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Rehabilitation of Offenders Act 1974

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Introduction

Key Facts

Over one-third of the adult male (18+) population in Scotland is likely to have at least one criminal conviction

Nearly one-tenth of the adult female (18)+ population is likely to have at least one criminal conviction

In the past decade between 2003-04 to 2012-13 the average number of reconvictions per offender has decreased by 18 per cent.

Total economic & social costs of re-offending are estimated at £3bn approx.

Individuals released without employment are twice as likely to re-offend

SPS reports that 80% of inmates were unemployed prior to their sentence/remand. Once liberated, evidence shows that it is eight times harder for a person to gain employment, with declaration of a criminal record the greatest factor in an employer refusing employment.

Jobcentre Plus research indicates less than 3% of ex-offenders progressed into employment (sample group only)

Introduction

1. Having to disclose previous criminal activity, such as a previous criminal conviction, affects many people in our society. The consequences of having to do so can have an on-going impact on people's ability to gain employment; attend university or college; volunteer, obtain certain licences, secure an apprenticeship or even get insurance or a bank account; etc. The key factors that influence people not to re-offend include having stable employment, access to education, having positive family relationships and having normal lifestyle choices. Public safety and the interests of wider society are, therefore, generally best served by encouraging and enabling people to move on from their offending behaviour as much as possible.

2. However, clearly a minority of people with previous criminal activity can pose a significant and on-going potential risk to public safety including when working in particular roles. In these circumstances, employers and others with a legitimate interest need to have relevant information about previous criminal activity in order to assess appropriately the level of risk.

3. Currently the Rehabilitation of Offenders Act 1974[1] ("the 1974 Act") provides the legal framework relating to the requirements falling on people with previous criminal activity in their background to disclose this information.

4. In Scotland, the 1974 Act provides that anyone who has been convicted of a criminal offence and either sentenced to a non-custodial penalty or sentenced to prison for a period of 30 months or less can be regarded as 'rehabilitated' after a specified period of time, (the rehabilitation period), provided he or she receives no further convictions. A person can also become 'rehabilitated' after receiving an alternative to prosecution (AtP), such as a fiscal warning or a fiscal fine. After the specified rehabilitation period has passed, the original conviction or AtP is considered to be 'spent' and no longer needs to be disclosed.

5. Anyone receiving a custodial sentence of over 30 months has to disclose details of this conviction when asked because there is no protection under the 1974 Act for such sentences. The requirement to disclose previous criminal activity for specific time periods, depending on the conviction or AtP, exists to try and balance the competing needs of protecting the public while allowing individuals to move on from their previous offending by becoming rehabilitated under the 1974 Act at a specific point in time.

6. The general rule is that, once a conviction or AtP is spent, that individual does not have to reveal it and cannot be prejudiced by it. For example, if an individual whose convictions or AtPs 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 the non-disclosure of a spent conviction or AtP.

7. It is important to note that where the 1974 Act requires someone to disclose previous criminal activity, this should not debar anyone from obtaining employment. What this policy does is to provide a legal framework within which information is permitted either to be given or not given to employers/potential employers to help inform their decisions about employing individuals. Therefore, disclosure is a consequence of the offence and is not a punishment and it is designed, in part, to allow employers to take an informed decision about whether to employ an individual for the post for which they are applying.

8. However, there are some categories of employment and proceedings to which the normal rules under the 1974 Act do not apply. It is positions involving a particular level of trust, such as work in the childcare, healthcare and the financial sector, that are treated differently from the normal application of the 1974 Act. This is to ensure there is adequate protection for children and vulnerable people in particular by allowing employers to be informed about relevant previous convictions of potential/actual employees. There is existing secondary legislation[2] which provides for the categories of employment and other types of proceedings covered by these special rules.

9. It is important to note that the proposals discussed in this consultation paper relate to the general system of disclosure under the 1974 Act only, (i.e. before a conviction becomes spent). It does not relate to any of the categories of employment and proceedings where the normal rules under the 1974 Act do not apply and as such, disclosure is required when a conviction becomes spent. It is also important to note that we are not proposing reforms in relation to the treatment of children's hearings disposals in this paper.

Case for policy review

10. It has been argued for some time that the current rehabilitation periods[3] are not appropriate and do not reflect the point at which reoffending tails off following previous criminal activity. Some consider the legislation to be too complicated, poorly understood and, as a result, not properly applied in practice. As such, the current arrangements under the 1974 Act have been criticised as not being effective in achieving the necessary balance between public safety and enabling people who do not pose any on-going significant risk to move on from their previous criminal activity.

11. The Scottish Government initiated informal discussions with key stakeholders in 2012 about whether it was time to consider modernisation and reform of the 1974 Act in Scotland. Following these discussions, we considered there was a compelling need to review the principles and operation of the 1974 Act in its current form in Scotland.

12. In order to help do that, we wanted to gather further evidence as to how reform could be achieved. In August 2013, we published a discussion paper[4] explaining how the legislation operated and seeking the evidence and views[5] necessary to help consider what changes may be required to modernise and improve the legislation.

13. Alongside the written responses to the discussion paper, the Scottish Government also commissioned 'Recruit With Conviction' to run 6 oral engagement events across Scotland with stakeholders during November and December 2013. In addition, 'Positive Prisons' were asked to undertake engagement events inside prison with prisoners and prison staff in seven Scottish prisons between December 2013 and the end of January 2014.

Feedback

14. Analysis of the feedback received to the Scottish Government's discussion paper[6] and the engagement events run by 'Recruit With Conviction'[7] and 'Positive Prisons'[8] were published on 15 April 2014.

15. The headline analysis findings were:

  • Respondents saw a continuing need for legislation that enables people to be rehabilitated such that they do not have to disclose certain previous criminal convictions after fixed timescales. Current legislation however, is not seen as fit for purpose as it places too much emphasis on public safety and too little emphasis on rehabilitation.
  • Respondents stressed the need to support access to employment for ex-offenders, and especially young ex-offenders, with comments that those in employment are less likely to re-offend. Respondents felt that disclosure of offences cuts people off from work, even where the type of work is not related to the offence.
  • There were calls for legislation that is easier to read and to understand, written in plain English with clear and concise definitions of terms. Clear, well set out information on disclosure, rehabilitation periods and rules around spent convictions was also requested.
  • Many respondents felt the scope of the Act should be increased from 30 months so that those receiving sentences of 30 months or more can, at some point, reach a position where they no longer have to disclose their previous criminal activity. Of those with this view, some felt 48 months could be the cut-off point whereas others felt all convictions should be included within the scope of the Act. That is, the view was offered by some that all offenders should, at some point, be able to put their offending behaviour behind them and not have to disclose including in relation to areas of employment which require standard and enhanced disclosure checks or Protection of Vulnerable Group, (PVG), scheme membership.
  • There were concerns that legislation has not kept pace with changes in sentencing with a consequent need to update rehabilitation periods in light of these changes.
  • There was a general feeling that rehabilitation periods should be shorter to allow ex-offenders to rehabilitate, to access employment more easily and to allow them to put the past behind them and make a positive contribution to Scottish society.

Consultation proposals

16. Based on the views received from the discussion paper, the engagement events and our own internal consideration, we have decided the focus of the proposals in this consultation is to be on two key aspects of the current lower level disclosure regime. These key aspects are

  • allowing more people with previous criminal activity to be able to move away from their past after a suitable period of time has elapsed, (i.e. changing the scope of the 1974 Act); and
  • changing the different periods of time a person has to disclose their previous criminal activity, (i.e. the rehabilitation periods).

17. We are able to make these changes via secondary legislation due to the powers available to the Scottish Ministers under section 5(11) of the 1974 Act.

5(11) The Scottish Ministers may by order -

(a) substitute different periods or terms for any of the periods or terms mentioned in subsections (1) to (8) above; and .

(b) substitute a different age for the age mentioned in subsection (2)(a) above [9].

18. It should be noted that the proposals set out in this paper will, if legislated for, amend the rules which apply to the time periods for an individual to disclose their past criminal behaviour when asked by an employer or for certain other purposes such as insurance or banking. In addition, they would also have an effect on what Disclosure Scotland would include on a basic disclosure certificate.

19. The purpose of this consultation paper is to gather views from individuals, employers, public bodies and all other interested stakeholders in relation to the proposed changes to the scope and the rehabilitation periods of the 1974 Act.

The consultation paper is organised into the following chapters;

Chapter 1: Allowing more people to move away from their previous criminal past
Chapter 2: Changes to the length of rehabilitation periods
Chapter 3: Next steps

Annex A: Responding to this consultation paper
Annex B: Respondent Information Form & Questionnaire
Annex C: List of Consultees

Responding to this consultation paper

20. The document includes a series of specific questions throughout the chapters. The questions are set out in the formal respondent information document. We are inviting written responses to this consultation paper by 12 August 2015. Please send your response with the completed Respondent Information Form to:

Rehabilitationofoffendersact1974.consultation@scotland.gsi.gov.uk

or

Nigel Graham
Justice Directorate
Criminal Justice Division
Scottish Government
Area GWR, St Andrews House
Regent Road
Edinburgh EH1 3DG

If you have any queries contact Nigel Graham on 0131 244 1843.
20 May 2015