Is The Conviction Spent?

[ladydyer]

In 2009 my husband was given a 2 year conditional discharge and was attending a program once a month but in 2010 the mags amended the order and the program requirement was removed. Can anyone say for sure if the conviction is spent as i believe its 1 year from the date of conviction or when the conditional discharge ends (whichever is longer) but the program part is throwing me of track.

[CJHorse]

The conditional discharge ended in 2011, so the conviction becomes spent one year after that. Attendance at a program was a condition of the discharge but the magistrates, as they are empowered, later varied the conditions to remove that requirement. It has no effect on the length of the discharge or the spent conviction requirements.

[ladydyer]

Its says order amended and program requirement removed 2010. I have been told by Nacro and Unlock that the rehabilitation period is one year from the date of conviction or the date the conditional discharge ends (whichever is longer) which would mean that it was spent in 2011 but the order was amended in 2010, does this not mean that it was spent in 2010? Im glad that the program requirement does not affect the rehabilitation period.

[New Judge]

There is a little confusion here. Assuming your husband was convicted by a court in England or Wales Conditional Discharges do not have conditions (such as supervision or attending programmes) attached. The only condition available is that you commit no further offences. Furthermore they become “spent” as soon as the period of the discharge expires.

To have been subject to a programme requirement your husband must have been subject to a Community Order. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the 1974 Rehabilitation of Offenders Act was updated to reflect new rehabilitation periods. Offences which were dealt with by way of a Community Order become spent one year after the order expires. Note that Community Orders are given a duration and that the duration will usually be longer than it takes to complete the requirement(s) (such as Programme Attendance or Unpaid Work). The rehabilitation period begins when the sentence has expired. If the Magistrates discontinued the order (rather than set it aside) then the rehabilitation period of one year begins from the date the order was discontinued. If it was set aside it is treated as if it never happened and the new sentence (if one was imposed) dictates the rehabilitation period.

What I am not sure about (but don’t have time to check just now) is that in 2010 the rehabilitation period for a community order was five years. I am not sure if the 2012 amendments were retrospective. I'll try to check later.

[ladydyer]

Thank you. His CRB says, Disposal, Order amended, program requirement removed in 2010. I am representing my husband in employment tribunal a week today and need to know if he is protected under the ROA. The rehabilitation period for community order in 2010 was 5 years. I know it has been changed to 1 year, can I apply this new rehabilitation period to his disposal or is it only for new convictions?
Long story short, my husbands ex employer laid him off due to not having any work. Its now going to tribunal and his ex employer is saying that he had to lay him off because of my husbands conviction (he is an electrician) I need to know if his conviction was spent so that I can argue The ROA, the part where you may not dismiss, exclude a person from an office, place of work, job etc because of a spent conviction.
I have no help/advice of the legal kind so appreciate any advice.

[New Judge]

So I'm assuming that it was a Community Order to which your husband was subject and not a Conditional Discharge. I also assume from what you say that they conviction was not disclosed by your husband (hence his former employer now saying he had to leave because of it). If he did disclose it and his employer took him on with that knowledge he would be hard pressed to now say he had to dismiss him because of the conviction.

I have looked at the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (which provides amendments to the rehabilitation periods in the ROA). It did not take effect until 10th March 2014 so although your husband’s conviction may now be “spent” under the new rules, it was not so before 10th March this year as before then the rehabilitation period was still 5 years. Details here:

https://www.gov.uk/government/publications/new-guidance-on-the-rehabilitation-of-offenders-act-1974

[ladydyer]

Yes, im reading the same. I have managed to get hold of the register extract which confirmed he was given a community order but the bit that is throwing me is the order amended and program requirement removed and what that means in terms of the rehabilitation period. I dont know if it means they removed it as they felt he didn't need it anymore or removed it because they felt the disposal was wrong?
My husbands ex employer knew of the conviction as soon as it had happened and even gave a character reference and time off to attend the program but is now saying that he didn't know and that he never gave a character reference or time off and I can't prove he is lying.
The CRB wasn't done until april 2012 and never mentioned that his CRB had any effect on his work. It wasnt untill my husband raised a greivance and resigned that his ex employer used the CRB as a reason of laying him off. The bottom line is that the CRB is being used to cover up the real reason my husband was layed off.

[New Judge]

When a community order is imposed it is given a duration. This is nothing to do with the “requirements” of the order and as I said earlier the duration of the order is usually longer than it will take to complete the requirements. (It can never be shorter). If one or more of the requirements is removed or amended that does not alter the length of the order (unless it is specifically stated in court, and this is unusual unless the entire order is set aside). This means the rehabilitation period begins at the end of the duration of the order and the period for a community order (before last month) was five years.

I’m a little confused as to why your husband’s employer asked for a CRB check. Since the recent changes to the system his employment as an electrician would certainly not qualify for a “Disclosure and Barring” check (the new term for CRB checks). Only occupations or positions which are exempt from the Rehabilitation of Offenders Act now qualify for DAB checks. These positions are those where the subject works with or has access to children or vulnerable adults and some positions in businesses supervised by the Financial Conduct Authority. No other positions qualify for the checks and they will not be undertaken.

I think your husband’s ex-employer my have some difficulty in showing that he was not aware of his conviction. Firstly it should not be too difficult to show that he (the employer) had requested the CRB check and so presumably had taken an interest in the results. Secondly if he provided a character reference in court that should be lodged with the court papers.

[ladydyer]

I checked with the courts and they destroy any paper after after 3 years and just keep the file on computer :(
The CRB check was done because he was going to be doing some work in a college during the summer holidays but then it was realized that the students still had access to the building so they moved him somewhere else.
I know under the new DBS, he would not be eligible for the check but I don't know about the old rules.