Draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013
Draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales)
Order 2013
The Committee consisted of the following Members:
† Alexander, Heidi (Lewisham East) (Lab)
† Blackwood, Nicola (Oxford West and Abingdon) (Con)
† Chapman, Jenny (Darlington) (Lab)
Denham, Mr John (Southampton, Itchen) (Lab)
† Evennett, Mr David (Lord Commissioner of Her Majesty's Treasury)
† Lloyd, Stephen (Eastbourne) (LD)
† McDonagh, Siobhain (Mitcham and Morden) (Lab)
McDonnell, John (Hayes and Harlington) (Lab)
† Munn, Meg (Sheffield, Heeley) (Lab/Co-op)
† Paice, Sir James (South East Cambridgeshire) (Con)
Paisley, Ian (North Antrim) (DUP)
† Redwood, Mr John (Wokingham) (Con)
† Scott, Mr Lee (Ilford North) (Con)
† Vaz, Valerie (Walsall South) (Lab)
† Watkinson, Dame Angela (Hornchurch and Upminster) (Con)
† Williams, Roger (Brecon and Radnorshire) (LD)
† Wright, Jeremy (Parliamentary Under-Secretary of State for Justice)
† Wright, Simon (Norwich South) (LD)
Nick Beech, Committee Clerk
† attended the Committee
Second Delegated Legislation Committee
Monday 20 May 2013
[Mrs Linda Riordan in the Chair]
Draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013
4.30 pm
The Parliamentary Under-Secretary of State for Justice (Jeremy Wright): I beg to move,
That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013.
The Chair: With this it will be convenient to consider the draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013.
Jeremy Wright: It is a great pleasure to serve under your chairmanship, Mrs Riordan.
The Court of Appeal recently decided that the disclosure provisions of the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 are incompatible with article 8 of the European convention on human rights in that they provide for the disclosure to employers of, and allow employers to ask about and take into account, all spent convictions and cautions on a blanket basis. The Court found the regime, in so far as it relates to historical and minor spent convictions and cautions, to be disproportionate. The orders that we are considering respond to that judgment and provide that certain spent convictions and cautions will no longer be subject to disclosure for employment or other specified purposes, although they maintain important safeguards for public protection.
The Rehabilitation of Offenders Act 1974 aims to aid the employment and resettlement of ex-offenders who have put their criminal past behind them by declaring certain convictions to be spent after a specified period of time following the conviction. For most purposes, a spent conviction is deemed as having never existed, and an ex-offender will not have to reveal it when applying for most jobs or for insurance, for example. The rehabilitation periods are determined according to the sentence imposed to reflect the severity of the offence.
There must, of course, be a balance to ensure that the public are adequately protected. The existing exceptions order therefore allows certain employment positions, bodies and proceedings to be excluded from the general application of the 1974 Act. When employment involves significant contact with vulnerable groups, including children, the exceptions order provides that employers are able to ask about and take into account all spent convictions and cautions when considering an individual for a job. Linked to that, the Police Act 1997 requires that all cautions and convictions, whether spent or not,
and regardless of how old or minor they may be, are disclosed on criminal record certificates issued by the Disclosure and Barring Service. It is that regime, which enables all spent convictions and cautions to be asked about, disclosed and taken into account, that the Court of Appeal has found to be incompatible with the convention.Through the amendment to the exceptions order and the related amendment to the Police Act 1997, we are restricting the spent caution and conviction information that is subject to disclosure. In those cases covered by the exceptions order for which disclosure of spent convictions and cautions is required, we are creating a protected caution or conviction. The amendments provide that the 1974 Act is no longer disapplied in respect of a protected caution or conviction when a question is asked about a person’s criminal convictions. In effect, the changes mean that certain old and minor spent cautions and convictions will no longer be subject to disclosure under the exceptions order, and employers or other decision makers will not be able to take them into account when making decisions about any individual. However, I want to emphasise our commitment to maintaining public protection and national security. For example, full disclosure of spent cautions and convictions will still be required in respect of employment and other decisions in relation to safeguarding national security and recruitment to the police service.
Under the provisions, all cautions and convictions for serious violent and sexual offences, and for certain other specified offences, will always remain subject to disclosure. In addition, all convictions for any offences that are so serious that they result in a custodial sentence will remain subject to disclosure. However, for other non-specified offences, cautions and equivalents administered to a young offender will not be subject to disclosure after a period of two years, adult cautions will not be subject to disclosure after a period of six years, a conviction received as a young offender resulting in a non-custodial sentence will not be subject to disclosure after a period of five and a half years, and an adult conviction resulting in a non-custodial sentence will not be subject to disclosure after a period of 11 years. However, a conviction will not be subject to disclosure only if there is no other conviction on the individual’s record, whether as a young offender or an adult. We consider the changes to be proportionate. They ensure that public protection is not compromised, while avoiding unnecessary intrusion into people’s lives.
We are also making some changes to how service offences are treated. At present, if a serviceperson or former serviceperson is applying for any of the positions covered by the exceptions order, that person will have to disclose previous convictions for all service offences. However, that includes service offences that would not amount to criminal conduct in the civilian sphere and would not be recorded on the police national computer, such as being absent without leave. The changes remove those non-recordable service offences from the scope of the exceptions order altogether so that, once spent, they will not need to be disclosed for any employment purposes.
In conclusion, the orders before us ensure that our legislation is up to date and effective in its aim of protecting the public while maintaining a proportionate balance towards the resettlement of offenders. I commend the orders to the Committee.
4.36 pm
Jenny Chapman (Darlington) (Lab): It is a great pleasure to serve under your chairmanship, Mrs Riordan.
The Minister explained the orders as clearly as he could. However, this is a complicated subject for colleagues to get their heads around, and the issues are not particularly straightforward. We are dealing with exceptions orders and various types of offence. The Government probably did not have these measures in mind a couple of years ago, as they are a response to a court ruling that has changed what we should ask an offender to disclose about their history.
The Rehabilitation of Offenders Act 1974 provides for certain offences to become spent after a specified amount of time, which allows those who have made good and stayed the course to be treated as rehabilitated, thus removing barriers to resettlement and employment. The existing exceptions order includes some of the most important provisions attached to the 1974 Act. The exception of sensitive professions, employment and offices to non-disclosure allows us to afford proper protection to children and adults in vulnerable positions, such as school kids, patients, victims, disabled people and the elderly. Striking a balance between public safety, which must be our first priority, and sensible rehabilitative measures is the crux of getting the system right, but it is not an easy task. The system as it stands does not work perfectly.
I shall cite a few examples to help hon. Members to understand what we are making a decision about today. They are likely to be aware of the case of a police and crime commissioner candidate who was forced to step down on account of a minor offence he had committed when he was 13 years old, for which he was fined £2 and 10 shillings on two counts, which dates the events. One of the orders before the Committee provides for the non-disclosure of single minor convictions and cautions in all cases.
We support the detail of the listed offences that are relevant to the orders. I spent some time going through the list to try to find an offence that had been left out, but it is pretty comprehensive. Such safeguards are vital, as without them the changes would not be acceptable. The exclusion of any violent or sexual offence, of any offence that warranted a sentence or was related to the safeguarding of vulnerable groups, and of any conviction when it was not the only one on an offender’s record, ensures that the most serious offences and any repeat offenders are taken out of the scope of the order. That said, we need to be assured that the parameters that the Government have set are the right ones.
In the 12 months to September 2012 more than 7,000 community sentences were given out for burglary, more than 2,500 for robbery and more than 36,000 for theft. Those are not minor offences, so will the Minister assure us that no case of burglary, robbery or theft that included violence will be eligible to be a protected conviction? I am sure he can do so, having listened to his speech. Will he also confirm that only a single offence committed by someone with an entirely clean record prior to and following it would be eligible for non-disclosure?
On sexual offences, a 50-year-old man was convicted last week for downloading indecent images of children as young as six, and was sentenced to a community
order. That example is just an illustration, but will the Minister let us know—I am sure that he will reassure me on these points—whether online offences of that and any other sexual nature will be counted as a sexual or safeguarding offence and will therefore always, without exception, be required to be disclosed? I know that domestic violence cases will be of concern to colleagues. They will rightly be covered by the bar on violent crime, but has the Minister considered whether harassment or stalking offences should be disclosed if a perpetrator seeks to enter a profession in which they will work closely with vulnerable people?Last year, more than 5,000 community orders were given out for fraud. In February, five offenders in west Yorkshire received community sentences after being found guilty of conspiracy to defraud Royal Bank of Scotland Insurance. The loss to the company due to the scam was more than £270,000. I am concerned that if they do not commit any further offences for 11 years and a member of the group then applies to join the police, for example, that offence might not have to be disclosed, so will the Minister assure me that that would not be the case? Will he give us the rationale behind the 11-year mark, because we are not quite sure why that makes sense? Will he tell the Committee what checks will be in place to ensure that the new system is working well? If restrictions need to be made in the future, will he be happy to implement them?
The Police Act 1997 order is a consequential measure. Depending on the Minister’s answers to my questions, we will agree with that alongside the rehabilitation of offenders order. Does he have any thoughts about the inclusion of taxi drivers on the list of excepted professions? At the moment they are not included, but there are concerns about whether they should be included in that list of occupations.
4.43 pm
Meg Munn (Sheffield, Heeley) (Lab/Co-op): I want to ask a number of questions for clarification. This is a very complex area, and although the Minister set out the position, it is difficult to understand exactly what we are being asked to approve. I have looked through all the paperwork, but I still seek some reassurance.
Paragraph 7.6 of the explanatory memorandum to the exceptions order sets out a range of disclosure periods for non-specified offences—two years, six years, five and a half years and 11 years. I want to know the rationale behind that, but I also want to ask the Minister about the range of years. Generally speaking, it is good idea that the public at large understand our system and have an easy way of knowing what to expect for people who have committed certain offences. We are struggling with this matter today, so I doubt it will penetrate the thoughts of the general public, and it is therefore enormously important that we have the rationale for the approach on record.
On the general disclosure of offences, I want to concentrate on occupations, and especially those that involve safeguarding children and vulnerable adults. The Minister might be aware that I chair the all-party group on child protection and that I was employed in social services for nearly 20 years before I came to the House. Part of my role was to recruit social workers and care workers, and it was enormously important to
understand their background in the fullest sense. I do not want the Minister to go into lots of detail, but I seek his reassurance that for those professions, in which trust and confidence are absolutely vital, all relevant information will be available to those who recruit people.4.45 pm
Dame Angela Watkinson (Hornchurch and Upminster) (Con): Will my hon. Friend the Minister clarify how a minor offence is designated? Is there any opportunity for inconsistency or interpretation?
4.46 pm
Jeremy Wright: I will do my best to deal with the points that have been raised. I start by thanking the hon. Member for Darlington for her opening remarks. She is entirely right that we are dealing with a complex matter that is not easy to simplify, but I think the best way to do so is to explain that the offences that will still be taken into consideration in every case include all those on the very extensive list to which she referred, and all those that result in a custodial sentence of any length. In addition, an offender will be able to benefit from the provisions only if they have one offence on their record; if they have any more than that, they will not benefit at all. She is right, too, that the question is always one of balance. We have to ensure that lives are not unreasonably blighted by very old or very minor convictions, even in the serious circumstances covered by the exceptions order. We also have to ensure, however, that public protection is maintained, and we believe that the proposals strike the right balance.
The hon. Lady asked about a number of specific offences. I hope she will forgive the fact that I have not had the opportunity to go through the extensive list of offences under the Sexual Offences Act 2003 to confirm whether the offences to which she referred are included. All serious sexual offences are included, but I will write to her to confirm the points that she has raised. I have, however, had the chance to look at offences under Theft Acts, and the offences that would continue to be disclosed under any circumstances, regardless of disposal, include aggravated burglary, aggravated burglary with intent to commit an offence, aggravated vehicle taking, assault with intent to rob—the section 8 offence—burglary with intent to inflict grievous bodily harm, burglary with intent to rape and burglary with intent to cause unlawful damage. I stress again that if someone receives a custodial sentence for any offence, that offence will still be disclosable under the new regime. Similarly, if they have more than one offence on their record, all offences will be disclosable.
The hon. Lady asked about harassment and stalking. Again, I hope she will forgive the fact that I have not had the chance to look down the list for such offences, but I will let her know about that. She and the hon. Member for Sheffield, Heeley asked about the length of time during which a conviction or caution would remain subject to disclosure. We seek to impose a period of time that is in excess of the normal obligations under the Rehabilitation of Offenders Act 1974. There is a reason for the difference in lengths of time. For example, we would all expect a conviction to remain active and relevant for longer than a caution. It is also established practice that the period of rehabilitation for young
offenders is shorter than that for adult offenders, and the rehabilitation period for juvenile offenders who receive a caution is half the period that applies to adult offenders who receive a caution. That is the logic behind what we have done.The hon. Member for Darlington raised the question of taxi drivers. They are included under the 1975 exceptions order—
Jeremy Wright: If the hon. Lady gives me a moment, I will tell her. It is included in that exceptions order—I saw it earlier. The answer is: in schedule 2 to the exceptions order, titled, “Exceptions, certificates and permits”, where the fourth in the list is taxi driver licences. That is included and therefore subject to the routines that I have described.
The hon. Lady asked whether we will keep the matter under review—of course we will. She knows that we are considering cautions and out-of-court disposals more broadly, but we believe that this is the appropriate response to the order made by the court in relation specifically to the exceptions order and indeed the Police Act.
My hon. Friend the Member for Hornchurch and Upminster asked about minor offences. In the context of the order, I think it is easier to describe things that are not minor. The order will apply in relation to all those offences that receive a custodial sentence. Any conviction or caution for any offence on our extensive list, which I will certainly share with her—it is excellent bedtime reading and a good cure for insomnia, until one gets to the Sexual Offences Act, when it gets rather more exciting—will not be included in the filtering mechanism I described. In addition, none of the provisions of the order will apply to any offence beyond the first offence. I hope that she and the rest of the Committee are reassured.
The Committee divided: Ayes 10, Noes 5.
AYES
NOES
Question accordingly agreed to.
DRAFT POLICE ACT 1997 (CRIMINAL RECORD CERTIFICATES: RELEVANT MATTERS) (AMENDMENT) (ENGLAND AND WALES) ORDER 2013
Motion made, and Question put,
That the Committee has considered the draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013.—(Jeremy Wright.)
The Committee divided: Ayes 10, Noes 5.
AYES
NOES
Question accordingly agreed to.