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Criminal Convictions

Over the last few years there seems to have been a regular parade of sickening cases of sexual assaults upon children and vulnerable adults. From Jimmy Savile et al to the Rotherham scandal, it’s been a dreadful and worrying insight into the depravity of some sections of society. On Friday Paul Gadd better known as Gary Glitter joined the unlovely list (again). Gadd was sent to prison for a total of 16 years for attempted rape, four counts of indecent assault and one count of having sex with a girl under 13 years’ of age. Although the incidents happened between 1975 and 1980 they did not come to light until 2012 when the Metropolitan Police launched Operation Yewtree, an investigation into child abuse allegations following the Jimmy Savile scandal.

This is not the first time Gary Glitter has been convicted for such offences. In late 1999 he was jailed for two months for holding 4,000 images of child sex abuse. He was convicted whilst in Vietnam for molesting two girls aged 11 and 12. This time he was jailed for three years. His celebrity status all of these convictions have made headline news over the years. Of course not all convictions are made public knowledge and employers need to be able to check that a candidate has no previous convictions which may potentially put someone at risk.

In most circumstances there is no legal obligation for a candidate to reveal any spent criminal convictions under the Rehabilitation of Offenders Act 1974, as amended by changes introduced in the Legal Aid and Sentencing and Punishment of Offenders Act 2012. Under the ROA following a specified period of time which varies according to the disposal administered or sentence passed, cautions and convictions (except those resulting in prison sentences of over four years and all public protection sentences*) may become spent. As a result the offender is regarded as rehabilitated. If a conviction is ‘spent’ an employer has to treat it as though the conviction never happened and must not subject the employee to dismissal or another form of detriment because of it.

There are exceptions to this rule. Occasions will arise when a candidate has a legal obligation to notify a prospective employer of any spent convictions. This obligation falls under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. An employer can check for such convictions by requesting a Disclosure and Barring Service (DBS) check. The positions which fall into this category include (but are not limited to):

  • Working with vulnerable adults i.e. the elderly.
  • Working with children.
  • Health care professionals.
  • Barrister and chartered accountant (on entry into the profession).
  • Designated officers for magistrates’ courts.
  • Any employment within a prison or detention centre.
  • Traffic wardens.
  • Positions in the Financial Conduct Authority.
  • Police and Crime Commissioners.

In order to request a DBS check the role that the employer is recruiting for must be included in the Exceptions Order mentioned above. S56 of the Data Protection Act which comes into force in the near future means that you cannot require an employee to take a DBS check as part of recruitment unless there is a genuine requirement to do so. For more enhanced checks the role must also be included in the Police Act 1997 (Criminal Records) regulations.

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