Although there is nothing to stop employers asking applicants for details of any criminal convictions, under the Rehabilitation of Offenders Act 1974 certain offences become 'expired' after various periods of time and must be ignored. Other than jobs which are exempt, taking account of an offence after it has been time-expired breaches the Act.

New Legislation

To assist employers knowing whether applicants have a criminal record, under the Police Act 1997, the Criminal Records Agency was set up to provide a range of certificates giving details of criminal convictions. The Agency is now able to issue two of the required certificates, with the first certificate expected to be made available by early 2005.

The following certificates are now available:

  1. Criminal Conviction Certificates are available to individuals and (with the individual's agreement to employers) give details of all 'unspent' convictions.

  2. Criminal Record Certificates available to both individuals and registered employers in respect of occupations exempt from the Rehabilitation of Offenders Act (e.g. those working with children and vulnerable adults etc.).

  3. Enhanced Criminal Record Certificates relating to those working on a regular unsupervised basis with children, for licensing purposes and relating to judges and magistrates prior to appointment are available to both individuals and registered employers.

Job Offers

The provision of these certificates is a valuable service to employers since they will be able to make job offers conditional on:

  • receipt of a satisfactory reference;

  • completion of a satisfactory probationary period; AND

  • receipt of a clear CRB certificate.

An application from someone who does not agree to a prospective employer applying for a certificate should be discarded.

Policy

  1. Where a person applies for a position, the Organisation will not take into account previous time-expired convictions as laid down in the Rehabilitation of Offenders Act and will, should it be made aware of such previous convictions, endeavour to assist in any way possible, the applicant to find and adapt to employment.

  2. Applicants should apply to [name] for such assistance, and may do so in complete confidence.

  3. Where questions are required to be asked regarding past records, these will reflect the principles of the Act and will thus be composed taking into account the 'time-expired' nature of the offence.

  4. Should an employee be convicted of an offence, the circumstance of and type of offence will be considered in relation to their continued employment, before a decision is made regarding retention. If it is felt that the offence is not one which affects continuation of the employment, i.e. it has no bearing on the type of work being carried out, then employment may be able to continue. If a custodial sentence is imposed, in excess of the time that could be covered by the application of the leave of absence and holiday amalgamation rules, it may be necessary to treat the contract as having been terminated, and, thus, the employment as having ended. However, this will not preclude the employee from applying to rejoin the Organisation on release, when the application will be considered.

  5. Managers will familiarise themselves with rehabilitation periods. In the following list the offence is shown first with the rehabilitation period following it. Periods commence with the date of conviction, and if a further offence is committed, the rehabilitation period may be extended.

    1. Disqualification orders, or orders imposing a penalty, etc.: Until the order ceases.

    2. Absolute discharge, discharge by children's hearing under Social Work (Scotland) Act: 6 months.

    3. Remand home or approved school custody: 1 year after cessation of order.

    4. Conditional discharge, care supervision and approved school orders: 1 year from date of conviction or the order ceases, whichever is the longer.

    5. Probation orders (person aged under 18) 2 years from date of conviction or date probation order ceases (whichever is longer) (person aged over 18) 5 years from date of conviction.

    6. Detention of up to 6 months, order for detention in Centre: 3 years.

    7. Mental hospital order: 5 years from conviction or 2 years from the cessation of the order whichever is longer.

    8. Fine or other sentence subject to rehabilitation: 5 years.

    9. Borstal training, detention of over 6 but not more than 30 months, imprisonment or youth custody for 6 months or less: 7 years.

    10. Imprisonment or youth custody for over 6 months but less than 30 months: 10 years.

  6. The following sentences are not subject to the Act and hence do not become spent at any time:

    1. Life imprisonment (and life custody).

    2. Imprisonment or youth custody for a period in excess of 30 months.

    3. sentence of preventive detention.

    4. a sentence of detention during the Sovereign's pleasure.


Note

The Act does not apply to teachers (and anyone dealing with the young), accountants, etc., whose offences must be declared irrespective of the age of the offence.

Drivers

To check a driver's record, questions must be posed in a similar manner related to the offence expiry periods.

  • In the last 4 years have you received an endorsement (or penalty points) for a driving offence?

  • In the last 5 years have you received a fine for a driving offence?

  • In the last 7 years have you received a prison sentence of less than 6 months in respect of a driving offence?

  • In the last 11 years have you received a penalty in respect of a drink/driving offence?

If so, in each case, please give details.

Applicants should be told that failure to provide accurate answers, will be regarded as gross misconduct since the information provided is the basis on which insurance cover is provided. Inaccurate information may lead to the employee driving without insurance cover and/or the insurer refusing to accept a claim - potentially leaving the driver (and ultimately the employer) to pay costs and/or compensation incurred.

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