The Rehabilitation of Offenders Act
The Rehabilitation of Offenders Act 1974 (ROA) sets out to improve the rehabilitation prospects of people who have been convicted of a criminal offence, served their sentence and have since lived on the right side of the law. The ROA provides that anyone who has been convicted of a criminal offence and sentenced to less than two and a half years in prison can be regarded as rehabilitated after a specified period with no further convictions. After the specified period the original conviction is considered to be spent. The specified period varies between 6 months and 10 years depending on the length of sentence. Convictions involving sentences of over 2.5 years are never spent.
The general rule is that, once a conviction is spent the convicted person does not have to reveal it and cannot be prejudiced by it. This means that if an ex-offender whose convictions are all spent is asked on a job application form, or at a job interview, whether they have a criminal record they do not have to reveal or admit its existence. Moreover, an employer cannot refuse to employ someone or dismiss someone because of a "spent" conviction.
The Exceptions Order
However, there are some categories of employment and proceedings to which the Act does not apply. In these cases, even spent convictions must be disclosed. This is mainly in employment positions which require a particular level of trust. The Act provides an order making power to specify the types of employment and proceedings that are excluded from the Act and where disclosure is required. The purpose of this is to protect the public. It does not necessarily debar ex-offenders from types of work set out in the Order, but entitles the employer to ask about spent convictions if the work is covered by the Order. The current provision for Scotland is the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013, amended by;
The type of employment where questions about spent convictions can be asked include work in the financial sector, in child care positions, care services and health professions. Positions involving a particular level of trust, such as work in the in childcare and health professions, have to be exempt from the provisions of the ROA to ensure there is adequate protection for children and vulnerable people in particular. It is important to strike the right balance between supporting the rehabilitation of offenders and the need to protect the public.
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