Do you have any unspent criminal convictions?
Section H of
the Disclosure application form asks applicants whether they have any unspent
convictions. This guidance will help you answer this question and address
connected issues.
Click on a heading below or scroll down
What is an
unspent conviction?
Spent
convictions on Disclosures
Cautions,
reprimands, warnings and fixed penalty notices
Employer
attitudes
Wiping
criminal records
Rehabilitation periods for criminal offences
Rehabilitation periods for motoring offences
Rehabilitation periods for multiple convictions
Concurrent
and consecutive sentences
What is an unspent
conviction?
A criminal
conviction is a finding of guilt by a magistrates' or crown court. Under the
Rehabilitation of Offenders Act 1974, most criminal convictions can become
'spent' or forgotten after a 'rehabilitation period'. For example, a conviction
that leads to a fine, which is the most common penalty, has a rehabilitation
period of five years, or two-and-a-half years if the person was aged under 18 at
the time of conviction. Most community penalties also become spent after five
years, two-and-a-half years for juveniles. Prison sentences have longer
rehabilitation periods. Prison sentences of more than two-and-a-half years can
never become spent.
A full list of
the main sentences and orders and their rehabilitation periods are set out in
the table in the section on
Rehabilitation periods for criminal offences.
If your
conviction is for a motoring offence, see the section on
Rehabilitation periods for motoring convictions.
If you have more
than one conviction, see the section on
Rehabilitation periods for multiple convictions.
Note that both spent and unspent convictions will show up on Disclosures.
Spent convictions on Disclosures
If your conviction is spent under the Rehabilitation of Offenders Act, you can
put a cross in the ‘No’ box. If it is unspent, you need to cross the ‘Yes’ box.
However, spent as well as unspent convictions will appear on Criminal record Disclosures. This
is because the certificate you are applying for – either a Standard or Enhanced
Disclosure – is for a post that is supposed to be exempt from the Rehabilitation
of Offenders Act. The sorts of jobs that are exempt from the Act include work
with children and vulnerable adults, health service posts, ‘approved persons’ in
financial services, private security work and taxi driving.
In reality, employers often run Standard and Enhanced Disclosure Criminal record checks on posts
that are not exempt from the Rehabilitation of Offenders Act. Though these
checks are unlawful, employers usually get away with this and there is little
that anyone can do about it.
Cautions,
reprimands, warnings and fixed penalty notices
A caution is a formal warning administered by a senior police officer in a
police station. Reprimands and final warnings are a form of caution for
juveniles, also administered by a senior police officer, usually in a police
station. None of these are criminal convictions as such, so do not have a
rehabilitation period and cannot be spent or unspent under the Rehabilitation of
Offenders Act.
Therefore, if you only have a caution, reprimand or final warning but no
convictions, you can cross the ‘No’ box.
However, unless they are very old, cautions, reprimands and final warnings will
normally show up on Disclosures.
Formal warnings given on the street for possession of small amounts of cannabis
are not final warnings and will not normally show up on Disclosures.
Fixed penalty notices are also not convictions and will not normally show up on
Disclosures. Fixed penalty notices are normally given to motorists caught on
camera for speeding and other motoring offences. Increasingly they are being
used for other less serious offences such as shoplifting and public order
offences.
Employer
attitudes
If you disclosed your record when you applied for your job, in most instances a
Disclosure check will not affect your employment. The Disclosures will only
confirm what your employer already knows.
If you did not disclose your record, you are more likely to be dismissed,
especially if you were asked to disclose. It is relatively easy for employers to
dismiss you during the early stages of employment because employees have few
legal rights. However, employees who have worked for an organisation for a year
or more do have stronger legal rights and so may have a case for unfair
dismissal if the employer’s action is unreasonable.
Your criminal
record
Your record will stay on the Police National Computer (PNC) or local police
systems even after it has become spent – it will not be wiped.
In the past, minor records could be wiped from the PNC. This is no longer the
case. Records are now effectively kept for life. The police are intending to
introduced ‘step down’ arrangements at some point. These arrangements mean that
although a step down record will still be available for court and policing
purposes it will not normally be available for employment vetting purposes and
so will not show up on a Disclosure. However, the periods that have to elapse
before a record is stepped down are very long and, as a result, most people will
not benefit from the arrangements if they are introduced.
If you wish to find out about your record, perhaps before you agree to a
Disclosure check, you can carry out a ‘subject access’ check on yourself under
the Data Protection Act. To do this, you need to obtain a subject access form
from the police. You can obtain the form by contacting your local police
headquarters or by going on to the police force’s website. Some police stations
also have copies of the forms. The checks cost £10, but can take up to 40 days
to complete.
Rehabilitation
periods for criminal offences
The length of
the rehabilitation period depends on the sentence given - not the offence
committed. For a custodial sentence, the rehabilitation period is decided by the
original sentence, not the time served.
The following sentences become spent after fixed periods from the date of
conviction:
|
Sentence |
Rehabilitation
Period
If you were aged under 18
when convicted |
Rehabilitation
Period
If you were aged 18 or over
when convicted |
|
Prison
sentences(1) of 6 months or less |
3 1/2 years |
7 years |
|
Prison
sentences(1) of more than 6 months to 2 1/2 years |
5 years |
10 years |
|
Borstal |
7 years |
7 years |
|
Detention centre |
3 years |
3 years |
|
Fines,
community orders(2), compensation, probation(3), community
service(4), combination(5), action plan, curfew, drug
treatment and testing, and reparation orders |
2 1/2 years |
5 years |
|
Absolute discharge |
6 months |
6 months |
|
Sentence |
Rehabilitation
period |
Rehabilitation period |
|
|
If you were aged under
12-14 when convicted |
If you were aged
15-17 or over when convicted |
|
Detention and training order of 6 months or less |
1 year after the order
expires |
3 1/2 years |
|
Detention and training order of more than 6 months |
1 year after the order
expires |
5 years |
|
Sentence |
Rehabilitation
period |
|
Probation(6), supervision, care order, conditional discharge and
bind-over |
1 year or until the order
expires (whichever is longer) |
|
Secure
training and attendance centre order |
1 year after the order
expires |
|
Hospital order |
5 years or 2 years after
the order expires (whichever is longer) |
|
Referral order |
Once the order expires |
Notes:
(1) Including suspended sentences, youth custody, and detention in a
young offender institution
(2) The generic
community order has replaced compensation, probation, community service,
combination, action plan, curfew, drug treatment and testing, and reparation
orders.
(3) For people convicted since 3 February 1995. Probation orders were
renamed community rehabilitation orders and have now been replaced by the
generic community order.
(4) Community service orders were renamed community punishment orders
and have now been replaced by the generic community order.
(5) Combination orders were renamed community punishment and
rehabilitation orders and have now been replaced by the generic community order.
(6) For people convicted before 3 February 1995.
Rehabilitation periods for motoring offences
If you have
received penalty points following an endorsement, the rehabilitation period is
five years. The period for a disqualification is the length of the
disqualification. However, if you were disqualified for, say, one year and
fined, which takes five years to become spent, the longer rehabilitation period
applies.
An endorsement cannot affect the rehabilitation period of a motoring conviction.
For example, if you were fined for drink driving and had your licence endorsed,
the rehabilitation period would be five years (the length applying to the fine)
rather than 11 years (the length of time under the Road Transport Act before you
were entitled to a clean driving licence).
Note that the
payment of a fixed penalty notice for a motoring offence does not result in a
conviction, unless you dispute the penalty, in which case you may be taken to
court and convicted.
Rehabilitation
periods for multiple convictions
The Act is
complicated in cases where people have several convictions because many
subsequent convictions, but not all, extend the rehabilitation periods of
earlier convictions.
If you still
have an unspent conviction and you commit a 'summary' offence (a minor offence
that can only be tried in a magistrates' court) the minor offence will not
affect the rehabilitation period for the first offence; each offence will expire
separately.
For example, if
you received a two-year probation order, then one year later you were fined for
a minor offence, the probation order would become spent before the fine.
Therefore once the probation order is spent, only the fine would need to be
disclosed until it became spent. Most public order and motoring offences, but
not drink driving, are summary offences that can only be tried in a magistrates'
court.
If the further
offence is a serious one that could be tried in the crown court, then neither
conviction (even if the first one is for a minor offence) will become spent
until both rehabilitation periods are over.
For example, if
you received a two-year probation order, then one year later you were fined for
a serious offence, both convictions would have to be disclosed until the fine
became spent. Offences like theft and criminal damage of more than £5,000 are
regarded as serious offences that can be tried in the crown court.
If the further
conviction leads to a prison sentence of more than two-and-a-half years, neither
conviction will ever become spent. However, if the first conviction leads to a
prison sentence of more than two-and-a-half years, later convictions with fixed
rehabilitation periods will become spent separately. For example, if you were
given a three-year sentence and later fined, the conviction for the prison
sentence will always have to be disclosed, but the fine would only have to be
disclosed for five years.
Concurrent and consecutive
sentences
If you received
two or more prison sentences in the course of the same proceedings, the
rehabilitation period will depend on whether they ran concurrently (at the same
time) or consecutively (one after the other).
For example,
two six-month terms orders to run consecutively are treated as a single term of
12 months, giving a rehabilitation period of 10 years. However, two six-month
sentences ordered to take effect concurrently are treated as one term of six
months, giving a rehabilitation period of seven years.
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if you want to
email the helpline for further information and advice about matters raised here.
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