UNLOCKing Employment - Reforming the Rehabilitation of Offenders Act – Does the 1974 Act help them?
By ARM, Independent Researcher
Please note, this section relates to UNLOCK's policy & research work. If you are seeking information and advice on employment with a criminal record, please click here.
On this page
- Origins of the 1974 Act
- Review of the ROA
- The disclosure system
- Support for rehabilitation
- Parliaments review of rehabilitation
- The effect of the ROA on ex-offenders
- Conclusions and Recommendations
1. Introduction Back to top
Rehabilitation looks to the future of those whose lives have taken a wrong turn out of the straight and narrow into crime. Is the Rehabilitation of Offenders Act 1974 (ROA) pertinent in helping them back into the right road? The recent report Out for Good by the Howard League on the resettlement needs of young men in prison gave as one of its recommendations, 'The ROA should be repealed'. This Act lays down periods during which convictions have to be disclosed on request to prospective employers, among others. This Act causes considerable problems for ex-offenders seeking work and accessing full-time education. Where employment cannot be obtained, a return to crime provides a ready solution to lack of income. The proposal was made that the Act should be replaced with a system that recognises the importance of employment to successful resettlement. Research by the Social Exclusion Unit has shown that employment can reduce the risk of re-offending by between a third and a half. A government response has emphasised the importance in raising the skills of offenders so that they are better able to secure employment. A review of the ROA in 2002 stated that the current scheme was no longer wholly effective and was not achieving the right balance between resettlement and protection (of the public and of the offender).
2. Origins of the 1974 Act Back to top
In the 1960s it was noted that the UK lagged behind other European countries in that ex-offenders 'going straight', even for a lifetime, were still under an obligation to disclose their convictions, not only when seeking employment, but also in many other circumstances and lived under constant fear that others might reveal them to their disadvantage.
A committee, mainly of experienced lawyers, was set up jointly by Justice, the Howard League for Penal Reform and NACRO under the chairmanship of Lord Gardiner to consider the matter. From data presented by the Home Office, it was estimated that there were possibly a million people with a criminal record dating from an early 'delinquent phase' who had not re-offended for ten years. The committee stated that it was concerned with such people who offended once or twice and then settled down as respectable citizens, but not with persistent criminals.
The committee reported in 1972 and included proposals for legislation on disclosure of convictions. Two principles underlay these proposals: persons convicted of criminal offences should be classified as 'rehabilitated persons', whose convictions had thus been 'spent', if they had not been re-convicted for a number of years after release from custody. Rehabilitated persons should be treated in law-with certain necessary exceptions-as if they had not been convicted, making inadmissible any evidence that could show that they had committed an offence, or been charged with it, or convicted of it, or sentenced for it.
The report suggested three 'rehabilitation periods' related to the length of a custodial sentence, i.e. conviction-free periods reckoned from the date of conviction: five years for a non-custodial sentence, seven years for not more than six months and ten years for more than six months but not more than two years (this last period was extended to thirty months in the ROA as finally agreed). For sentences longer than two years legal rehabilitation would not be possible. These periods were to be halved for offenders seventeen or younger. Provision for probation orders, conditional discharges, non-custodial orders, offences during the rehabilitation period, etc. were also suggested. A rehabilitated person was to be treated as unconvicted and no evidence to prove the contrary should be admissible in court unless later convicted on indictment. A new statutory offence of unauthorised publication of any official record of previous convictions was proposed with severe punishment for anyone obtaining such information by fraud or bribery.
This report gave rise to the 1974 Act. As finally approved, the Act had grown by amendment in committee into a complicated piece of legislation that the average ex-offender, and not a few lawyers, had little chance of understanding. Exceptions for a long list of occupations for which disclosure of convictions was a requirement, such as employment involving working with children, and provision for an equally long list of people, officials and quasi-officials, with a right to information on convictions, and to their transmission for official purposes, abounded and these lists continued to lengthen by such statutory amendments as the ROA (Exceptions) Order 1975.
Two significant changes from the original intention of the Gardiner report had been made. Newspapers were now able to refer to spent convictions if 'malice' could not be shown (see ROA sect. 8). Legal opinion is that it is in practice almost impossible to prove malice, which in effect gives the press liberty to continue its 'revelations'. The other change, to exempt criminal proceedings from the provisions of the Act, allowed spent convictions of defendants and witnesses to be revealed in court-to the advantage generally of the prosecution. However, sentencers have been advised by the Law Commission that convictions should only be disclosed where relevant to the case.
3. Review of the ROA Back to top
In 2001 the Home Secretary instituted a review of the ROA in view of its acknowledged shortcomings. The subsequent report in 2002, Breaking the Circle, focussed specifically on the requirements for disclosure of convictions to employers. The report noted that the increased severity of sentencing since 1974 had led to a threefold increase in the number of offenders sentenced to more than thirty months in custody and so never free from the obligation to disclose their convictions. It was found that many employers were either unaware of the ROA or misunderstood its provisions. Recommendations were made for much shorter disclosure periods to apply to all sentences based on the length of sentence. It was argued in the report that length of sentence takes into account 'the seriousness of the offence, its degree of harmfulness, the offender's culpability and the offender's criminal history'. These factors were said to be of direct relevance to the issue of risk of harm to the employer. It was suggested that sentencers should be able to extend the disclosure period for dangerous offenders.
The disclosure periods proposed were to comprise the length of the sentence plus a 'buffer period'. For custodial sentences this buffer period was to be two years. For non-custodial sentences the buffer period was to be one year. These buffer periods were based on reconviction data. The percentage of reconvictions for most offenders discharged from custody increases steadily up to about this time before slowing down to its longer term value. Adding this buffer period extends the time during which unspent convictions have to be disclosed to employers so aggravating the difficulty of gaining work, which is recognised as of vital importance in going straight.
Exceptions to the disclosure scheme were to continue for many occupations and for proceedings in civil and criminal courts. The records of young offenders convicted of minor offences were to be wiped clean for the purposes of employment. It was felt important to ensure that employers and ex-offenders understood the disclosure requirements. Sanctions should continue to be available if an applicant or employee loses a job on the grounds of a previous conviction that was not required to be disclosed.
4. The disclosure system Back to top
The ROA in 1974 stated the circumstances in which convictions had to be disclosed but it remained for the Police Act (1997) to introduce three levels of disclosure related to the type of work sought by an ex-offender (see Annex for details of these levels). Basic, Standard and Enhanced disclosure information on convictions will have to be obtained from the Police National Computer (PNC) or the Criminal Records Bureau (CRB).
Basic disclosure is appropriate for the general run of jobs: employers are not required to seek it but ex-offenders are obliged to disclose unspent convictions if asked by job recruiters. If asked and unspent convictions are not then disclosed, discovery of them later can result in dismissal for deception.
Standard disclosure is appropriate for posts and professions excepted from the ROA and for posts that involve working with children or vulnerable adults. Enhanced disclosure is appropriate for sensitive posts involving regularly caring for, training, supervising or being in sole charge of children aged under 18 and vulnerable adults. The subtle distinction between Standard and Enhanced depends on the interpretation of 'regularly' and in practice most employers ask the CRB for Enhanced where positions of trust are involved.
5. Support for rehabilitation Back to top
The 2002 review dealt with more than just the terms of the ROA itself. It examined the actions needed by the government, employers and the public to support the resettlement efforts of ex-offenders wanting to go straight. Particular emphasis was placed on education and training for employment. The Social Exclusion Unit (SEU) had identified a number of examples of good practice in prisons. However, the summary of the SEU report commented that 'the availability of positive initiatives...is patchy and the majority of prisoners, particularly those serving short sentences, receive little practical support, before release or afterwards'.
In 2005 the government published the Green Paper, Reducing Re-Offending Through Skills and Employment, setting out proposals for raising the skills of offenders to help them gain employment. In this document, and its follow-up Next Steps, stress was laid on engaging employers by promoting the benefits of taking on offenders through the Reducing Re-offending Corporate Alliance. When commenting on the Green Paper, 'many employers said they would consider employing offenders providing there was rigorous preparation for employment and good support mechanisms if things go wrong.' No mention was made of the ROA or the need for ex-offenders to disclose any offences.
The ROA does not deal with the process of going straight: it comes into effect once the offender has spent a set period free of offences after leaving custody or completing a non-custodial sentence. It does not help the offender until sometime after the sentence has been served. The rehabilitation period is essentially a trial period to see whether the ex-offender does manage to go straight. It might naively have been thought that once the punishment for an offence had been paid by serving a sentence, then the offender was restored to the same status as before the offence was committed. However, the offender now has a permanent record with the CRB so is labelled as a criminal and is not to be trusted not to offend again. This is what the rehabilitation period, with the proposed buffer period, means in effect. Statistics on re-offending show this label to be justified in too many cases. About 60% of released prisoners are convicted of another crime within two years. Younger offenders, 18-20 years old, are reconvicted at a rate of more than 70% in this time.
These statistics, however, are not simply tabulations of data but indicate that efforts at rehabilitation during the time the offender has been in custody or serving a community sentence have not been effective. A former Chief Inspector of Prisons, Sir Stephen Tumim, has given his view on how to reduce the crime rate, 'the process must be to treat prison as an active pre-release course, so that the majority of the majority (he thus refers to young men) leave prison with self-respect and the capacity and intention to live as proper citizens'. His successor similarly outlined resettlement, 'every assessment, every programme, every decision about where prisoners serve their sentence, should be aimed at helping them to return to society and not re-offend'.
More recently a former Home Secretary, in presenting the government's intentions for the future of penal policy, underlined, 'We have to make preventing re-offending the centre of the organisation of our correctional services' and that by moving away from the idea that 'prisons can be universities of crime' towards them being 'institutions that ensure offenders become working and productive members of society upon release.
The report on the review of the ROA had stated as a principle that Government has a responsibility to ensure that, so far as is possible, offenders are employable by the time they complete their community sentences or leave custody. But is this happening? The SEU, which published its report before the report of the review, had deplored the situation that no one is ultimately responsible for the rehabilitation process at any level-from national policy, to the level of the individual prisoner and added, 'it is important that, following the review, action should be taken as early as possible to introduce periods of disclosure which achieve a more appropriate balance between the protection of the public and the need to increase the number of ex-offenders in employment'. That was seven years ago!
6. Parliament's review of rehabilitation Back to top
At the end of 2004 the House of Commons Home Affairs Committee (HCHAC) published a report on the rehabilitation of prisoners. Referring to the formation of the National Offender Management Service (NOMS) it concluded that 'the basic framework is now largely in place to make possible the more effective rehabilitation of offenders. Nonetheless, the evidence we have taken in our inquiry reveals that much remains to be done'. The comment was also made that 'the current situation means that it is something of a lottery as to whether a particular prisoner actually benefits from rehabilitative interventions appropriate to his or her needs'.
The committee had examined training, education and employment within prisons and was generally dismayed at what was found. It regretted that the high level of the prison population and the constant transfers of prisoners between prisons made it much more difficult to provide effective rehabilitative interventions. What is significant for this article is that no reference was made anywhere in this report to the ROA, which surely indicates the relevance attached to it.
7. The effect of the ROA on ex-offenders Back to top
The original intention of the ROA was to help ex-offenders once they had decided to go straight. Does it? The requirement to declare convictions after a sentence has been served stigmatises ex-offenders as law-breakers not to be trusted not to offend again. For example, a custodial sentence of just a few weeks for a relatively minor offence has to be disclosed after release for the next seven years, once requested. What are the practical and psychological effects for the ex-offender? The message to prospective employers is that they are taking a risk by recruiting them and many are not prepared to take that risk, as research for the Joseph Rowntree Foundation discovered. The SEU noted that one in seven employers would ask, and then reject, any applicant with a criminal record irrespective of the nature or relevance of the offence to the job.
Self-employment is made almost impossible because the major insurance companies will not provide cover for people with a record of conviction. Similarly, banks and building societies are unwilling to take on ex-offenders as customers. The message to ex-offenders is not to disclose unspent, as well as spent, convictions if not specifically asked by prospective employers and hope they do not come to light. The risk is that if they do they can then legally be dismissed for hiding an unspent conviction. The Barrow Cadbury Commission, when considering the adverse employment situation of young adult offenders, recommended that young adults under the age of 23 should not be required to disclose criminal convictions to employers (with certain exceptions such as convictions for sexual or violent offences).
Successful rehabilitation involves more than improving outward material circumstances. It involves a change in self image from criminal to non-offender. The key to success is one-to-one mentoring by people who care; the original task of the Probation Service. In contrast, the official approach is by enforcing 'motivational programmes': the offender is fed in at one end and a non-offender comes out at the other(?). The report of the review of the ROA congratulates the National Probation Service on shedding its 'soft option' in favour of 'rigorous enforcement'. Will this help the ex-offenders or just put more back inside for breach?
The label 'criminal' bears heavily on the ex-offender and is it any wonder that after many rebuffs when trying to go straight the response is 'OK then, if that's what you want, I'll be a criminal-but next time I won't be caught'. Some hopes.
8. Conclusions and Recommendations Back to top
The 2002 review of the ROA has not yet resulted in any action by the government so its 35 year old unsatisfactory provisions remain in force. The fact that the government continues to initiate amendments for exceptions makes it clear that no fundamental overhaul is imminent. The growing number of posts for which disclosure of spent convictions is required undermines the original intention of the Gardiner committee in proposing the ROA to smooth the path of ex-offenders into employment. It appears that every move by official bodies in the field of criminal justice relating to the ROA since its publication in 1974 has been to increase the need for ex-offenders to disclose spent convictions, particularly when seeking employment but also in court. In the case of employment, the justification is usually that the public, and vulnerable members of it in particular, needs better protection from the risk of harm by potentially dangerous offenders. In court proceedings, the justification is that evidence of past offences can indicate a propensity to re-offend.
The concept of risk has the two facets of risk of harm to the public, from which they should be protected, and risk of reconviction to the offender, who should be turned out of a criminal career as early as possible by the combined actions of the criminal justice system. The latter refers critically to the young and first offenders for whom interventions need to be prioritised. Their successful rehabilitation will evidently decrease crime and thus protect the public from harm. The official recognition that employment contributes to rehabilitation and that education and skills training can lead to employment are to be welcomed.
Ex-offenders are still subject to long periods during which their convictions have to be disclosed on request, making employment difficult. The majority of offenders in custody are serving short sentences for minor crimes that will have to be disclosed to employers for the next seven years. Which is the 'real' punishment-the months inside or the years of stigmatisation afterwards?
The ROA should be repealed without more delay and a new Disclosure of Convictions Act passed along the lines proposed by the 2002 review with shorter disclosure periods. Ex-offenders should be enabled to gain employment as soon as possible to avoid the trap of continuing in crime to make ends meet and to confirm to them their restored status as non-offenders.
Records of convictions of young and first offenders should be wiped clean and sealed in police records. Interventions aimed at rehabilitation should be prioritised by NOMS during and after custody.
Annex Back to top
Sections of Chapter V of the Police Act (1997) specify the contents of the certificates for the disclosure levels as follows.
A Criminal Conviction Certificate (Sect 112, yet to be implemented in England and Wales but available in Scotland and Northern Ireland) will contain details of only those convictions held on the PNC required by the ROA to be disclosed, i.e. convictions not spent.
A Criminal Record Certificate (Sect 113), (a CRB Standard Disclosure ) contains details of all previous convictions held on the PNC, i.e. spent and unspent, and details of cautions, reprimands and final warnings. It also contains any relevant information held by the Department for Education and Skills if the job applicant appears on the Protection of Children Act (POCA) List or on the Protection of Vulnerable Adults (POVA) List or on the list of people banned from working with children under Section 142 of the Education Act 2002 (formerly known as List 99). The individual and prospective employer have to obtain jointly the information from the CRB.
A Criminal Record Certificate (Sect 115), (a CRB Enhanced Disclosure) contains all the details as for Standard disclosure plus local police force information, from the area where the job applicant lived for the previous five years, considered relevant by a Chief Constable. The individual and prospective employer has to obtain jointly the information from the CRB.
The book Off the Record by Bryan Breed (1987) commissioned by the Apex Trust, which works for the employment of ex-offenders, is the source of this historical information. It includes the Gardiner report, Living it Down-The Problem of Old Convictions (1972), in full as an appendix.
The sterling work of UNLOCK, The National Association of Reformed Offenders, in finding insurance companies and banks for its members should be acknowledged here.
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