The main act regarding the recruitment of ex-offenders is The Rehabilitation of Offenders Act 1974 (“1974 Act”). This exists to support rehabilitated ex-offenders back into employment.
This Act applies to England, Wales and Scotland but there are some differences in interpretation in Scotland which are described here – please see page 3.
The relevant legislation for Northern Ireland can be found in the Rehabilitation of Offenders (Northern Ireland) Order 1978 and the latest version of the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 can be found here.
When is a conviction actually spent?
An ex-offender is regarded as rehabilitated when their conviction is spent.
A conviction is spent after the total custodial sentence length plus a buffer period of rehabilitation which varies according to the length of the sentence so:
Sentence: Community order or youth rehabilitation order 1 year.
Buffer period: 1 Year.
Sentence: Fine.
Buffer period: 1 Year.
Sentence: Custodial sentence up to 6 months.
Buffer period: 2 Years.
Sentence: Custodial sentence 6 months to 30 months.
Buffer period: 4 Years.
Sentence: Custodial sentence 30 month to 48 months.
Buffer period: 7 years.
Sentence
Custodial sentence over 4 years of a public protection sentence. The conviction is never spent.
Buffer period: Never spent.
The above buffer period is halved for those under 18 years of age at the time of the conviction.
There are some convictions that are never removed from a DBS certificate and these can be found here.
Fixed penalty Notices or Notices for Disorder are not included.
Source: Rehabilitation of Offenders Act 1974 correct at the time of publication for England & Wales – Oct 2020.
It is important to note that the Rehabilitation of Offenders Act 1974 differs for Scotland and Northern Ireland and therefore we recommend that you seek specific guidance relevant to your location.
Recruiting an ex-offender
You’re possibly not aware, but there is a code of practice relating to the treatment of DBS applicants who have a criminal record. The code says that registered bodies must have a written policy in this respect. The DBS has a sample policy to help with this. It can be found under Item 3 on this page:
DBS Sample policy for the recruitment of ex-offenders.
This also gives most helpful guidance including the fact that you can only apply for criminal record checks for ex-offenders after a thorough risk assessment which indicates that such a check is both proportionate and relevant to the position concerned.
Making a balanced judgement around a risk assessment
The following factors will help you consider whether or not someone is suitable for the role you are trying to fill. The Code of Practice says these should be considered by someone who is suitably trained to identify and assess the relevance and circumstances of offences:
– How old were they when they committed the offence?
– How long ago was it?
– Did it happen once only, or is there a patterns of offending?
– What was the actual offence?
– Is the offence relevant to the post you are advertising?
– What else do you know about the person’s behaviour before or after the offence?
If you have decided that a DBS check is essential to the role you are advertising this must be stated on job adverts, application forms and recruitment briefs. This is a complex area of legislation and therefore we strongly recommend that you seek professional legal advice if you are at all unsure.
Disclaimer:
The information contained within this blog is intended to offer an brief overview of the considerations required when considering the recruitment of ex-offenders and cannot be relied upon in any circumstance.