The Rehabilitation of Offenders Act 1974 (ROA) prevents the unauthorised disclosure of spent convictions after a rehabilitation period so that, in all but the most exceptional circumstances, a person’s convictions should not follow them through the remainder of their lives. Following this rehabilitation period, a conviction is considered ‘spent’ and the person is to be treated as if he or she had not committed or been charged with the offence.

The ROA’s purpose is to enable prisoners to have a second chance at becoming part of the community by removing the negative impact an old conviction would have on job prospects and positive relationships. Most notably, the rehabilitated person will not be required to declare any spent conviction in most job applications and employers are unable to refuse to employ someone on the basis of a spent conviction.

ROA criminalises the disclosure of spent convictions in some circumstances, but it does not create a general criminal or civil liability. A person wanting to bring a claim against a newspaper may make a claim by turning to defamation or privacy law.

Fortunately, section 8(3) of ROA enables a publisher to defend a defamation claim by using the “truth” and “honest opinion” defences that are provided by the 2013 Defamation Act. Truth is an obvious defence, where it is demonstrably true that the claimant was convicted of the offence reported. However, a publisher cannot rely on the defence of ‘truth’ if the claimant is able to prove that the publication has been made with malice. Unfortunately for publishers, the word ‘malice’ is not defined within the ROA, leaving it up to the courts to decide where to draw the line.

Case law (Herbage v Pressdram) tells us that for the purposes of the ROA, malice means that the publication was made “with some irrelevant, spiteful or improper motive”, for example trying to cause financial harm to the claimant – rather than reporting the conviction in a story which is clearly in the public interest.

This was reinforced in a later case by Mr Justice Eady (Silkman v Heard), who underlined that the claimant must prove that the dominant motive for publishing the article was to injure the claimant and that given the gravity of an allegation of malice in any context, the standard of proof on the claimant would be correspondingly high.

Qualified privilege is the other obvious defence to a defamation claim arising from reporting a spent conviction, because a fair and accurate report of court proceedings held in public is automatically protected by qualified privilege. Once again, this protection is subject to malice.

Publishers have historically relied on s8 ROA and public interest in reporting spent convictions. If the dominant purpose of the article is public interest, then ‘malice’ will not apply.

However, recent commentary has raised the question of whether a spent conviction is private information and publication could be a breach Data Protection Act 1998 or give rise to a claim for misuse of private information.

In the context of an action for misuse of private information it is arguable that when a conviction becomes spent, it is private information for the purposes of Article 8 of the European Convention on Human Rights (ECHR) because it has receded into the past and become part of a person’s private life.

Therefore, the ROA would have ‘generated’ a reasonable expectation of privacy by practically expunging the conviction from public record. The court would then undertake a balancing exercise between the claimant’s right to private and family life against the publisher’s right to freedom of expression. The result, as is usually the case, would then be the ‘ultimate balancing act’ of privacy v freedom of expression, and will depend on the facts.

Whether this argument is correct has yet to be tested in the courts. From the perspective of the individual, it’s an attractive argument, but from the press’ perspective, it seems to undermine the whole purpose of s8 and the special provisions made to guarantee freedom of expression.

For the time being therefore, the press should continue to report spent convictions in the usual way, but as ever, the important point to remember is that there should be no hint of malice at any point in the process