In this first blog in our mini-series on youth justice, we provide a a brief guide to the Rehabilitation of Offenders Act for young people. This includes addressing issues such as: how long criminal records need to be disclosed for; the impact on applying for employment or further education; filtering rules for criminal records certificates; and recent developments.
“How long do I have to disclose my youth criminal record for?”
The Rehabilitation of Offenders Act 1974 (“ROA”) provides that after a specified period certain convictions and cautions become “spent”. This means that an individual is treated as rehabilitated in respect of that offence and is not obliged to disclose a caution or conviction when applying for most jobs and/or educational courses.
The rehabilitation period that applies to a conviction will depend on the seriousness of the offence (which is determined by the sentence handed down) and the age of the offender at the time they received a conviction or caution. Rehabilitation periods are shorter where the individual was convicted or cautioned while under the age of 18.
The provisions of the ROA apply in respect of all convictions and cautions, except for those where the individual has received a custodial sentence of longer than four years, or an indeterminate sentence.
Applying for employment
Once your conviction is spent, the ROA gives you the right not to disclose the conviction when applying for certain jobs. However, there are certain professions where spent convictions and cautions will always be disclosable. These exceptions are set out in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“Exceptions Order”) and include jobs such as, medical practitioners and accountants. See here for the complete list.
Filtering rules for criminal records certificates
In certain situations minor and historic convictions, cautions, reprimands and warnings are protected from disclosure and are no longer automatically subject to routine disclosure in standard or enhanced criminal record certificates. This means that certain offences will be “filtered” from certificates issued by the Disclosure and Barring Service (“DBS”). There are some occupations and areas of employment where the filtering rules do not apply because of the nature of the responsibilities involved.
A young person’s conviction will be removed from a criminal record certificate if the following criteria are met:
- The offence is not categorised as “listed offence”, as set out in article 2A(5) of the Exceptions Order (listed offences include: sexual or serious violent offences and offences relating to safeguarding vulnerable people);
- 5.5 years have elapsed since the date of the conviction;
- The offence did not result in a custodial sentence; and
- It is the individual’s only offence.
A young person’s caution will be removed from a criminal record certificate, once 2 years have passed since the date of the caution and only if the offence is not a “listed offence” as set out above. It is important to note that offences relating to sexting as set out in the Sexual Offences Act 2003 are “listed offences” and so the ROA will not apply to filter out a caution for a young person who has accepted a caution for offences related to sexting and other online offences of a sexual nature.
Applying for further education
The University and College Admissions Service (“UCAS”) advises candidates to declare any “unspent” offences which can include any conditional cautions and convictions. You are not required to disclose a spent caution or conviction.
However, if you are applying for certain courses that prepare you for certain professions which would be exempt from the Rehabilitation of Offenders Act (eg which involve working with children or vulnerable adults) then the university will usually undertake an Enhanced Disclosure and Barring check. Candidates will also be asked to declare any unspent and/or spent convictions, cautions, reprimands or final warnings to the university directly.
It is important to note that confirming that you have a relevant criminal conviction or caution will not necessarily exclude you from the application process. According to the UCAS website, this information is “collected to help the universities and colleges consider the suitability of applicants for the course to which they have applied and to reduce the risk of harm or injury to students and staff caused by the criminal behaviour of other students.”
However, individuals facing the prospect of such a disclosure may want to obtain a subject access request from the police and obtain legal advice about the best way to make such a disclosure to ensure that the university or college understand the background to the offending behaviour. For example, a young person may have sent or received a sexual image of themselves or a friend (“sexting”) and received a caution for the possession of an indecent photograph of a child. Where appropriate, the information shared with the university should make clear that the image sharing was consensual or perhaps even an unpleasant prank gone wrong at a time of youthful immaturity where that is the case. Otherwise, the university may read the disclosure at first instance as a confirmation that the young person poses a risk to children.
On 23 February 2018, Lord Ramsbotham’s Private Members Bill (“Bill”) which amends the ROA had its second reading in the House of Lords. One of the most significant amendments within the Bill is that for both adult and youth offenders, custodial sentences of over four years would become spent four years after the end of the full sentence. As mentioned above, under the current regime they can never be spent. The Committee stage is yet to be announced.