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The effect of rehabilitation
Once the rehabilitation period has expired, and your conviction becomes spent, you will not generally have to reveal the previous conviction, and it also generally cannot be revealed by anyone else without your permission. The objective is to put you in the position you would have been in if you had not committed the offence at all.
If someone maliciously, and without lawful authority, publishes or reveals to another person that you have a spent conviction, you may be able to sue them for damages for defamation.
Employers often wish to ask questions about a potential employee’s previous convictions. The general rule under the ROA is that you can treat such questions as not relating to spent convictions. However the ROA sets out excepted professions, occupations or offices where the protection does not apply. These exceptions are dealt with the Exceptions section.
If the employment is not exempt, you do not have to disclose your spent convictions, and if asked whether you have any convictions you are entitled to say no.
It will be unlawful for an employer to deny you employment, dismiss you or otherwise treat you less favourably because you have a spent conviction or because you did not disclose a spent conviction. If you are excluded or dismissed from employment on the ground of a spent conviction, you may be able to take the matter to a court or to an employment tribunal. However, you should first seek legal advice.
Employers have been known previously to adopt a practice of asking prospective or existing employees to obtain copies of any information held about by the authorities about their criminal records, using an individual’s rights under the Data Protection Act 1998 (DPA) to allows a person to see records about themselves. This practice – known as ‘enforced subject access’ – is intended to be prohibited under the Data Protection Act except where the law otherwise demands it, or where it is justified in the public interest. But this protection has not yet come into force.
However, there is an argument that an employer who enforces subject access to such sensitive personal data will be in breach of the DPA, and the Employment Practices Data Protection Code and Supplementary Guidance, published by the Information Commissioner, also make it clear to employers that ‘enforced subject access’ is prohibited. If you find yourself confronted by such a request or demand, it may be advisable to seek legal advice, or to contact the Information Commissioner.
However, employers or prospective employers may discover details of your spent convictions if they are ‘registered people’ under the Police Act 1997 dealt with in more detail below.
Provision of Services
Some forms of every day contracts, such as insurance polices, are affected by the legal principle that all relevant information must be disclosed by the person seeking insurance, whether or not it is asked for - otherwise the contract could potentially be treated as invalid. Clearly, the existence of a driving offence or an offence of dishonesty could be relevant to an insurance company’s assessment of the risk and the appropriate level of the premium that an insured person should pay. However, the ROA makes it clear that the duty to disclose all relevant information does not extend to disclosing convictions which are spent.
Evidence in Legal Proceedings
A spent conviction cannot be used in evidence in a civil court, tribunal, arbitration or disciplinary or similar hearing. You should not be asked questions about spent convictions and, if you are, you need not answer them unless you wish to do so.
This protection does not apply in:
- Service disciplinary proceedings.
- Applications for adoption, custody, wardship or guardianship or in care proceedings.
- Where the court or tribunal is satisfied that justice cannot be done except by hearing evidence about the spent conviction.
- Criminal proceedings – however no one should refer in open court to a spent conviction without the authority of the judge, whose authority should not be given unless ‘the interests of justice so require’.