24 May 2013

What is a protected conviction/caution?

If an employer asks a job applicant about their criminal record – the job applicant must disclose any spent convictions/cautions if they are applying for a certain job (e.g. a nurse). However, from 29 May 2013, a job applicant will not be required to disclose a protected conviction/caution. Hence, a job application form should notify a job applicant that they are not required to disclose a protected conviction/caution.

Protected conviction


A protected conviction is a conviction where:
  • Five years and six months or more have passed since the date of the conviction if the job applicant was under 18 years at the time of the conviction, or
  • 11 years or more have passed since the date of the conviction if the job applicant was 18 years or over at the time of the conviction, and
  • The job applicant was not convicted for an offence listed in art. 2A(5) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (e.g. cruelty to children).
  • The job applicant did not serve a custodial sentence or sentence of service detention in respect of the conviction.
  • The job applicant has not been convicted of any other offence at any time.

Protected caution

A protected caution is a caution where:
  • Two years or more have passed since the date on which the caution was given if the job applicant was under 18 years at the time the caution was given, or
  • Six years or more have passed since the date on which the caution was given if the job applicant was 18 years or over at the time the caution was given, and
  • The caution was not given for an offence listed in art. 2A(5) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (e.g. cruelty to children).
Source: Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 [SI 2013/1198].

Comment

The amendments to the the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 is the Government's response to the Court of Appeal's judgment in T v Chief Constable of Greater Manchester [2013] EWCA Civ 15.

On 27 March 2013, the Disclosure and Barring Service announced that a Criminal Record Certificate will not disclose a protected conviction/caution.