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Article
Mind the gap:
Sentencing, rehabilitation
and civic purgatory
Andrew Henley
Keele University, UK
Abstract
This article discusses the relationships and tensions between the sentencing, statutory
supervision and legal rehabilitation of lawbreakers under UK legislation. It does so
with reference to both the Rehabilitation of Offenders Act 1974, which allows some
criminal records to become ‘spent’ after a set period of time, and the Offender
Rehabilitation Act 2014, which was designed to significantly expand statutory
supervision arrangements. The article also demonstrates how, post-supervision, many
former lawbreakers are cast into a state of ‘civic purgatory’, before suggesting that a
more fully integrated approach to rehabilitation is required.
Keywords
criminal records, legal rehabilitation, stigma, discrimination, statutory supervision
Introduction
In sentencing convicted lawbreakers, courts in England and Wales are required to
give due consideration to five distinct objectives (Sentencing Council, 2017). These
include: punishing the offender; reducing crime; protecting the public; making the
offender ‘give something back’; and reforming and rehabilitating the offender. This
latter, and perhaps most elusive, objective is defined as ‘changing an offender’s
behaviour to prevent future crime for example by requiring an offender to have
Corresponding Author:
Andrew Henley, University of Nottingham, School of Sociology and Social Policy, University
Park,Nottingham, NG7 2RD, UK.
Email: andrew.henley@nottingham.ac.uk
Probation Journal
2018, Vol. 65(3) 285–301
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0264550518776773
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The Journal of Community and Criminal Justice
treatment for drug addiction or alcohol abuse’ (Sentencing Council, 2017). How-
ever, this definition arguably over-simplifies what is, in reality, a much more com-
plex and nuanced penological objective. Indeed, ‘rehabilitation’ in the criminal
justice context is rather a catch-all term for a number of desired outcomes which are
themselves often guided by distinct philosophical principles (for a discussion see
Brooks, 2012: 51–63; Canton, 2017: 102–24).
In addition to the concept of ‘natural rehabilitation’ (or natural desistance),
whereby some individuals spontaneously cease their law-breaking behaviour and
effectively ‘grow out’ of criminality (see Laub and Sampson, 2001, 2003), McNeill
(2012) describes four distinct forms of rehabilitation. Psychological rehabilitation,
he argues ‘is principally concerned with promoting positive individual-level change
in the offender’ (p. 27). It provides the rationale for including therapeutic inter-
ventions and ‘offending-behaviour courses’ as part of a sentence and therefore
comes closest to the idea of somehow ‘changing’ lawbreakers (through interven-
tion) conveyed by the Sentencing Council’s (2017) definition. Moral rehabilitation
conveys the notion that a lawbreaker must ‘pay back their debt to society’ in some
way before being able to trade up to a restored social position as a citizen of good
character (McNeill and Maruna, 2010 ). Whilst this ‘paying back’ is achieved
partly through the suffering of ‘unpleasant consequences’ (Lacey, 1988) or ‘hard
treatment’ (Duff, 2001), notions of restorative justice and ‘reintegrative shaming’
may also contribute towards the idea of some sort of moral redemption being
achieved (Braithwaite, 1989, 2002). Social rehabilitation, particularly in European
jurisdictions, involves both the restoration of a lawbreaker’s social status and also
their access to the personal and social means to do so (Van Zyl Smit and Snacken,
2010 ). However, this concept also involves ‘the informal social recognition and
acceptance of the reformed ex-offender’ (McNeill, 2012: 15) which, ‘rather than
the advancement of the “science” of personal reform, is perhaps the ultimate
problem for rehabilitation in practice’ (McNeill, 2012: 15).
The difficulties of advancing the social rehabilitation of lawbreakers are linked
to the inherently stigmatising nature of criminal justice processes based not merely
on retribution but on the censure or condemnation of lawbreakers in the public
forumofthecourtroom(VonHirsch,1993;Duff,2001).Indeed,asdiscussed
elsewhere, processes of criminalisation and moral stigmatisation can give rise to a
form of ‘civil and social death’ (Henley, 2014, 2017a, 2018; see also Earle,
2016 ). It is for this reason, despite being relatively neglected in the rehabilitation
literature, that the question of legal or judicial rehabilitation is of such importance
given its concern for ‘when, how and to what extent a criminal record and the
stigma that it represents can ever be set aside, sealed or surpassed’ (McNeill,
2012: 27). Legal rehabilitation is concerned with preventing or mitigating pos-
sible discrimination against former lawbreakers after they have paid the legal
penalty for their crime. It is important because it says something definitive about
the nature of the relationship between the state, its laws, society and the extent to
which former lawbreakers are recognised as ‘citizens’ of equal merit after they
have endured punishment.
286 Probation Journal 65(3)
Legal rehabilitation can thus be said to underpin social rehabilitation, provide
formal recognition of moral rehabilitation, and yet be distinct from psychological
rehabilitation. The distinction between legal and psychological forms is precisely
what makes McNeill’s (2012) model so valuable in helping us to avoid under-
standing rehabilitation as only ever being about the ‘correction’ of lawbreakers to
socially desirable behavioural norms. That is, as being concerned merely with what
Foucault (1977) once dubbed ‘moral orthopaedics’ (p. 10), involving ‘an assess-
ment of normality and a technical prescription for a possible normalization’ (p. 21).
Indeed, as Carlen has argued, ‘if the concept of “rehabilitation” had remained
focused solely upon the formal removal of criminal stigma, it would not have
become so difficult to define’ (2013: 92).
In this article I demonstrate how, and to some extent why, the distinct rehabili-
tative forms discussed by McNeill (2012) are not currently given parity in two key
pieces of legislation which provide for the reform and rehabilitation of lawbreakers
in England and Wales, with particular emphasis on those sentenced to custody. I do
this by, firstly, describing the provisions of both the Rehabilitation of Offenders Act
1974 (which determines when and how legal rehabilitation takes place) and the
Offender Rehabilitation Act 2014 (which was, in theory at least, designed to reduce
re-offending and promote the social and psychological rehabilitation of law-
breakers by expanding post-custody supervision in the community). Secondly, I
provide an analysis of the ‘gaps’ which exist for various custodial sentences
between the achievement of legal rehabilitation under the 1974 Act and the com-
pletion of statutory supervision periods aimed at ‘the rehabilitation of offenders’
under the 2014 Act. Thirdly, I discuss the problems which can arise from the period
of ‘civic purgatory’ endured by those who have completed their sentences but who
have not yet been designated as ‘rehabilitated persons’ in law. I conclude by
arguing that greater parity between individual-level attempts to reform lawbreakers
and the formal recognition of successful reform is required in order to maintain both
the legitimacy of supervision arrangements from the perspective of those subjected
to them and also public confidence in the efficacy of such arrangements to reduce
re-offending.
Rehabilitation: A play in two Acts (with a 40 year interval)
As explained above, legal rehabilitation involves setting aside, sealing, or expun-
ging altogether a person’s criminal record. The aim of doing so is to mitigate the
social stigma which might result from a previous conviction and to formally
acknowledge that an individual has duly completed their sentence and gone on to
live a crime-free life. In some jurisdictions such as France, this can be achieved
through a formal judicial hearing at which desistance is officially acknowledged
(Herzog-Evans, 2011). Indeed, people with convictions in France can apply for
‘judicial rehabilitation’ relatively quickly, in some cases only one year after sen-
tencing (Stacey, 2015). More commonly, however, legal rehabilitation occurs
through an automatic process after a conviction-free period.
Henley 287
The Rehabilitation of Offenders Act 1974
Following the recommendations of a joint working party on ‘the problem of old
convictions’ (Justice, 1972), the Rehabilitation of Offenders Act 1974 (ROA)
introduced a process of dealing with old criminal records which renders them
‘spent’ after a set period of time (Breed, 1987; Mears, 2008; Henley, 2017b).
After this period has passed without any further convictions, a former lawbreaker
becomes a ‘rehabilitated person’ in law. In effect, this removes the burden of dis-
closure of a spent conviction from former lawbreakers for most purposes. It also
means that a spent conviction is not a lawful ground for treating a rehabilitated
person less favourably, for instance, following an application for employment, or for
a financial service such as insurance. Following amendments in Section 139 of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the reha-
bilitation periods in the ROA were reduced in length and the protections of the Act
extended to include those sentenced to terms of imprisonment up to and including
four years (see Table 1). Prior to this, the Act had only applied to those sentenced to
30 months or less.
The amendments to rehabilitation periods followed earlier criticisms of the ROA
in the Home Office (2002) report Breaking the Circle: A Report of the Review of the
Rehabilitation of Offenders Act. This report suggested that the Act was ‘no longer
considered to be wholly effective’, that it was ‘not achieving the right balance
between resettlement and protection’, and that it was ‘confusing’, lacking in ‘pro-
portionality and clarity’ and ‘failing to achieve the protection for ex-offenders’
which had originally been aspired to (pp. 5–6). Whilst the limited amendments
eventually introduced by the LASPO Act did not go nearly as far as those recom-
mended by this report a decade earlier (it had advocated including all determinate
sentenced prisoners), the campaigning work of organisations such as Unlock (the
Table 1. Rehabilitation periods under the Rehabilitation of Offenders Act 1974 (as amended)
for selected sentences/disposals.
Sentence/disposal Rehabilitation period
Absolute discharge Spent immediately
Fine One year from point of
imposition
Community order The length of the order plus
one year
Prison sentence up to six months Length of sentence plus two
years
Prison sentence between six and 30 months Length of sentence plus four
years
Prison sentence between 30 and 48 months Length of sentence plus
seven years
Indeterminate, extended determinate sentences and prison
sentences over 48 months
Never spent
288 Probation Journal 65(3)
charity for people with convictions) has kept ROA reform on the agenda and
ensured that at least some progress has been made in reducing the burden of
disclosure.
1
A number of fundamental issues with the ROA remain, however. Firstly, many
exemptions to the principle of a ‘spent conviction’ have been made – particularly in
the area of employment – through both the Rehabilitation of Offenders Act
(Exceptions) Order 1975 and its subsequent expansion. Such exemptions are not
only restricted to occupations which involve working with children and vulnerable
adults (e.g. in education, training and healthcare settings). Instead, the current list of
exempted professions includes: veterinary practitioners; employment concerned
with healthcare; traffic wardens; locksmiths; certain professions in the financial
sector; drivers of private hire vehicles like taxis; those involved in the administration
of justice; and employment in the private security industry (see Thomas, 2007: 98–
100 ). For such occupations ‘standard’ and ‘enhanced’ criminal records checks
conducted by the Disclosure and Barring Service (DBS) are available which reveal
both unspent and spent convictions to prospective employers (as well as a host of
‘non-conviction’ information in the case of enhanced checks; see Larrauri, 2014a).
This potentially restricts people with convictions to an increasingly narrow range of
possible occupations.
Secondly, the ‘spent model’ of dealing with old criminal records requires people
with convictions to tell a ‘legal lie’ about their past after a set period of time. That is,
to answer ‘no’ to any question about whether they have a criminal record if it has
become spent under the ROA, rather than prohibiting employers, insurers and
others from asking such a question in the first place or restricting such questions to
only those offences which might be deemed to have a ‘close nexus’ with the pur-
poses of the enquiry (for instance, motoring offences and applications for driving
jobs or car insurance; see Larrauri, 2014b).
Thirdly, the ‘spent model’ renders the legal rehabilitation of former lawbreakers a
‘passive’ rather than an ‘active’ process (see Maruna, 2011). That is, rather than
having any progress made since the end of a sentence recognized in law when
desistance from offending actually occurs, or when the sentence plan and any
rehabilitative interventions have been completed, a person with convictions simply
has to wait for an extended period of time to be officially recognised as a ‘reha-
bilitated person’. There would, for example, be no distinction made between two
individuals serving two year custodial sentences where one complied fully with all
requirements of their sentence and any supervision period, and another refused to
engage with their sentence planning and was recalled almost immediately to cus-
tody due to a breach of licence conditions. Under the ROA both would achieve
legal rehabilitation at the same time if no further convictions were acquired because
‘rehabilitation periods’ are calculated from the sentence expiry date rather than
point of release from custody. Therefore, in the above example, the compliant
individual would face potential discrimination in the community for longer than the
individual who served nearly their whole sentence in custody.
The issue of former lawbreakers having to passively wait for legal rehabilitation
to occur can be likened to a sort of ‘civic purgatory’ whereby a person may have
Henley 289
served their sentence in full, but are not yet regarded as being entitled to equitable
treatment with other citizens (Henley, 2017a, 2018). Indeed, as Larrauri (2014b)
has noted, the ‘spent model’ of dealing with previous convictions accepts far too
readily that people with convictions will be discriminated against whilst they wait for
their conviction to become spent. That is, people are most vulnerable to discrimi-
nation during the key period when they may be attempting to desist from offending.
Additionally, there is the issue that the ROA never allows any conviction resulting in
a sentence of more than four years imprisonment, or any indeterminate prison term,
to become spent regardless of future conduct.
2
In its green paper Breaking the Cycle: Effective Punishment, Rehabilitation and
Sentencing of Offenders (Ministry of Justice, 2010) the Conservative-Liberal
Democrat coalition government acknowledged many of the issues with the UK’s
current approach to criminal records. However, despite claiming to ‘want to reduce
unnecessary obstacles to successful rehabilitation’ (p. 33) and inviting ‘ideas for
more radical reform of the Rehabilitation of Offenders Act’ (p. 34), the government
ultimately failed to address the fundamental problems with the ‘spent model’ of
convictions outlined above. Instead, as already discussed, they merely revised
rehabilitation periods in the existing ROA, resulting in the periods shown in Table 1.
Whilst these shortened the waiting time required to achieve legal rehabilitation in
most cases, they retained the idea that certain individuals could never be legally
rehabilitated. These amendments took effect on 10 March 2014, just three days
before the Royal Assent of another piece of legislation which was ostensibly con-
cerned with furthering the cause of rehabilitating lawbreakers.
The Offender Rehabilitation Act 2014
The Offender Rehabilitation Act 2014 (ORA) was vaunted by former Conservative
Justice Secretary Chris Grayling as a key milestone in the ‘rehabilitation revolution’
which the Breaking the Cycle green paper had promised. In the months prior to the
introduction of this legislation into parliament, the Ministry of Justice (2012)
announced that reforms would make use of ‘greater competition to drive value’ with
a ‘greater role for the private and voluntary sectors’ in order to tackle perennially
high rates of re-offending and thus provide savings to the Treasury. This occurred
within the context of a prolonged period of economic austerity in the wake of the
Global Financial Crisis of 2008. However, the widespread marketization of crim-
inal justice in England and Wales (involving not only offender supervision, but also
prisons and resettlement services) was a longer-standing phenomenon involving
both New Labour and coalition governments (for a discussion see Corcoran, 2014).
Amidst much concern and criticism (see, for instance, McNeill, 2013; Gilbert,
2013; Calder and Goodman, 2013), the ORA introduced measures aimed at
‘addressing the gap in the criminal justice system where those serving under 12
months are released with no supervision or support’ (Ministry of Justice, 2012). The
government’s promotion of the ORA as a measure to tackle re-offending on the
grounds of this ‘gap’ was a controversial point, not least because public sector
probation services had hitherto been given no statutory responsibility to provide
290 Probation Journal 65(3)
supervision in such cases. The ORA introduced a mandatory minimum 12 month
period of supervision for all people sentenced to custody, often delivered by 21 new
Community Rehabilitation Companies (CRCs). These were formed by partnerships
between private sector organisations such as Sodexo, Amey, Interserve and Ingeus
UK and charities such as Nacro, the St. Giles Trust and Shelter. As well as working
with an estimated 50,000 additional short-term prisoners per year subject to the
new mandatory supervision arrangements, it was planned that the CRCs would take
responsibility for approximately 70 per cent of the resettlement functions previously
undertaken by the public probation service. Under the ORA, management of the
remaining ‘high risk’ cases (including those subject to MAPPA supervision) and
duties such as court reports, parole assessments, management of approved pre-
mises and victim liaison work fell to the new National Probation Service, founded
after the abolition of existing regional probation trusts in 2013.
Whilst Section 2 of the ORA stated that: ‘The purpose of the supervision period is
the rehabilitation of the offender’, the Act did not seek to achieve this by introducing
any specific measures designed to tackle the social stigma associated with a record
of imprisonment. Instead, the Act provided that non-compliance with the ‘rehabili-
tation’ on offer from CRCs could result in a further punitive sanction including a fine
or up to 14 days in prison. The ORA thus showed no concern for the legal reha-
bilitation of lawbreakers, but did expand the period in which they might be subject
to a range of interventions aimed at bringing about psychological and social
rehabilitation.
In reality, the implementation of the Transforming Rehabilitation agenda has
proven highly problematic, with the foreword to a HM Inspectorate of Probation
(HMIP) (2016: 4) report highlighting ‘poor or patchy morale’ amongst CRC staff,
some of whom ‘expressed concern about their competence to undertake their roles’.
Moreover, ‘training had not always been delivered in a timely way to equip them
with the skills required to enable them to undertake new or changed roles’ and ‘in a
substantial proportion of cases, not enough had been done before release to help
the individuals with their accommodation, employment or finances’. A separate
thematic review of Rehabilitation Activity Requirements (RARs) introduced by the
ORA for Community Orders and Suspended Sentence Orders also reported sig-
nificant problems with their implementation and delivery (HMIP, 2017).
A new kind of ‘gap’
The passage of the ORA again led to a pronouncement that a ‘major gap in the
criminal justice system’ had been addressed (Ministry of Justice, 2014). However,
despite this claim, a closer analysis of the impact of the ORA and its relationship
with the pre-existing ROA reveals that a new kind of ‘gap’ has, in fact, been opened
up by the legislation – particularly for those sentenced to custody. This gap results
from the failure of the government to synchronise the period of time for which
lawbreakers are subject to increased supervision aimed at ‘the rehabilitation of the
offender’ (under s.2 of the ORA) with the period before which they can be treated in
law as a ‘rehabilitated person’ under the ROA. To explain, in the majority of
Henley 291
determinate custodial sentences, the prisoner is released at the halfway point of
their sentence and, prior to the ORA, would have served the remainder of the term
on licence (with those serving sentences of more than 12 months subject to pro-
bation supervision). As discussed above, the ORA has subsequently directed that all
prison sentences now require a minimum of 12 months post-custodial supervision,
ostensibly for the purposes of ‘rehabilitation’. However, due to the lengthy waiting
times before legal rehabilitation can take place under the ROA, the individual is
effectively cast into a state of ‘civic purgatory’ between the conclusion of any
rehabilitative interventions and the recognition of that rehabilitation in law – that is,
where the individual is no longer strictly an ‘offender’ to be punished, managed and
supervised by criminal justice agencies but is also not able to enjoy unencumbered
access to the full range of rights and entitlements that ‘citizens’ do. There have, of
course, always been long waiting times between the completion of a sentence and
legal rehabilitation under the ROA. However, despite reducing these waiting times
just three days earlier, the government’s introduction of the ORA embedded an
additional gap between the termination of statutory supervision arrangements and
the achievement of a spent conviction. Thus, for many lawbreakers, whilst super-
vision and contact with either the NPS or a CRC may come to an end, they will face
an effective period of civic purgatory before their status as a ‘rehabilitated person’
under the ROA offers them at least some protection against social discrimination (for
example, in the labour market). Table 2 demonstrates the length of this period for a
selection of different custodial sentences.
To use the example of a person sentenced to 18 months imprisonment from Table 2:
the person is released from custody after nine months;
they then undergo a 12 month period of supervision (comprised of the nine
months mandated by their licence plus a further three months to meet the
requirements of the ORA);
Table 2. Key milestones and waiting periods from start of sentence for selected custodial
sentences.
Sentence length
(months)
Normal
release
point
(months)
Statutory
supervision
ends
(months)
Conviction
becomes
‘spent’
(months)
‘Civic
purgatory’
period
(months)
6 3 15 30 15
12 6 18 60 42
18 9 21 66 45
24 12 24 72 48
30 15 30 114 48
36 18 36 120 84
42 21 42 126 84
48 24 48 132 84
Over 48 24þ48þNever Permanent
Indeterminate Not fixed Not fixed Never Permanent
292 Probation Journal 65(3)
their contact with either the NPS or a CRC thus ends after 21 months;
the conviction will take a total period of 66 months to become ‘spent’ under
the ROA (the length of the 18 month sentence, plus a 48 month ‘buffer
period’);
there is thus a ‘gap’ of some 45 months between the termination of super-
vision arrangements and the achievement of legal rehabilitation.
In addition to the impact of this gap on determinate sentenced prisoners with
short to medium length custodial terms (including the estimated additional 50,000
people subject to post-custody supervision following the ORA), it remains the case
that anybody sentenced to more than four years imprisonment or an indeterminate
term is never eligible for legal rehabilitation under the ROA, regardless of their
subsequent conduct or engagement with supervision arrangements. Table 3 reveals
that in the five years which have followed the LASPO Act and its promised ‘rehabi-
litation revolution’, a significant number of sentences have been handed down in
England and Wales which fall into this category. Moreover, the number of such
sentences appears to have increased during this period compared to the 2013
baseline. Therefore, a growing number of people with convictions are permanently
regarded in law as beyond legal rehabilitation.
The lengthy buffer periods contained within many rehabilitation laws such as the
ROA usually last for several years and are justified by the argument that a convicted
person might remain at risk of further offending for a certain period of time after
having served their sentence. However, research demonstrates that the ability of
criminal records to predict future offending declines over time with reported rates of
offending becoming similar to (or even lower than) those for previously un-convicted
people after approximately seven years (see Kurlychek et al., 2006, 2007; Soothill
and Francis, 2007; Bushway et al., 2011). Crucially, it is not known to what extent
the re-offending which occurs during this period is a result of the stigma attached
to a criminal record. One significant area where criminal stigmatisation is known
to manifest itself is within the labour market (see Working Links, 2010). This is a
worrying phenomenon since stable employment has been linked to reductions in re-
offending of 30 to 50 per cent (Social Exclusion Unit, 2002).
Table 3. Sentences handed down which cannot become spent under the Rehabilitation of
Offenders Act 1974.
Year ending
31 March
Number of
sentences
% increase
(against 2013 baseline)
2013 6,841 n/a
2014 6,690 -2.2
2015 7,169 þ4.8
2016 7,335 þ7.2
2017 7,480 þ9.3
Total 35,515 -
(Source: Ministry of Justice 2017).
Henley 293
Problematising civic purgatory
As discussed elsewhere, a number of ‘pains of criminalisation’ may stem from the
stigma associated with a criminal record (Henley, 2018). In addition to problems
with fair access to employment, these can include: problems with accessing finan-
cial products such as insurance and mortgages; difficulties securing a tenancy;
problems with attaining travel visas for certain countries; restrictions on participating
in civil society (e.g. through election to various public offices) and even the possi-
bility of obtaining compensation as a victim of serious crime (Henley, 2018). Such
negative outcomes are often referred to as the ‘collateral consequences of a con-
viction’, although in many cases their impact may be experienced as more severe
than the initial punishment for an offence. Thus, the extent to which they are merely
‘collateral’ for many former lawbreakers is highly debatable. In this final section, I
discuss several reasons why this condition of ‘civic purgatory’ – resulting from the
gaps between sentence completion, the cessation of supervision arrangements and
legal rehabilitation – should be regarded as particularly problematic.
The problem of unnecessary confusion
In the first instance, the period of civic purgatory after sentence completion is
unnecessarily confusing for people with convictions (who need to understand the
complexity of rules governing when they are required to disclose convictions),
practitioners working in the criminal justice sector (who may be asked for advice
from their clients about those rules) and employers, financial service providers and
others (who need to understand precisely what kind of information about convic-
tions they are allowed to ask about and in what circumstances they are legally
allowed to consider this information). Indeed, in addition to the Home Office (2002)
review of the ROA, research on financial literacy amongst prisoners (Bath and
Edgar, 2010) found that the rules surrounding spent convictions were poorly under-
stood, with some assuming that the term ‘spent’ referred to the serving of the actual
sentence rather than the post-sentence rehabilitation period prescribed by the
ROA.Thereisthusacaseforagreatlysimplified system of dealing with criminal
record disclosures post-sentence which is more clearly understood by all the rel-
evant stakeholders. Indeed, if this were not the case, the charity Unlock (which
provides information and advice on issues surrounding criminal records) would
not receive so many thousands of contacts each year from people with convictions
seeking clarification about the rules governing disclosure.
The problem of public confidence in rehabilitative interventions
In the second instance, failing to treat as legally rehabilitated those who have
engaged with sentence planning and interventions aimed at promoting individual
level reform (psychological rehabilitation), risks sending out a message that the
government lacks faith in the efficacy of its own measures to reduce re-offending.
That is, by maintaining a period of civic purgatory, the post-sentence status of the
294 Probation Journal 65(3)
convicted individual is rendered highly ambiguous since members of the public may
assume that if a conviction remains unspent then this is indicative of an ongoing risk
on the part of the individual concerned, regardless of any claims of personal reform
underpinned by engagement with rehabilitative activities. In short, given that one of
the stated aims of sentencing is ‘reforming and rehabilitating the offender’ (Sen-
tencing Council, 2017), it sends a very confusing message to the public if the law
does not recognise rehabilitation once the sentence is complete. This runs the risk of
undermining the social rehabilitation of the former lawbreaker. Indeed, when
making a determination about whether or not to offer a job to a person, the
employer is likely to be confused by a situation in which an individual claims to have
been rehabilitated when the law is not yet prepared to accept that rehabilitation.
This situation is also problematic because, as stated above, the utility of criminal
records to predict future offending diminishes steadily over time. Moreover, as
Larrauri (2014b) has highlighted, the disclosure of a full criminal record (including
unspent or spent convictions and cautions depending on the level of background
check performed) may not always be a good proxy for the risk that employers in
particular hope to avoid. For instance, the disclosure of an unspent common assault
conviction on a ‘basic’ level criminal records check tells the employer nothing about
an underlying alcohol problem which poses the real risk for a job as a courier.
The problem of perceived legitimacy
A third and critically important problem arising from the state of civic purgatory is
that it may undermine the perceived legitimacy of rehabilitative interventions from
the perspective of those required to engage in them. That is, for those lawbreakers
who have been required to undergo supervision and to engage with rehabilitative
activities, a sense of injustice is likely to arise if, following the successful com-
pletion of a sentence, they discover that the law does not treat them as a ‘reha-
bilitated person’ for a lengthy period afterwards (if ever). If we accept the idea that
punishment serves an expressive purpose of communicating social disapproval to
lawbreakers (following Duff, 2001), the failure to formally recognise and legally
protect the status of a person who has complied with supervision and engaged
fully with any rehabilitative interventions sends a particularly harsh message – not
only to them, but also to other potential desistors – that the law, the state and
society are not prepared to reciprocate when genuine efforts at ‘making good’
(Maruna, 2001) take place.
The period of civic purgatory following a sentence is therefore likely to lead to
feelings of injustice. This is important, since Tyler (1990) has argued that people do
not comply with the law simply because they fear punishment but because they feel
that legal authorities are legitimate and that their actions are generally fair (for a
discussion see Bottoms and Tankebe, 2012). Given that many thousands more
people each year are now required to participate in rehabilitative activity as a result
of the ORA and that approximately seven thousand people each year receive a
sentence which cannot become spent under the ROA (see Table 3), this problem of
perceived legitimacy would appear to be both a substantial and growing one.
Henley 295
Reconciling sentencing, supervision and legal
rehabilitation
There is, arguably, an inherent absurdity of intervening in the lives of more law-
breakers through an expanded system of statutory supervision, but then under-
mining the efforts of probation workers by ‘resettling’ people with convictions in a
hostile social climate where discrimination based on criminal records is wide-
spread. Moreover, as alluded to above, if the government has any confidence in the
efficacy of its rehabilitation programs, natural justice demands that the law also
treat the individual as rehabilitated after the conclusion of the sentence. To do
otherwise suggests that the government is unwilling to commit to the requalification
of former lawbreakers as citizens of equal merit once attempts at social and psy-
chological rehabilitation are complete. However, legal rehabilitation evidently
remains something of an afterthought within the current approach, resulting in the
problems of civic purgatory identified above.
In order to both mitigate the problematic elements of civic purgatory and to
reconcile the processes of sentencing, supervision and legal rehabilitation, I con-
tend that there is a pressing need to work towards a fully-integrated approach to
rehabilitation which achieves greater parity between the four elements of rehabili-
tation (psychological, moral, social and legal) in McNeill’s (2012) model. Whilst
the points made here are about legal rehabilitation, McNeill has argued that the
lack of social rehabilitation is at the root of a ‘hostile correctional climate ...and it
lies behind the mistranslation, corruption, and misuse of rehabilitation theories’ (p.
15). Indeed, Mawby and Worrall (2011, 2013) have noted how the occupational
culture of probation workers has been shifted away from its traditional ‘social-work’
foundations and towards ‘offender management’ approaches which are heavily
invested in compliance, enforcement and risk-prevention.
In moving towards such a more ‘integrated’ approach it will be necessary to
rethink the dominant utilitarian penal philosophy which seems to take precedence
over any ‘ethics of duty’ in rehabilitation. To explain, the Transforming Rehabilita-
tion agenda has largely been advanced on utilitarian grounds of reducing public
expenditure and maximising public protection rather than through a deontological
approach which ‘says that we should rehabilitate offenders because it is
just ...because each individual has moral importance and we should make every
reasonable attempt to assist offenders in the transformation from criminal to law
abiding citizen’ (Brooks, 2012: 52). The deontological grounding for rehabilitation
matters precisely because the perceived legitimacy of criminal justice sanctions is
undermined by civic purgatory not only for those currently serving sentences but
also for the over 11 million people in the UK who have a potentially disclosable
criminal record stored on the Police National Computer (Home Office, 2017).
In order for these people to perceive sentencing and supervision arrangements as
‘just’ they must feel that they have been genuinely given a ‘second chance’. Thus
there is a moral duty to return people to society unencumbered by the stigma of their
punishment. However, this is not to undermine other competing demands on sen-
tencers that lawbreakers should receive their ‘just deserts’ for wrongdoing. Canton
296 Probation Journal 65(3)
(2017) has argued that the ‘right to rehabilitation’, far from being at being at odds
with more retributive approaches to criminal justice, is in fact required by the
retributivist demand for proportion in punishment. He suggests that:
once the punishment has been served, the standing of the ex-offender should be the
same as that of anybody else, and retributivists ought to welcome attempts to restore
people to their due status. Moreover, unintended punitive elements – deprivations or
hardships that are not part of the justly imposed sentence but may follow from it (like
loss of accommodation, unemployment, stigma) – are retributively unjust and therefore
ought to be minimised or redressed. (pp. 120–1)
There is thus a strong moral basis for the promotion and protection of social
rehabilitation through measures which also advance the legal rehabilitation of
former lawbreakers. However, given some of the practical problems of the ROA,
it may be necessary to introduce ways of protecting the legal and social status of
people with convictions post-sentence by considering the possible impacts of their
criminal records at the same time as when punishment and supervision arrange-
ments are formalised – i.e. at the point of sentencing. This might be achieved by
adopting an approach suggested by Larrauri (2014b), who argues that the mitiga-
tion of future risk and issues of public protection – which form the main rationale for
criminal record disclosure – might be advanced more appropriately by allowing the
judiciary to impose occupational disqualification orders on lawbreakers. These
would bar individuals from specific occupational groups (such as driving offences
or work in the financial sector) and replace the existing system of blanket criminal
record disclosure which occurs in many standard and enhanced DBS checks. Thus,
employers and others would be allowed to ask only for information which was
strictly relevant to the circumstances for which a check was being conducted. Since
existing statutory bars exist for work involving children and vulnerable people, a
more refined system such as this is eminently achievable. Other than such bars, a
fundamental right to be treated as rehabilitated could be asserted for people with
convictions once a sentence and any supervision arrangements have been duly
completed. Such an approach would be considerably less complicated than the
current system of spent convictions which – after inflicting lengthy periods of civic
purgatory – retrospectively rewards only some former lawbreakers for successful
desistance, often years after psychological, moral and social rehabilitation has
already occurred, and often against great adversity.
Author’s Note
Andrew Henley is now affiliated to University of Nottingham, UK.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research,
authorship, and/or publication of this article.
Henley 297
Funding
The author(s) received no financial support for the research, authorship, and/or
publication of this article.
Notes
1. See, for example, the Criminal Records Bill introduced (as a Private Members Bill) by
Unlock’s President Lord Ramsbotham, which seeks to bring rehabilitation periods in line
with those proposed by Breaking the Circle and to extend the protections of the ROA to all
those who have served a determinate sentence.
2. There is also an issue caused by the impact of ancillary court orders made by courts when
dealing with lawbreakers due to the effect of section 5(8) of the ROA. This requires that a
conviction cannot become spent whilst an order ‘imposing on the person convicted any
disqualification, disability, prohibition or other penalty’ has effect. Such orders might
include Criminal Behaviour Orders or Sexual Harm Prevention Orders (previously Sexual
Offences Prevention Orders). Thus, a number of more recent ‘preventative justice’ mea-
sures (see Ashworth et al., 2013) introduced since the passage of the original ROA have
the effect of delaying the possibility of a criminal record being spent. They therefore take
on punitive as well as preventative characteristics.
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