Protected Convictions and Cautions – should minor indiscretions haunt for ever?
2nd October 2013
The Rehabilitation of Offenders Act 1974 (“the Act”) which allows for certain cautions and convictions to become spent and accordingly, for offenders to be rehabilitated, has long been criticised for being too limited in its scope.
The extent to which the Act is applicable is restricted by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975/1023 (“the Exceptions Order”) which effectively disapplies the effect of rehabilitation to those applying for certain areas of employment. The result of this is that many who have historic and minor convictions or cautions are still required to disclose them even though they are spent.
The recent Court of Appeal held in R (T and others) v Chief Constable of Greater Manchester and others  EWCA Civ 25 that this situation is in many circumstances a breach of Article 8 ECHR. In response to this decision (despite the fact an appeal has been lodged at the Supreme Court), the Exceptions Order has been amended by virtue of a 2013 Amendment Order.
Article 3 of the Exceptions Order is now amended so that the 1974 Act is no longer disapplied in respect of a protected caution or a protected conviction. The newly inserted Article 2 defines what protected means. In respect of offences committed after the age of 18 years a caution or conviction will become protected after 11 years or more have passed and when the conviction does not fall within the list of offences that are excluded (serious offences which have attracted a prison sentence). In respect of youth offenders the caution/conviction will be protected after six years.
A protected conviction or caution is a new concept and distinct from that of a spent conviction. Spent convictions do still exist and are still disclosable. A conviction will be spent in the same way as it was previously. For example, in terms of an offence of theft where the sentence was either a fine or similar, the rehabilitation period remains 5 years. Following the Amendments Order of 2013 this conviction will now become protected.
Although the wording of Article 3 of the 1975 Order has not changed, there is now an important difference; an individual, in response to being asked whether they have a spent conviction or caution can now respond that they do not when that spent conviction/caution becomes protected.
Whilst the determination of the Supreme Court is awaited with interest, it is fair to say that the amendments made to date only go so far in rectifying the criticism that has been levied at the original Act. For many with minor convictions and cautions and who are pursuing particular careers, rehabilitation as defined in the 1974 Act and as the law currently stands, will still be a distant goal.