I know I’m getting ahead of myself here given where I am in the process however I’ve read a number of forum posts and articles on both Unlock, Narco and elsewhere on disclosure of unspent convictions and the Rehabilitation of Offenders Act and was a bit curious about it all.

Everywhere I’ve read says you “legally have to disclose unspent convictions if asked” (and spent ones for certain roles that require a standard or enhanced DBS check) and all mention the ROA 1974 act (and it’s subsequent updates).  I took some time and read the ROA act and could not find anywhere that says ‘you must disclose unspent convictions’.  In fact the word ‘unspent’ does not appear in the text at all. Nb I did not read through schedule 1 Service disciplinary convictions (relates to army, air force, navy and armed forces acts), schedule 2 Protection for spent cautions or schedule 3 Protection for spent alternatives to prosecution Scotland.

The act itself appears to simply be about rehabilitation periods (e.g. when an offence is considered spent) and that any relevant person disclosing a spent conviction is guilty of an offence.

I may be missing something completely obvious or there may be another law somewhere which means that you do have to legally disclose (although I couldn’t find one when I did search). The only information I could find that doesn’t state you have to legally disclose is on the Open University website (https://help.open.ac.uk/disclosing-a-criminal-record-when-applying-for-jobs) which under the heading “If asked, why should you consider declaring your criminal record?” says “This is essentially down to honesty, transparency and trust. You’ll only need to declare your record if an employer asks you, but if you fail tell the truth about your record when asked and your employer learns about it at a later date, you’re at risk of losing your job and potentially being prosecuted.
Furthermore, if you’re on licence at the time and fail to disclose information to the employer, you may be recalled back to prison.”

If I haven’t missed anything and putting aside police/probation forced disclosures and potentially those on license (I don’t know what the law – if any – or license and/or notification conditions say about this) it would seem that there is not actually a legal requirement to disclose. It seems that it’s basically an honesty thing and if you don’t disclose and are subsequently found it you could be dismissed (at least for the first 2 years – after which you have much more rights/protections as an employee).

• Obviously if you say no (and have unspent convictions) and then the (potential) employer does a basic DBS check then you are found out.
• If they don’t do a check however or if you refuse permission for them to do a check then it doesn’t seem based on what I’ve read that it’s a problem legally. I realise that the employer may not trust you at the point they found out as you haven’t told the truth.
• If however you say no record and no you cannot do a DBS check and can successfully argue that you don’t believe in DBS checks e.g. my ability to do the job/have the job offered are not dependant on a criminal record should I have one. Or Why does it matter if I have a criminal record when given that I’m not in prison means that the law has said I’m safe to be in society and that if it was a specific regulated role applied for (financial, vulnerable adults, children, police etc) then you’d be doing a standard, enhanced or barred lists check. Or I have a family member who has a criminal record and I know how hard it is for them to get work when they are asked to do a DBS check which is why I don’t believe in them.

If you do refuse to give permission for a check then it’s likely possible that you won’t be offered the role or that any offer is withdrawn of course. However if you can successfully argue that the role really doesn’t require a check or the reasons why you don’t believe in such checks yet your skills and experience clearly met/exceed the role requirements then potentially you have a job while not disclosing.

Obviously, I could be missing something altogether here and I’m not advocating for anyone to lie on a job application but rather more interested in what the actual legal position is regarding disclosure.  Also interested to hear if anyone has gone down the route of saying no to the box and what happened afterwards (good or bad).