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Rehabilitation of Offenders Act was “disproportionate and incompatible with Article 8 of the Human Rights Act”.

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The Rehabilitation of Offenders Act 1974 (“1974 Act”) primarily exists to support the rehabilitation into employment of reformed offenders who have stayed on the right side of the law.

The Police Act 1997 created the Disclosure and Barring Service (DBS) to enable employers to check your criminal history in some circumstances. When carrying out a check there are three main types of DBS checks that an employer can do:

  • Basic- check for unspent convictions
  • Standard- check for spent and unspent convictions, cautions, reprimands and final warnings
  • Enhanced- standard check plus any additional, relevant information held by local police

Under the Rehabilitation of Offenders Act 1974, criminal convictions and cautions that become ‘spent’ do not have to be disclosed unless they fall within the exceptions set out in the Rehabilitation of Offenders Act (Exceptions) Order 1975.

Certain cautions and convictions can be filtered off of the standard and enhanced DBS checks after a certain period of time providing they are not on the specified list of offences that can never be filtered. The following periods are:

Conviction 18 or over at time of conviction Under 18 at time of conviction
Convictions for non-specified offences filtered after 11 years filtered after five and a half years
Cautions for non-specified offences filtered after six years filtered after two years
Diversionary Youth Conferences n/a filtered after two years
Informed warning for non-specified offence filtered after one year filtered after one year

In an application by Lorraine Gallagher for Judicial Review of the statutory rules under which disclosure of their records was required, the Supreme Court held the rule requiring disclosure of multiple convictions was disproportionate and incompatible with Article 8 of the Human Rights Act in that it did not distinguish between the nature of any offences, the number of convictions or cautions, or the length of time that may have passed.

Prior to the changes in November 2020, Youth cautions had to be disclosed and if an individual had more than one conviction or caution, the filtering rules would not apply.

These rules were updated on 28th November 2020 as follows:

  • warnings, reprimands and youth cautions will no longer be automatically disclosed on a DBS certificate
  • the multiple conviction rule has been removed, meaning that if an individual has more than one conviction, regardless of offence type or time passed, each conviction will be considered against the remaining rules individually, rather than all being automatically disclosed

We have a renowned criminal law department, which frequently challenges cautions and DBS decisions and if you think we might be able to help you please get in contact by calling 0207 632 4300 and ask to speak to one of the following members of our team James SaundersSteve Garratt or Amber Richardson or click on the Make an Enquiry button above.

 

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