What are the reporting restrictions on spent convictions?

What is the Rehabilitation of Offenders Act 1974?

Convictions become spent at the end of the rehabilitation period, according to the Rehabilitation of Offenders Act 1974. The length of this period varies depending on the length of the sentence; however, if the jail term is more than two and a half years (both immediate and suspended) then the conviction will never become spent. This includes youth custody, corrective training and detention in a young offender institution. Similarly, an extended sentence for public protection after a violent or sexual offence, can never become spent.

The Act enables most other past offenders to ‘live down’ any less serious sentences. For example, they do not have to declare ‘spent’ convictions on most job applications except for working with children and a few other examples.

How does it affect reporting?

In terms of the media, the Act limits a journalist’s defences in the result of a libel claim in which a reference to a ‘spent’ conviction is made in the media. On the other hand, the claimant in the case must prove that there was no good reason for the publication of this material or malice on the part of the particular journalist.

Can the justification defence be used?

One such defence of a media organisation being sued for libel would usually be that of justification. This just means that the report of the claimant’s conviction was in fact true. A media organisation can use a court record to prove the existence of a conviction and thus justify the publication of the material.

However, under this Act the defence fails if the claimant proves that the conviction was indeed spent and if the arguments about malicious intentions above apply. This would mean that there was no public interest in referring to the conviction.

The established principle that truth is a complete defence in a defamation case was thus made not to apply in this instance by the 1974 Act. The aim was to stop ‘spent’ convictions being published in the media when there was no good reason to prevent past offenders from remaining fully rehabilitated.

Can the defences of absolute or qualified privilege and fair comment be used?

Other defences that are used by a media organisation are the defences of absolute or qualified privilege. However, these cannot be used if the organisation has published a reference made in a court case to a spent conviction and if the conviction was held to be inadmissable in evidence.

For instance, qualified privilege would usually protect reports of court cases if the particular example meets the defence’s requirements. Reference to a conviction is classed in this way as it is effectively a report of a court case in which either the offender pleaded guilty or was convicted by a magistrate or jury. Qualified privilege is also used as a defence to protect the quotation of words from the case.

The libel defence of fair comment could also be used even if the conviction was spent and if the requirements of this defence were met. This defence relates to opinions that have been expressed about the claimant on the fact of the conviction in question.

Comments can be published safely if they are in the public interest e.g. about a politician or other public figure and are honestly held opinions. One instance of this is an editorial comment column making reference to a past conviction. The fair comment defence would also apply if a media organisation simply published details of the conviction in this context thereby creating an inference as to how the past offender should be viewed.

Proof of malice destroys all the above defences of justification, privilege and fair comment. In this case, the claimant suing the media organisation would win the libel case and be paid damages for the effect the reference to the conviction has had on his/ her reputation.

However, in reality most news journalism does serve some kind of public interest by making revelations about past convictions, including ‘spent’ convictions, and there is no malice. So, the media can publish the details of, and comments, on ‘spent’ convictions without fear of libel law suits and the consequences in terms of paying damages if the case was lost.

What are the reporting restrictions for ‘spent’ convictions in court proceedings?

In terms of civil proceedings, a witness giving evidence should not have to provide any information on spent convictions.

Nonetheless, in terms of later criminal proceedings, if a rehabilitated offender is in a criminal court then he/she may be asked questions about spent convictions.

Absolute or qualified privilege applies to media reporting of a ‘spent’ conviction as referred to in later a criminal court case but this is unless the court ruled that the conviction was inadmissible, as described above.

The judge in a criminal court is aware that if this can be avoided, then ‘spent’ convictions should only be mentioned when necessary and relevant. It is general practice to ask for the judge’s permission before referring to a ‘spent’ conviction in open court.

What are the criminal penalties relating to reports of ‘spent’ convictions?

It is not a criminal offence to mention a ‘spent’ conviction so the 1974 Act does not impose a criminal penalty on either individual journalists or media organisations. Alternatively, it is an offence for a civil servant to reveal details of ‘spent’ convictions except in the course of their official duties. It is also a criminal offence to obtain information about ‘spent’ convictions from official records by fraud, dishonesty or bribery. 

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.