Policy paper

Criminal records reform – rehabilitation periods: Equalities Impact Assessment

Updated 2 August 2023

This was published under the 2019 to 2022 Johnson Conservative government

1. Purpose of this document

The Police, Crime, Sentencing and Courts Bill seeks to amend the Rehabilitation of Offenders Act 1974 (ROA) to allow some sentences of over 4 years to become spent and to reduce rehabilitation periods for sentences of 4 years and under in England and Wales. This equality analysis supports the Secretary of State in fulfilling his duty under the Public Sector Equality Duty (PSED) by having due regard to the equality impact of implementing these measures.

This document assesses the potential equalities impacts that have been identified. It considers the justification for the change and any necessary mitigating actions which have been proposed to reduce the likelihood of the risks and includes an assessment of any equalities benefits.

2. Policy summary

The ROA governs the disclosure of cautions and convictions for most employment purposes. Under the ROA, following a specified period of time (which varies according to the disposal administered or sentence passed), all cautions and most convictions resulting in custodial sentences of up to and including 4 years, may become ‘spent’.

Where a conviction has become spent, the individual is treated as rehabilitated in respect of that offence and is not obliged to declare it for most purposes, such as when applying for most jobs or insurance. Subject to limited exceptions, someone with a spent conviction shall be treated for all purposes in law as a person who has not been convicted of the offence which was the subject of that conviction.

It may take up to 7 years for most convictions to become spent, and those resulting in prison sentences of over 4 years may never become spent. The table below sets out the current rehabilitation periods:

2.1 Current rehabilitation periods (existing regime in England and Wales)

Sentence	Adults	Under 18s
Community Order	1 year	6 months
Custody of 6 months or less	2 years	18 months
Custody of between 6 months and 30 months	4 years	2 years
Custody of between 30 months and 4 years	7 years	3.5 years
Custody of more than 4 years	Conviction is never spent	Conviction is never spent

Some jobs – generally those involving national security, positions of public trust and those that work with children or vulnerable people – are eligible for standard or enhanced disclosure and barring service (DBS) certificates. These checks provide more information about convictions, to enable employers to take informed decisions about recruitment for sensitive roles.

Under this policy, custodial sentences of over 4 years of a type which are not already excluded (such as life sentences or sentences of imprisonment for public protection) will be able to become spent for the first time. However, to ensure the protection of the public, this change will not apply to persons sentenced to more than 4 years following a conviction for any serious violent, sexual or terrorist offences listed in Schedule 18 of the Sentencing Code. The policy therefore means that such convictions will continue to never become spent.

The Bill will also reduce the existing rehabilitation period for sentences of 4 years and under, in accordance with the following proposals:

2.2 Proposal for new rehabilitation periods

Sentence	Adults	Under 18s
Community Order	At end of Order	At end of Order
Custody of under 1 year	1 year	6 months
Custody of between 1 year and 4 years	4 years	2 years
Custody of more than 4 years	7 years	3.5 years

The objective of this change is to improve access to employment and ensure that fewer people have the ongoing stigma of their conviction acting as a barrier to rehabilitation.

Employment is often vital for desistance^{[footnote 1]} however 50% of employers would not consider hiring an ex-offender.^{[footnote 2]} This means that disclosure of a criminal record often results in rejection, inhibiting ex-offender chances of employment and rehabilitation significantly. Reforming the regime to ensure that criminal records are disclosed only where potentially relevant to the role should improve ex-offender employment and support public protection by reducing reoffending, compared to the status quo.

The measures in the Bill will only apply to the basic disclosure regime and therefore checks for those applying for sensitive roles and/ or to work with vulnerable people or children would not be impacted by this change.

3. Public sector equality duty (PSED)

Under the Equality Act 2010, when exercising its functions, the MoJ has an ongoing legal duty (PSED) to pay due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct under the Equality Act 2010
• advance equality of opportunity between different groups of persons who share a protected characteristic and those who do not
• foster good relations between different group

The payment of due regard to the PSED needs to be considered in light of the 9 protected characteristics:

• ethnicity
• sexual orientation
• marriage/civil partnership
• gender (sex)
• religion or belief
• gender reassignment
• disability
• age
• pregnancy/maternity

4. Sources of information

The main source of information used for this analysis is data on Criminal Justice System (CJS) outcomes (specifically sentencing) by age, sex and ethnicity in the annual Criminal Justice System Statistics Quarterly (CJSQ).

We have also consulted:

• Statistics on Race and the Criminal Justice System 2018
• Statistics on Women and the Criminal Justice System 2017^{[footnote 3][footnote 4]}
• HM Prison and Probation Service (HMPPS) Offender Equalities Annual Report 2018 to 2019

5. Availability of data

Detailed data about sentenced prisoners in the affected cohort are widely available for three of the nine protected characteristics – age, sex and ethnicity. We have used this data for our equality analysis. Although there are some data available on those serving sentences of imprisonment by other protected characteristics (see HM Prison and Probation Service (HMPPS) Offender Equalities 2018/19 report), this does not allow us to compare the cohort of prisoners who will be affected by this change as we cannot match offenders by these characteristics to sentence length. We have not presented data where they are not available at sufficient quality and with sufficient coverage to be meaningful. Data are presented where known, therefore where sex, ethnicity or age are not stated or unknown they are omitted from analysis.

6. Equality considerations

6.1 Eliminating unlawful discrimination

Direct discrimination

Direct discrimination occurs when a policy would result in people being treated less favourably because of a protected characteristic. Our assessment is that this change is not directly discriminatory within the meaning of the 2010 Act, as it applies in the same way to all individuals regardless of their protected characteristics. It is the nature of the offence and the seriousness of their offending, reflected in the sentence they receive, that determines whether the change applies. No offender will be treated less favourably in relation to any protected characteristic.

The proposals are not directly discriminatory within the meaning of the Equality Act as they apply equally to people with a criminal record, irrespective of whether they have a protected characteristic: we do not consider that the measures would result in people being treated less favourably because of protected characteristics.

Indirect discrimination

Indirect discrimination occurs when a policy applies equally to all individuals but would put those sharing a protected characteristic at a particular disadvantage compared to those who do not. The measures will overwhelmingly benefit most offenders through the introduction or reduction of rehabilitation periods for their convictions. With respect to those offenders who do not benefit from the measures, namely those offenders convicted and sentenced to more than 4 years for serious offences, our initial assessment is that the change is not indirectly discriminatory within the meaning of the Equality Act as explained below.

Males, younger people (18-24) and those aged over 50 are overrepresented in relation to the most serious sexual and violent offences. For those offenders given a sentence of over 4 years (and again males are overrepresented by sentence length), the proposed changes will not apply to them, and their conviction will continue not to be subject to a rehabilitation period. Our assessment is that excluding those convicted of sexual, violent or terrorist offences is a proportionate means of achieving the legitimate aim of ensuring that the nature and seriousness of these offences means that they should continue to be disclosed. This will preserve the status quo for victims of serious sexual and violent crime and their existing confidence in the administration of justice. Overall, therefore, we do not consider that the policy change is likely to result in any unlawful indirect discrimination.

Discrimination arising from disability and duty to make reasonable adjustments

The measures in the Bill will apply equally to everyone regardless of any personal characteristics. We do not consider that any adjustments are required for disabled people over and above the ones already in place in place to provide support in looking for employment.

Harassment and victimisation

We do not consider there to be a risk of harassment or victimisation within the meaning of the Equality Act as a result of this change. In particular, because fewer criminal records will be disclosed to employers as a result of these changes than would otherwise be the case.

7. Advancing equality of opportunity

Consideration has been given to how these measures impact on the duty to have due regard to the need to advance equality of opportunity by meeting the needs of people with criminal records who share a protected characteristic, where those needs are different from the need of those who do not share that protected characteristic. This policy will be for those affected, whether they share a protected characteristic or not.

8. Fostering good relations

This policy is not a means to foster good relations between people who share a protected characteristic, as the disclosure of criminal records is a matter between the individual and their employer or prospective employer.

9. Continuing analysis

The equality duty is an ongoing duty and we will continue to monitor and review this change for any potential impacts on persons with protected characteristics.

We will also consider the equality duty going forward in our wider work to reduce reoffending, focusing on accommodation, employment and substance misuse in particular. Further proposals in this space will include relevant equality statements.

10. Affected groups

The proposed change will have a direct impact on those who have received community orders and those offenders who have:

a. Received a custodial sentence of up to and including 4 years for any offence, or,

b. Received a custodial sentence of over 4 years (but not for Schedule 18 offences).

The measures in the Bill will apply equally to anyone applying for a job in England and Wales, regardless of their ethnic background, gender, age or any other personal characteristic. Nonetheless, as persons from minority ethnic backgrounds are overrepresented amongst the prison population, the benefits of the policy - namely the introduction of rehabilitation periods where none existed before or reduction in existing periods - will tend to have a disproportionately positive impact on individuals from those backgrounds.

10.1 Sex

Our data shows that there is a slightly higher proportion of females sentenced to a standard determinate sentence (SDS) of up to and including 4 years (8%) compared to over 4 years (4%). Females would receive the greater positive impact when in scope of the policy for under 4 years, compared to the other side of the policy covering over 4 years for offences in scope or those not in scope due to offence type (4%). Males who are eligible for the policy would also be positively impacted. The higher proportion of females in scope is due to the type of offences that males and females typically commit. The proportions of those sentenced to over 4 years in prison for offences not on the Schedule 18 list (in scope) is the same as for those who are sentenced for the same lengths but for Schedule 18 offences (not in scope), at 96% male and 4% female.

Sex	In scope (up to and including 4 years all offences)	In scope (over 4 years, not Schedule-18 offences)	Not in scope over 4 years (Sch 18, terror)
Male	92%	96%	96%
Female	8%	4%	4%

10.2 Ethnicity

There is evidence of over-representation of people from minority ethnic backgrounds in the criminal justice system. For those sentenced to an SDS of 4 years or less for all offences, there is a higher proportion of White people sentenced (80%) than:

• those sentenced to over 4 years for offences who are not excluded from the policy (61%); and
• those sentenced to over 4 years but not in scope due to the offences for which they were sentenced (72%).

BAME individuals in receipt of an SDS of over 4 years for applicable offences are likely to be more impacted than those either sentenced to under 4 years or not in scope. The possible exceptions are individuals who are “Chinese and other” or of mixed race, for whom the differences between the categories are small to zero.

Ethnicity (where known)	In scope (up to and including 4 years all offences)	In scope (over 4 years, not Schedule-18 offences)	Not in scope over 4 years (Sch 18, terror)
White	80%	61%	72%
Black	10%	20%	14%
Asian	6%	12%	8%
Mixed	3%	5%	3%
Chinese and other	2%	2%	2%

10.3 Age

There are different sentencing regimes in place for adults and children. The Criminal Justice System of England and Wales recognises that individuals who are under 18 years old at the point of conviction should be treated differently to adults and this is reflected in reduced ROA rehabilitation periods for childhood criminal records. Since custody is a last resort for children and they rarely receive a sentence of over 4 years for an offence that is not a serious violent, sexual and terrorist offence, only a small number of people who were convicted as a child are likely to be affected by the policy. Indeed, the number of children (aged 12-17) was very small in the eligible group over the time period considered.

Age range	In scope (up to and including 4 years all offences)	In scope (over 4 years, not Schedule-18 offences)	Not in scope over 4 years (Sch 18, terror)
12 to 17	0%	-	2%
18 to 24	19%	17%	24%
25 to 29	19%	21%	18%
30 to 39	35%	33%	27%
40 to 49	18%	17%	14%
Over 50	9%	12%	15%

Among those individuals sentenced to an SDS, the most common age group was 30-39 year olds: 35% were aged 30-39 and in scope of the policy as they were sentenced to 4 years or less for any offence; and 33% to over 4 years for an eligible offence, which is a higher proportion compared to those not in scope due to receiving a sentence of over 4 years for an eligible offence (27%). Apart from children, those aged 50 or over would be the least impacted.

10.4 Disability

The disclosure regime applies equally to anyone applying for a job in England and Wales, based on the role they are applying for, regardless of any personal characteristic.

1. Analysis of the impact of employment on re-offending following release from custody, using Propensity Score Matching, Ministry of Justice ↩

2. YouGov/DWP survey results ↩

3. Please note that this information was correct at the time of drafting. The next report will be published on 26 November 2020 on the Women and the criminal justice system page. ↩

4. The Race and Women publications are published biennially (alternating with one another) every November, although equalities data is available every May from the CJSQ. ↩