I am considering two guest blogs at the moment – both happen to be about fox hunting but similar issues arise as those described below about other wildlife crimes (such as against birds of prey).
When people write about illegal fox hunting they tend to want to give examples where ‘huntspeople’ have been convicted of crimes – generally speaking, this has to be a good thing as otherwise readers would ask why, if illegality is common, no examples are given. But sometimes these examples are a while ago.
The Rehabilitation of Offenders Act 1974 covers the period after which convictions are regarded as being ‘spent‘. After a period, depending on the severity of the conviction, a conviction can essentially be ignored and should not prejudice, for example, the job prospects of the individual concerned.
So can the media, including this blog, report convictions which are spent? As I understand it, from this very clear (and I’m guessing accurate) account, I should not mention spent convictions here although the chances of anything very awful happening to me or my guest bloggers is rather low (but that isn’t really the point, is it?).
Here is an excerpt from that website;
What are the rules on reporting spent convictions?
The publication of ‘spent’ convictions by the media can breach the provisions of the 1974 Rehabilitation of Offenders Act (ROA). Under the ROA, your conviction becomes spent at the end of a specified ‘rehabilitation period’ (so long as you have not been given any further convictions during this time). To calculate when your conviction will become spent, you can visit www.disclosurecalculator.org.uk or find out about other ways here.
The length of this period varies depending on the length of the sentence. However, if the prison term is more than four years (both immediate and suspended), or was an extended sentence for public protection, then the conviction will never become spent.
Under the ROA, when a conviction has become spent, it is as though, for most purposes, it has never occurred. You are not obliged to disclose a spent conviction, and you should not be prejudiced as a result of one. This means that in law, for a media organisation to report your spent conviction amounts to an untruth, meaning that they are open to accusations of defamation.
It is not a criminal offence to report a spent conviction, so the ROA does not impose a criminal penalty on journalists or media organisations who do so. As a result of the ROA, technically, anybody reading about the spent conviction shouldn’t use that information in a way that disadvantages you in any way. Of course, this is difficult to prove, and even if you could prove it, there is little you can do.
http://hub.unlock.org.uk/knowledgebase/reporting-criminal-records-media/
So, I’m going to use that as guidance. This means that I am going to ask guest bloggers here to take account of this advice.
It is a bit odd though. I could take you to many places, many of them on BBC websites, where individuals’ convictions were reported in the media (perfectly correctly) at the time of the case, and remain on websites many years after those convictions are spent. That seems a bit odd and means that if the identity of a convicted offender is anonymised in one account, a quick internet search can often disclose all the details of the case and of the offender (whose conviction is spent) on another site. Is that how the law is supposed to work?
It also seems that it is easier to give details of a case where something happened and no-one was convicted than to mention a similar case where someone was convicted.
Has anyone got any wise thoughts on this matter?
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interesting – thanks Mark.
So these rules would also apply to other organisations – for example the Countryside Alliance who never miss an opportunity to mention the criminal records of animal rights protestors, sometimes decades after the act.
I had a look at the time period after which a conviction would be spent. If someone was convicted of aggravated trespass and given a 12 month conditional discharge (not uncommon for eg hunt saboteurs or environmental protestors), the conviction would be spent when the conditional discharge period ended.
If say, (I know it will never happen while the Tories are in power), there is a conviction given to a high-ranking police officer; a judge; an aristocrat or even a sitting MP; I would hope they never live it down.
Unfortunately, while a pleb who digs out the foxes might get a small fine; the organisers go scot free.
Same with shooting. As long as the above patronise these shoots NOTHING will happen.
Nothing wise to add I’m afraid but as one of your guest bloggers struggling with this I offer this thought.
I want to be able to make the point that the police ignoring the law repeatedly in one area (hunting) can potentially lead to problems with other more serious offences -because people naturally feel they can get away with things if that has been their experience. So I want to say that a huntsman did x and y and got away with it, and then he later did z which is very much more serious. And I wonder if he would have done z if he had been properly held to account for doing x and y. I get that I can’t use names and other specific details if the conviction is spent but I’d still want to be able to make the general point. And, as you say, if the case is still easy to find online (with the name included) then I would have thought that was entirely reasonable.
My line of thinking will be clearer to you when I send you the amended piece!
I also tend to agree with Miles in that I’m influenced by the way others behave and respond accordingly – perhaps pushing the boundaries a little more if others routinely behave the same way with apparently no sanctions.
As you say, the point is not that something bad might happen to you or the blogger but rather that the law has deemed that once an offender has paid the penalty they should not suffer further consequences as a result of their conviction. I think that is a just position to take – it seems wrong that an action taken in youth (say) should hang round someone’s neck for the rest of their life. The ability to draw a line under a previous offence is likely to be a factor in helping people steer away from crime given that a criminal record limits employment opportunity. Clearly this should be and is balanced by the need to know if an individual continues to pose a threat to society, hence the longer rehabilitation period for more serious crimes and the existence of such things as the sexual offenders register. I would therefore suggest that irrespective of any potential legal threat to you or your guest bloggers, the right thing to do is to avoid referring to spent offences other than anonymously. I would argue that the CA and others should apply the same approach but if they do not I don’t think that one is obliged to sink to their level.
If the intention of referral to someone’s past conviction is to prejudice the reader against them then it probably works. It’s lazy but easy especially if evidence is lacking or just for the purpose of raising prejudice. The Law works in mysterious ways its asinine wonders to perform but one of its better rules IMHO is that previous convictions are not allowed to be mentioned in a trial until after the verdict is delivered.
The difficulty is that two wrongs never make a right.
The only real solution is, wherever possible, to be aware of the law, and keep within it.
Even better, keep within the Law, and let everyone know that is your position, perhaps reminding readers as you do so of the possible offences which others could be committing, and that you are making strenuous efforts to avoid. No harm to give examples.
Mark may in the end leave it to guest bloggers and merely ask them to conform, but that leaves him at a small risk, because the level of tolerance for him may be less than that of others, due to the present political climate.
“be aware of the law, and keep within it.”
That may be easier to say than do – I just read the links above.
I can’t help but wonder why ICO haven’t weaseled themselves into the ambit of ROA – it would be a guaranteed income stream. Give them time …
An aspect which the guidance you quote omits is that a pretty extensive list of occupations require standard or enhanced checks in which even ‘spent’ convictions under ROA must be disclosed. So you could say they are not, in ordinary language, treated as spent at all. This can come as a surprise sometimes, especially as regards police cautions which ROA treats as ‘spent’ from the outset. But they still show up on standard and enhanced checks and can lead to people lawfully being declined jobs despite the impediment being only a caution and spent.
A slightly odd consequence of this is that asking whether a conviction is spent (beyond the narrower ROA definition) is a bit like asking if Schroedinger’s cat is dead. You don’t know until you open the box or, as the case may be, apply for a job. Arguably, this could mean that media discussion of a spent conviction could be context sensitive, depending on whether the story has anything to do with employment or other areas of responsibility where standard or enhanced checks apply.
Whatever, the line you propose to take seems both prudent and humane, in line with the original intentions of the Act, even if you could still allow the possibility of coming across a case where you felt justified in taking a different line.