Hugh Price and Andrew Manners say that disclosure of spent convictions could influence an underwriter's decision
' The Rehabilitation of Offenders Act 1974 fundamentally changed the law as to disclosure of criminal convictions to insurers.
In the words of the Lord Chief Justice at the time : "A person who has become rehabilitated ... shall be treated ... as a person who has not committed ... an offence ...."
The Act was intended to give criminal offenders a chance to start afresh, but it has had significant consequences for insurers.
The fundamental requirement is for "all material facts" to be disclosed to an insurer, that is, those which would result in a prudent insurer either charging an increased premium or refusing to underwrite the risk.
In this context "material facts" include any moral hazard, such as the potential behaviour of the policyholder by reason of prior dishonesty and doubtful integrity.
Plainly the term 'risk' in this context embraces more than the likelihood of an event occurring, it includes the prospect of a false or fraudulent claim being made.
This issue was raised almost 50 years ago in Regina Furs v Bossom [1957] where the policyholder had all-risk cover for a stock of furs. The insurer repudiated a theft claim for failure to disclose a 20-year-old conviction of a director of the company for receiving stolen furs. The trial judge (upheld on appeal) concluded that the omission was material and found for the insurer, notwithstanding the passage of time.
Some underwriters argue that they need to know everything that may affect their opinion of the integrity of the policyholder. This is not the correct test. The issue is whether a prudent underwriter may be influenced by the information - the test is objective. However, where the conviction relates directly to the risk then ordinarily it should be disclosed.
These principles for disclosure are fundamentally affected by the Rehabilitation of Offenders Act 1974 in that policyholders are not obliged to notify insurers of any spent convictions.
Incidentally, it would be pointless to refer in a proposal form to "previous convictions whether spent or otherwise" because under s2 of the Act a question relating to spent convictions will not cause prejudice to the proposer for any failure to disclose.
The law requiring disclosure to an insurer is consistent in that the test is whether or not the undisclosed information would affect an underwriter's decision as to the premium to charge or whether to take on the risk.
However, where a conviction is "spent" under the Rehabilitation of Offenders Act insurers cannot successfully repudiate if a spent conviction is not disclosed. IT
' Hugh Price is a partner and director of insurance and Andrew Manners is a partner and head of corporate crime at Hugh James, Solicitors
A full version of this article with case studies is available to Biba members at www.biba.org.uk
