People with convictions: changes to rules on the rehabilitation of offenders

Data shows that the impact of these changes will be wide-reaching. Taking just 2022 as an example, Government figures indicate that some 125,000 people sentenced in that year will benefit from reduction to the rehabilitation period: the period after which a conviction is treated as “spent” and no longer needs to be declared when applying for employment.

The Government aims to reduce reoffending by helping people with convictions to move on and turn their back on crime. Justice Secretary Alex Chalk KC acknowledged that carrying the weight of life-long criminal records was a huge barrier to reintegration into society. He said that helping ex-offenders to get a job and steady income was directed at reducing reoffending and that that would then ensure fewer members of the public became victims of crime.

Although it is to be seen whether this approach works, there is good evidence that taking a rehabilitative approach is likely to be more successful than simply imposing harsher sentences. Siddhartha Bandyopadhyay, Professor of Economics at Birmingham University, identifies economic benefits . He highlights the impact of a shift in focus from prison to rehabilitation in Norway some 20 years ago. This was followed by large reductions in re-offending rates. He states that in the UK there is a reoffending rate of about 50% within a year whereas in Norway the rate is about 25% over five years.

What are the changes?

Key changes are as follows:

• Previously the convictions of those sentenced to over 4 years were never spent. Under the new rules they will be spent after 7 years.
• For sentences up to 4 years, there was a sliding scale of rehabilitation periods between 2 years and 7 years. Under the new rules, the rehabilitation period will be one year for a sentence of 12 months or less and 4 years for sentences of up to 4 years.
• Community orders (which might, for example, include carrying out community service for a charity or cleaning graffiti) will be spent when the order ceases.

In general, rehabilitation periods for those who committed offences when under 18 are half those applying to adults.

There is an exception to these changes: convictions for serious sexual, violent or terrorist offences are never treated as spent.

What does this mean for employers?

Once a conviction is spent, the individual concerned is treated for all purposes as a person who has not been convicted or sentenced. This means that those applying for a job do not need to disclose it. Employers cannot ask a job applicant to disclose spent convictions – and if they do, the applicant is allowed to lie about it. If an employer discovers that an employee has a conviction which is spent, that is not a proper ground for ending employment.

Although employers need to be aware of the changes, there are no direct implications. That said, the change in policy is likely to lead employers to re-examine their approach to asking for information on convictions and to ask questions such as:

• Do we need information on whether someone has a conviction?
• If an individual has a conviction, how do we decide whether to employ them?
• What factors should we take into account?

We discuss this in more detail in this Insight in which we considered how employers can proactively support people with convictions into employment and the schemes in place to support this often-marginalised group.

Regulated activity - working with children and vulnerable adults

The changes outlined above do not affect employers who carry out “regulated activity” – for example working with children or vulnerable adults. This means that organisations such as schools, health centres and care homes, football clubs with youth teams, choirs and charities can continue to carry out enhanced DBS checks. These checks will cover all convictions even if, in other contexts, they are spent.

But what about Fireman Sam?

As well as reducing the rehabilitation period, the Government has created a new exception to the rehabilitation rules enabling Fire and Rescue Authorities to obtain standard DBS checks and to ask job applicants about convictions even if they are spent. There is a similar exception for chartered management accountants. CIMA, the Chartered Institute of Management Accountants, is permitted to ask members and prospective members about convictions even if they are spent.