Criminal Conviction A Problem?

[scroggs]

Re: Criminal Conviction A Problem?

Yet again, we have bits of information cobbled together with assumptions to produce advice which is at best misleading. Let's start again:

The Rehabilitation of Offenders Act 1974 (ROA) is the specific piece of legislation affecting ex-offenders' employment opportunities. Under certain circumstances, it enables them to 'wipe the slate clean' of their criminal record once a period of time has lapsed from the date of conviction. Provided they have not been re-convicted for another offence, their conviction is said to become spent and for the purpose of employment it can be treated as though it never existed. This means that if the ex-offender is asked on an application form, or at an interview, if they have a criminal record they are entitled to answer 'no'. It is illegal for an employer to discriminate against the ex-offender on grounds of their spent conviction.

The kind of sentences covered by the ROA include custodial (up to 2.5 years), probation, binding over, youth detention and a number of military sentences. Note it is the sentence, not the offence, which determines whether the ROA applies. The longest period that must elapse before the offence is considered spent is 10 years; the shortest is 6 months.

When a person applies for a job, an employer, if he feels that it is appropriate, can ask the applicant to obtain a Basic Disclosure (which will detail all convictions that are currently unspent under The Rehabilitation of Offenders Act 1974), from Disclosure Scotland.

Standard Disclosure

A Standard Disclosure will be available for those applying for positions listed in The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions). A Standard Disclosure will contain details of all convictions on record, whether spent or unspent and any cautions, warnings and reprimands. A Standard Disclosure will be for individuals applying for the posts whose duties involve:

1) Regular contact with children and young people under the age of 18.

2) Regular contact with the elderly, sick and handicapped people.

Enhanced Disclosure

Enhanced Disclosure will be available for those applying for positions which involves a greater degree of contact with children or vulnerable adults. This will involve those regularly caring for, supervising, or being in sole charge of children and young people or vulnerable adults.

Enhanced Disclosures will include all of the details contained in the Standard Disclosure (spent and unspent convictions), cautions, warnings and reprimands and any non-conviction information held locally by police, where this is considered relevant to the post or voluntary work being sought.
To ensure adequate protection for the public, exemptions have to be made so that information about “spent” convictions may not be withheld in certain circumstances. These exemptions are set out in statute – ‘the Exceptions Order’.

The Exceptions Order sets out the types of work and range of proceedings involving a particular level of trust to which the protection offered by the Rehabilitation of Offenders Act to ex-offenders is not available. Types of work include work with children, work with vulnerable adults and employment involving the administration of justice, national security and financial services. It does not necessarily debar ex-offenders from these jobs. Generally it will be for an employer or other authorised person to make an assessment of the relevance of the conviction.

However, if the person is seeking work in a child care position and their previous convictions are such that they have been included in the list, it will be unlawful for the person to be employed in a child care position.

The Exceptions Order now makes it clear that questions about previous convictions can be asked of those who are seeking to train for any of the professions, offices, occupation or employments specified in the Order, and of those who are currently training for such positions.

Excepted Professions, Offices, Employments and Occupations

Offices and Employments

 Judicial Appointments
 Prosecutors, Officers assisting prosecutors, and Officers assisting in the work of the Crown Office
 Signing Justices, and their Clerks and Assistants
 Clerks (including depute and assistant clerks) and officers of the High Court of Justiciary and the Court of Session and the District Court, Sheriff Clerks (including sheriff clerk depute) and their Clerks and assistants
 Precognition Agents
 Constables, Police Custody, Security Officers, Persons appointed as Police Cadets to undergo training with a view to becoming Constables and persons employed for the purposes of, or to assist the Constables of, a Police Force established under any enactment, Naval, Military and Air Force Police
 Any employment which is concerned with the administration of, or is otherwise normally carried out wholly or partly within the precincts of a prison, remand centre, young offenders institution, detention centre or removal centre, and members of visiting committees for prisons appointed under rules made under section 39 of the Prisons (Scotland) Act 1989(a) and members of visiting committees for remand centres and young offenders institutions appointed under section 19(3) of that Act
 Traffic wardens appointed under section 95 of the Road Traffic Regulation Act 1984(b) or section 9 of the Police (Scotland) Act 1967(c)
 Any employment or work which is concerned with the provision of a care service
 Any employment or work which is concerned with the provision of health services and which is of such a kind as to enable the holder to have access to persons in receipt of such service in the course of that person’s normal duties
 Any employment or work in a child care position
 Any person who provides a service, or who seeks to provide a service under Part 4 of the Adults with Incapacity (Scotland) Act 2000(d)
 Any employment in the Royal Society for the Prevention of Cruelty to Animals where the person employed or working, as part of his or her duties, may carry out the killing of animals
 Any office or employment in the Serious Fraud Office
 Any office or employment in the National Crime Squad or the National Criminal Intelligence Service
 Any office or employment in Her Majesty’s Customs and Excise
 Any employment which is concerned with the monitoring, for the purpose of child protection, of communications by means of the internet
 Any office or employment in the Social Services Council
 Her Majesty’s Inspectors or any person appointed by Ministers for the purposes of the Education Act 1980(e)
 The principal Reporter or officers appointed under the Local Government Act to assist that officer
 Members of a panel established by virtue of the Children Act 1995(h) (panels for curators ad litem, reporting officers and safeguarders)

Occupations

 Firearms dealer
 Any occupation in respect of which an application to the Gaming Board for Great Britain for a licence, certificate or registration is required by or under any enactment
 Any occupation which is concerned with the management of a place in respect of which the approval of the Secretary of State is required by section 1 or the Abortion Act 1967
 Any occupation in respect of which the holder, as occupier of premises on which explosives are kept, is required by an Order in Council made under section 43 of the Explosives Act 1875 to obtain from the police or a court of summary jurisdiction a certificate as to his fitness to keep explosives
 Taxi driver or private hire driver


Professions

 Medical Practitioner
 Advocate, Solicitor
 Chartered Accountant
 Dentist, Dental Hygienist, Dental Auxiliary
 Veterinary Surgeon
 Nurse, Midwife, Health Visitor
 Ophthalmic Optician, Dispensing Optician
 Pharmaceutical Chemist
 Registered Teacher
 Any profession to which the Professions Supplementary to Medicine Act 1960 applies and which is undertaken following registration under the Act
 Registered Osteopath
 Registered Chiropractor
 Chartered Psychologist
 Actuary
 Registered European Lawyer, Registered Foreign Lawyer
 Social Worker
Social Service Worker

You'll note that airline pilot is not included.

As for responsibilities aboard a civil transport aeroplane, you will find that the captain is not responsible for the pastoral and welfare care of children or vulnerable people on board; that is properly the responsibility of the airline and such specialist qualified personnel as it employs (who may themselves be subject to Standard or Advanced Disclosure). The Captain's care responsibility is limited to the safety of all occupants of the aircraft, irrelevant of their status - not the kind of responsibility envisaged by the legislation quoted above.

Unless they are very strange, your employer will ask for nothing more than Basic Disclosure, and the ROA applies in full. If they ask for more, you may reasonably ask what responsibilities they have in mind for you that require this higher level of disclosure.

Scroggs