The Rehabilitation of Offenders Act
was passed in 1974.
It was reviewed in 2002.
It does not work.
No action has been taken by HMG to make it work.
This failure actively discourages reform and rehabilitation.
Action is required Now.
Click Here To read the full Review Report “Breaking the Circle”
Click here to contact the author
The self same moment I could pray;
And from my neck so free
The Albatross fell off my neck., and
sank
Like lead into the sea.
The ROA was passed in 1974 and is still in force. Its principal purpose is set out in Section 4. – (1) of the Act and states:
“… a person who has
become a rehabilitated person for the purposes of this Act in respect of a
conviction shall be treated for all purposes in law as a person who has not
committed or been charged with or prosecuted for or convicted of or sentenced
for the offence or offences which were the subject of that conviction; and
notwithstanding the provisions of any other enactment or rule to the contrary,
but subject to the aforesaid”
The ROA Section 9 states that:
“Any person guilty of
an offence under subsection (4) above shall be liable on summary conviction to
a fine not exceeding £400 or to imprisonment for a term not exceeding six
months, or both.
This means that any one who keeps the official criminal records commits a criminal offence if he or she discloses details of those offences to anyone, except the offender, if those offences are “Spent”.
The Police and Courts may keep and use all criminal records indefinitely provided they are used exclusively for police investigations or to inform a judge or magistrate after conviction of a subsequent offence.
Keepers of
Not everyone can earn a Spent sentence. It is restricted to those sentenced to 30 months in prison or less. In 1975 an Order called the ROA (1974) (Exceptions) Order 1975 was issued. This listed “relevant offences” against certain professions and occupations which, to certain extent, were excepted from the provisions of the ROA. The object being to allow disclosure of relevant Spent sentences for employment with vulnerable people, positions of special trust and national security. Over time this list has been added to extensively and now even includes traffic wardens. However these exceptions are not absolute; to be excepted the offence has to be relevant to the profession, office, employment, occupation, license, certificate or permit.
The ROA defines the periods it takes to Spend a sentence. These vary according to the sentences and the age of the offender. Expenditure starts from the date of conviction and not the date of sentence or release from prison or the end of the sentence. The most common period is 10 years. If the person is convicted of any offence during this period, then he or she has to start again.
Spent sentences can only be obtained by those sentenced to 2 ½ years or less provided they commit no offences for 10 years after date of conviction, and thus demonstrate that they have reformed.
At this point it is worth pointing out that the ROA uses, in my opinion, the word “rehabilitation” incorrectly. Reform is the process by which a person decides not to commit further offences. Rehabilitation is the process by which a reformed person is assisted to re-enter society as a law-abiding person. Reform always precedes rehabilitation and in most cases is something that need not happen at all, because the offender is not really a bad person at all; he or she just did a “bad thing” once.
It can be seen that the whole purpose of the ROA is to give a reformed person “a clean sheet” so that he or she can then rehabilitate themselves. This takes the form of an extract of the person’s criminal record and is called a Disclosure. There are three grades: Enhanced, Standard and Basic.
It is against the law for third parties to be given Disclosures. However the ROA has never really worked properly because successive governments have failed to provide a system which will produce Disclosures on demand to the individual that meet the requirements of concealment of Spent sentences.
Individuals can apply to their local police for a “Subject
Access Request”. This provides them with
a complete extract of their record, taken from Police Records. The police can,
under Police Rule 5.4,[2] weed
their records, but they are not allowed to weed any custodial sentence
exceeding six months or any convictions for drugs, violence or of a sexual
nature or any offences against the vulnerable. So the Police Records do, in the
main, always include Spent sentences and never constitute a “clean sheet”. They
are useless for anyone who needs a Disclosure and has a record. More than one quarter of the working
population of the
In March 2002 the government set up an agency in Liverpool
called the Criminal Records Bureau (CRB) which serves
Crucially the English and Welsh CRB has never been tasked with producing Basic Disclosures, which are the clean sheets that most ex offenders need, deserve and are entitled to have under the law. This is a very grave failing. About 93,000 people are released from prison each year. Of these it is estimated that that about 38% reform and are entitled to Spend their sentences. This means that every 10 years 372,000 ex-prisoners and many more who have not suffered custodial sentences cannot obtain their clean sheets and are being hindered from becoming rehabilitated, because the government is failing under its duty in law.
The Government admitted in March this year that the launch of the CRB’s Basic Disclosure service was initially postponed due to concerns over the impact of the Standard and Enhanced Disclosure service, but that a feasibility study is currently being undertaken into its launch.[4].
It is scarcely surprising that, after a continuing delay of 32 years, recidivism rates are so high and that on 24 March 2006 there were 77,004 people in prison, which are 2,603 more than the year before.[5]
In 2000 the Home Office commissioned a review of the ROA, because it was realised that it was not helping the reformed to rehabilitate themselves. A wide-ranging investigation by experts, including public consultation, was conducted over two years and their report “Breaking the Circle” (BtC) was published on 17 July 2002. All the recommendations were accepted by the Government in April 2003. These called for a radical reform of the ROA and an improvement in the delivery of Disclosures. . Baroness Scotland, the Home Office Minister explained on 5 Dec 05[6] that delays may have been influenced by the Bichard Reports recommendations, which arose after the Soham murders, but that “The situation remains that the Government accepts the majority of the review’s recommendation.”
However, the fact remains that four years later nothing has been done to bring these recommendations into force by amendment of the ROA.
The BtC observed, inter alia, that:
The main changes to the ROA by the BtC changes are:
Note: This is a very brief summary. This is easily misunderstood. It is very important that the detail and
implications be read an understood by reading the entire 95 page report.[7]
One important finding was that the longer a person is sentenced the more likely he is to reform People with short sentences of say 6 months or a year, are much more likely to re-offend than those with longer sentences. This led to the fundamental recommendation that all those who reform should be allowed to achieve a Spent sentence and not just those with sentences of 30 months or less.
The huge change that this excellent report envisages is that every offender, except those who commit offences against vulnerable people, state security and particular positions of trust, can Spend his or her sentence and then obtain promptly, as of right a “Clean Sheet” which conceals Spent sentences. This expenditure is, usually achieved by adding the “buffer period” of two years of the sentence. During this entire period the person must not re-offend.
Some imagined examples might be:
The following two examples are problematic, but reveal the complexities of the ROA and the reforms. The questions and answers are of supreme and fundamental importance and may need testing in court:
A long time has passed since July 2002 and even more since 1974. Much has changed and BtC had no remit, or did not envisage, other very important aspects.
With the increasing fear of child abuse, terrorism and other ‘high-profile’ offences, employers offering the most run-of-the-mill jobs and nearly all foreign immigration authorities are now demanding disclosures as a matter of course. As a result a whole spectrum of Agencies has sprung up whose job it is to obtain these documents on behalf of the employers. Even the CRB will not issue Disclosures to individuals; individuals have to apply through, and pay fees to, these agencies, who work for the employers and others that are seeking the information. This acts against the interests of the individual even though he must pay the CRB’s fees.
In the vast majority of cases these agencies obtain Subject Access Requests from the police for ordinary jobs. These are complete extracts of the Police Criminal records and will be blank if no crime has ever been committed. But if any offence has ever been committed, including Spent sentences, they will appear. This is fine if the person applies himself, but if the agency applies, both agency and the police have probably unwittingly conspired to break the criminal law. This is being done all the time at the moment because no authority is capable of issuing Basic Disclosures. No one has yet been prosecuted.
The increasing use of data on IT systems means that either direct or indirect access is possible to many officials. There is a very real danger that criminal record data might be easily accessible by employers or, even worse, by foreign police or immigration authorities, because of some agreement, regulation or treaty that somehow assumes it by-passes the ROA. There is a particular risk with the National ID card, which although it may not contain direct access to the criminal records, could easily enable any official, with suitable access, to do so. This is completely illegal because no new law or regulation may supersede the ROA, which is quite specific on this point when says: “notwithstanding the provisions of any other enactment or rule to the contrary “[8]
It is completely unacceptable that the CRB cannot issue Basic Disclosures promptly on demand to individuals. It is a national disgrace that this fundamental right has never been achieved in 32 years, even though that was the primary purpose of this law. This aspect is only assumed and implied in the BtC. It is the most important administrative measure that must be achieved immediately, because it possibly adversely affects, as the summary of the BtC says, one quarter of the working population of this country or 15 million people.
Some effort has been made to encourage employers to employ ex-offenders and to educate them about rehabilitation, such as the Corporate Alliance for Reducing Re-offending, sponsored by the National Offenders Management Service (NOMs). Charities such as NACRO also exist to help ex-offenders. However the fact remains that most employers tend to use low grade administrators who tend to weed out any one with a “black mark” at the initial stage. Overwhelming “Daily Mail” prejudice is deeply rooted in the public conscience. There is a pressing need for protection under the law.
[1] Letter
to
[2] Chief Constable Manchester letter 25 Oct 05
[3] Breaking the Circle 2002
[4] Andy Burnham, MP PUS Home Office letter to
[5] Bromley Briefings April 2006 – overview.
[6] Letter
to
[7] Home office Breaking the Circle, July 2002
[8] ROA Section 4. (1)