Reform of the Rehabilitation of Offenders Act 1974

Reform of the Rehabilitation of Offenders Act 1974

The following submission was prepared by Howard League Scotland in response to the Scottish Government's May 2015 consultation paper on reform of the Rehabilitation of Offenders Act 1974.

1. We welcome the opportunity to comment on the Scottish Government’s proposals for reform of the Rehabilitation of Offenders Act 1974 (“the Act”). In our meetings with the former and current Cabinet Secretary for Justice, we have consistently highlighted the need to reform the Act.

2. The Act was reformed in England and Wales and those changes came into force in March 2014, putting those with criminal convictions in Scotland at a disadvantage compared with their English and Welsh counterparts.

3. We welcome the fact that the proposed changes can be implemented without delay by means of secondary legislation. However, as indicated in Chapter 3 of the consultation document (‘Next Steps’), there is a pressing need for wider reform, which may necessitate primary legislation.


4. The economic and social costs of reoffending are considerable. Enabling those with convictions to become rehabilitated and reintegrated into society is in everyone’s interests: it improves public safety and reduces reoffending.

5. Howard League Scotland (HLS) agrees that a balance must be struck between allowing those with criminal convictions to turn their lives around and ensuring public protection. However, it is clear that, over the past four decades, the balance has become skewed against allowing those with convictions to become rehabilitated.

6. As the consultation document notes, average custodial sentence lengths have risen quite significantly since the Act was introduced. In particular, more people are being sentenced to custody for periods between six months and four years.

7. Scotland’s prison population has grown from 4,860 in 1980 to 7,732 in 2015. Our imprisonment rate is one of the highest in Western Europe.

8. Over one in three male adults and almost one in ten female adults in Scotland has at least one criminal conviction.

9. Therefore more individuals are coming under the scope of the Act and with sentence length inflation, more offenders can never become rehabilitated in the eyes of the law. This impacts not only on their employment prospects but access to education, housing and financial service products (mortgages, insurance etc.).


10. There are a number of areas that require further consideration. This should happen without delay, given the likelihood of a need for primary legislation:

Rehabilitation periods for determinate sentences
11. Any determinate sentence assumes that there is a point at which someone’s debt to society will have been repaid. And yet, even once the ‘rehabilitation periods’ in the Act have been amended, anyone sentenced to custody for a period of four years or more will have to disclose that conviction for the rest of their life. We have to ask ourselves how being faced with the prospect of a lifetime of potential discrimination in the employment market will impact on an individual’s incentive to desist from committing further crimes.

12. Therefore we would like to see consideration being given to the possibility of a mechanism for reviewing whether those who have served long term sentences should have to disclose those convictions for the rest of their lives.

Tackling employer discrimination
13. In a report by the Chartered Institute of Personnel and Development (CIPD) in 2010 a third of employers admitted to deliberately excluding those with a criminal conviction when recruiting . The report noted that “employer attitudes remain the most significant barrier that may prevent more people from some groups from entering, remaining and progressing within employment.” It also concluded that “ex-offenders are the most disadvantaged of these various groups”.

14. Many employers are unclear about what their responsibilities are with regard to the Act. At present, there is no penalty for discriminating against an individual without good cause on grounds of a previous conviction. Consideration should be given how best to ensure that employers comply with the requirements of the law. Employers should also be able to access support and advice on risk assessment. And where employers do retain a right to ask about past convictions, any exclusions should be based on an offence with direct relevance to the job.

Review of the Exclusions and Exceptions Order
15. There is a need to review the Exclusions and Exceptions Order (that is, the categories of employment and proceedings to which the 1974 Act does not apply as it is considered appropriate that access to spent conviction information continues to be available for the purposes of public protection). The list of professions that are exempted from the scope of the Act has increased considerably since the legislation was introduced, meaning that many types of employment are now effectively closed to those with spent convictions.

Children’s Hearing System
16. The proposed changes to the Act will not impact on offences admitted to in the Children’s Hearing System (CHS). Almost all offences admitted to/proofed in the CHS now count as Alternatives to Prosecution (AtP) except for those for which the police can retain DNA evidence. This means that any such offences committed by children aged between 8 and 12 will remain on their record until they are aged about 40, even although no longer prosecutable in the courts. This is one of the anomalies of not raising the age of criminal responsibility to 12 along with the age of prosecution.

Reducing the size of the prison population
17. As noted above, Scotland has one of the highest imprisonment rates in Western Europe. One way of reducing the numbers of individuals who fall under the scope of this legislation is to reduce the numbers of people being sent to prison in the first place. Greater use should be made of early intervention, diversion from prosecution and community-based disposals. We would also like to see the Scottish Government revisit the presumption against short term sentences, which are known to be ineffective in reducing reoffending.

The ‘Google’ effect
18. As highlighted by Unlock in their response to the 2013 consultation, reform of the Act does not tackle the ‘Google’ effect. The proliferation of online media means that, even if someone with a conviction has become spent, details of their conviction may be available via an internet search. Consideration should be given to measures to mitigate against the retention of online information about past convictions that might unfairly impede an individual’s ability to become fully rehabilitated/secure employment.

Submitted on 12 August 2015