You go to court, you fight hard to keep your clients out of gaol or at least to keep the sentence as short as possible. All goes well and then, often almost as an after-thought a keen prosecutor or a zealous judge decides to impose some additional order designed to prevent re-offending; a restraining order perhaps or, as is these days almost de rigeur in sexual cases, despite the wise warning of the Court of Appeal in Smith, a sexual offences prevention order (“SOPO”).
You are a conscientious advocate and you will, of course, scrutinise the terms of the order carefully and make sure that everything is as clear and reasonable as possible. However, what tends to happen in practice is that your client assures you he has no intention of going round to his ex-girlfriend’s flat, or of going to swimming pools with children or whatever the order forbids him from doing. Its terms are readily agreed, or there may be a little desultory argument about some part of it. What very seldom happens is any serious argument about its duration. The attitude all too often seems to be “who cares, I’m not going to breach it so it doesn’t really matter how long it lasts.”
In fact, nothing could be further from the truth. If the defendant is not going to breach the order then how long it lasts is the only thing that matters, and it may matter a great deal. In fact, the duration of a preventative order of this sort is often of far greater long term importance than the length of the prison sentence. This is because while such an order is in existence the defendant cannot become a “rehabilitated person” under the Rehabilitation of Offenders Act 1974.
More and more employers now demand a criminal record check before confirming job offers. As a result criminal convictions, sometimes even quite minor ones, are becoming an ever more impenetrable barrier to the employment of ex cons.
It was perhaps partly for that reason that the Legal Aid Sentencing and Punishment of Offenders Act 2012, important parts of which were brought into effect in March of this year, amended the 1975 Rehabilitation of Offenders Act (ROA) by dramatically cutting the length of many rehabilitation periods.
For example, the rehabilitation period for an adult receiving a sentence of 6 months imprisonment was seven years. Now it is just two years form the completion of the sentence.
The rehabilitation period for a fine was five years: now it is 12 months from the date of conviction.
Let’s take a typical case of a man aged 21 who pleads guilty to assault occasioning actual bodily harm on his ex-girlfriend. The offence is comparatively minor and he receives a community order. If that were the extent of his sentence his conviction would now be spent 12 months after the completion of the community order. However, if the court decided to impose a restraining order in addition to the community order then under S.5 (2) of the ROA, as now amended, the conviction would remain unspent as long as the restraining order remained in effect.
The Act provides that “a relevant order” is not spent until “the last day on which the order is to have effect.” If, as happens far too often, the judge makes the order indefinite then the conviction may in fact never be spent.
What is a “relevant order”? It is defined in the new S.5 (8) (g) as:
“any order which imposes a disqualification, disability, prohibition or other penalty and is not otherwise dealt with in the Table or under subsection (3), but does not include a reparation order under S.73 of the Powers of Criminal Courts (Sentencing) Act 2000.”
This is a very wide definition and includes many orders which may seem of comparatively trivial importance at the time they are made. They are far too numerous to list in full but include, for example, Sexual Offences Prevention Orders under the Sexual Offences Act 2003, Anti-Social Behaviour Orders under the Crime and Disorder Act 1997, Restraining Orders under S.5 of the Protection from Harassment Act 1997, Football Banning Orders under S.14A of the Football Spectators Act 1989, Travel Restriction Orders under the Criminal Justice and Police Act 2001 and many others.
The problem is not a new one. It existed under ROA as originally enacted. However, with the general reduction in rehabilitation periods as well as the vogue for preventative orders it has now become far more acute.
When courts impose such orders it is therefore important that they are made aware that if they are unduly lengthy they will have a damaging effect on the defendant’s future prospects of employment. If they stop ex-offenders getting jobs, then far from preventing crime, lengthy preventative orders will have the opposite effect.