The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013

EXPLANATORY NOTE

(This note is not part of the Order)

This Order amends the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“the 1975 Order”). The 1975 Order disapplies specified provisions of the Rehabilitation of Offenders Act 1974 (“the 1974 Act”) so as to permit questions to be asked about spent convictions and cautions in order to assess a person’s suitability for admission to certain occupations or to hold certain types of employment, licences or permits. It also permits spent convictions and cautions, or a failure to disclose them, to be a ground for excluding a person from those occupations or for making decisions in relation to those types of employment, licences and permits.

Article 3(4) of this Order inserts new paragraph (2A) into article 2 of the 1975 Order. It provides that the 1975 Order does not apply to “service offences” within the meaning of the Armed Forces Act 2006 other than “recordable service offences” as defined in the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009. Its effect is that the 1974 Act will apply in relation to service offences that are not “recordable service offences”.

Articles 4 to 10 of this Order make amendments to the coverage of the 1975 Order by adjusting the range of spent convictions and cautions covered by it. Articles 5 and 7 amend articles 3 and 3A of the 1975 Order respectively so that the 1974 Act is no longer disapplied in respect of a “protected caution” or a “protected conviction” when a question is asked to assess a person’s suitability for certain purposes. Article 8 amends article 4 of the 1975 Order so that the 1974 Act is no longer disapplied in respect of a “protected caution” or a “protected conviction” when a decision is made for certain purposes. The definition of a “protected caution” and a “protected conviction” is provided in article 4, which inserts new article 2A into the 1975 Order. A caution is a “protected caution” if it was given otherwise than for an offence listed in new article 2A(5) and, where the person was aged 18 or over at the time the caution was given, six years or more have passed since the caution was given. A conviction is a “protected conviction” if it was given otherwise than for an offence listed in new article 2A(5), a sentence other than custody or service detention was imposed, the person has not been convicted of any other offence at any time and, where the person was aged 18 or over at the time of the conviction, 11 years or more have passed since the date of conviction. Shorter time periods apply in respect of a person aged under 18 at the time the caution was given or the date of conviction.

Articles 6 and 9 introduce new articles 3ZA and 4ZA respectively into the 1975 Order. These new articles continue the existing effect of articles 3 and 4 in certain circumstances so that in those circumstances the 1974 Act continues to be disapplied even in relation to a “protected caution” or a “protected conviction”.

Article 10 of this Order amends article 6 of the 1975 Order. It provides that, where a question is asked to assess a person’s suitability for purposes concerning offices or employment in Jersey, Guernsey or the Isle of Man, specified provisions of the 1974 Act do not apply in the same way they would not apply if the question was covered by article 3, 3A, 3ZA, 4 or 4ZA of the 1975 Order.

Articles 11 and article 12 of this Order amend Schedules 1 and 3 to the 1975 Order respectively. The amendments replace certain provisions in order to reflect other legislative changes and remove from that Schedule certain occupations and professions in Scotland. This reflects that separate provision in respect of Scotland is made in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 (S.S.I. 2013/50). Article 11(3)(b) also reorganises existing paragraph 6 in Part 1 of the Schedule.

No impact assessment has been produced in relation to this Order as no impact on business or the private or voluntary sector is foreseen.