unspent convictions. If not disclosed by the applicant, this would be an offence.
- In roles protected by the ROA, applicants have the legal right not to disclose convictions which are spent.
- Standard DBS checks can only be requested if an applicant applies for a role that is exempt from the ROA. These are reserved for those entering for example the solicitor/barrister profession, the chartered accountant profession or FCA regulated positions.
- Enhanced DBS checks can only be requested if an applicant applies for a role that is exempt from the ROA and covered by the Police Act regulations. These checks are normally reserved for roles which require direct work with children or vulnerable adults.
- It is a criminal offence to knowingly request a more in-depth check than a role is eligible for.
DBS guidance for employers:
- Ensure you review the DBS eligibility for each role you are recruiting. This means you need to determine the eligibility based on the nature of each job role rather than the nature of your organisation as a whole.
Ensure you include the level of check required in the job advertisement
Ensure you have a policy in place which states your organisation’s response to spent and unspent criminal convictions found during the recruitment process. Ensure your response is in accordance with the relevant legislation.
- Organisation = Law Firm
- Job Title = Paralegal
- Level of check = basic
- Reason = Standard DBS checks only apply to those entering the profession of a solicitor or barrister in England and Wales. Therefore, this role is eligible for a basic DBS check.
Online DBS service is available to request via Veriphy's secure system
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