Annex 1: the criminal records disclosure system
Disclosure and Barring Service
a)Requests for disclosure of criminal records are handled by the Disclosure and Barring Service (DBS), a Home Office-sponsored non-departmental public body set up in 2012 to replace the former Criminal Records Bureau and the Independent Safeguarding Authority. The DBS processes requests for criminal records checks in England and Wales and is also responsible for placing people on, or removing them from, the children’s barred list and adults’ barred list for England, Wales and Northern Ireland.
b)A DBS check may be required by organisations in the public, private or voluntary sectors as part of pre-recruitment checks, or in relation to volunteering roles or applications for particular licences. Organisations can register with the DBS if they request more than 99 checks per year; alternatively, they can use a body that is authorised to provide DBS umbrella services. Provided that the role or activity is listed in the relevant legislation as qualifying for a standard or enhanced DBS check, the DBS-registered organisation is entitled to receive information from the Police National Computer (PNC) about an individual’s full criminal history, including convictions that are spent under the Rehabilitation of Offenders Act 1974 (ROA). Certain old and minor criminal convictions may be filtered from disclosure. Enhanced checks may also include additional, non-conviction information based on local police intelligence that is held on the Police National Database (PND).
c)Although an individual may apply on their own behalf for a basic DBS certificate, standard and enhanced checks require the completed application form to be countersigned by the DBS-registered organisation or umbrella body, which then submits it to the DBS. When the individual receives the DBS certificate, this is passed on to the organisation requiring the check. There is no provision for the applicant to preview the information that will appear on their certificate, nor do they have a right of appeal against disclosure—although they may apply to the DBS for an amended certificate on the grounds that it is inaccurate.198 As described below, there is a right to challenge disclosure of non-conviction intelligence held by local police forces.
The Rehabilitation of Offenders Act 1974
d)The regime governing the disclosure of criminal records is underpinned by the Rehabilitation of Offenders Act (ROA) 1974, amended in 2014.199 The Act, which applies in England, Wales and (with modifications) Scotland, enables certain criminal records to be become spent after a specified period of time—that is, the individual is treated, in principle, as though the offence had never been committed. The length of time before a caution or conviction becomes spent is determined by the type and length of sentence. The ROA is designed to support ex-offenders by treating them as ‘rehabilitated’, to facilitate their re-entry into society. Subject to a number of exceptions, it is normally unlawful for employers to take spent convictions into account when considering someone’s suitability for employment.
e)This table sets out rehabilitation periods that apply to custodial sentences and the most common non-custodial disposals following the 2014 changes. The rehabilitation periods prior to the 2014 changes appear in square brackets
|
Sentence/ disposal |
ADULTS (18 and over at the time of conviction or disposal). Time is calculated from the end date of the sentence (including the licence period). |
YOUNG PEOPLE (under 18 at the time of conviction or disposal). Time is calculated from the end date of the sentence (including the licence period). |
|
Custodial sentence* of over 4 years, or a public protection sentence |
Never spent [unchanged] |
Never spent [unchanged] |
|
Custodial sentence of over 30 months (2½ years) and up to and including 48 months (4 years) |
7 years [never spent] |
3½ years [never spent] |
|
Custodial sentence of over 6 months and up to and including 30 months (2½ years) |
4 years [10 years, calculated from date of conviction] |
2 years [5 years, calculated from date of conviction] |
|
Custodial sentence of 6 months or less |
2 years [7 years, calculated from date of conviction] |
18 months [3½ years, calculated from date of conviction] |
|
Detention and Training Order, over 6 months |
N/A |
As for custodial sentence [5 years if over 15 at date of conviction; 1 year after order ceases if aged 12 to 14] |
|
Detention and Training Order, 6 months or less |
N/A |
As for custodial sentence [3½ years if over 15 at date of conviction; 1 year after order ceases if aged 12 to 14] |
|
Community order/youth rehabilitation order |
1 year [5 years, calculated from date of conviction] |
6 months [The period of the order, or 12 months from the date of conviction (whichever is longer)] |
|
Simple caution |
Spent immediately |
Spent immediately [unchanged] |
|
Fine |
1 year [5 years, calculated from date of conviction] |
6 months [2½ years, calculated from date of conviction] |
|
Endorsement (motoring offence) |
5 years |
2½ years |
* “Custodial sentence” includes immediate and suspended custodial sentences, detention in a Young Offender Institution and Detention and Training Orders.
f)The 2014 amendments to the ROA 1974 have lengthened the rehabilitation periods for some YROs and DTOs. YROs used to become spent after one year, or when the order ceased to be in force—whichever was later. Under the amended legislation, YROs become spent six months after the order ceases to be in force, meaning that YROs over six months have a longer rehabilitation period than under the previous rules. DTOs for 12 to 14 year olds previously became spent one year after the order ceased to have effect but, under the 2014 legislation, DTOs are now treated like other custodial sentences with no account taken of age; all DTOs of six months or less become spent 18 months after the end of the sentence and DTOs over six months become spent after two years. This means, for example, that the rehabilitation period for an 18 month DTO has increased from 2½ years to 3½ years.
The Exceptions Order and the Police Act regulations
g)The ROA’s general principle that spent offences must not be disclosed is qualified by the ROA 1974 (Exceptions) Order 1975200 (“the Exceptions Order”). This permits questions normally unlawful under the ROA to be asked about spent convictions and cautions, to assess a person’s suitability for certain occupations or types of employment, licences or permits involving particular risks or sensitivities or high levels of trust; these are often called “exempted questions”. In broad terms, the Exceptions Order covers the medical, pharmaceutical and legal professions; judicial office, work in law enforcement and the prison service; teaching, healthcare and social services occupations that involve contact with children or other vulnerable people; high level positions in the financial services and insurance sectors; and licences relating to gambling and firearms. As well as enabling exempted questions to be asked about unspent convictions or cautions, the Exceptions Order allows the disclosed information, or a failure by the individual to disclose it, to justify excluding the person in question from listed occupations or activities.
h)The Exceptions Order is closely linked to Part V of the Police Act 1997, which provides for different types of criminal record certificates to be issued:
- Basic disclosure certificates show unspent conditional cautions and convictions. Any individual may apply for a basic certificate on their own behalf without the request being authorised or countersigned (for example, by a prospective employer). For people living in England and Wales, applications are handled by Disclosure Scotland, an executive agency of the Scottish Government.
- Standard disclosure certificates are issued by the DBS for occupations and activities set out in the Exceptions Order (other than for activities that qualify for an enhanced certificate). Standard certificates include all spent and unspent convictions and cautions, subject to filtering arrangements which are described below.
- Enhanced disclosure certificates are issued only for “prescribed purposes”201 which include activities linked to national security, medical roles and work with children or vulnerable adults. As well as disclosing spent and unspent convictions (subject to filtering), enhanced certificates may include other information that the chief police officer reasonably considers to be ‘relevant’.
- Enhanced disclosure certificates with barred list checks include a check against the DBS list of individuals who have been barred from working with children or vulnerable adults, established by the Safeguarding Vulnerable Groups Act 2006 (as amended in 2012). To eligible for a barred list check, the position must fall within the definition of “regulated activity”; examples include providing health or personal care, social care or social work services.
The filtering scheme
i)In 2013, the Court of Appeal held that the disclosure regime under the Exceptions Order and the Police Act 1997 was incompatible with Article 8 of the European Convention on Human Rights (the right to respect for private and family life), because it was disproportionate to the legitimate aims of protecting employers and vulnerable individuals.202 In response to the judgment, a filtering system was introduced. It operates in a mechanical fashion, with no right of appeal against disclosure decisions.
- A single conviction is filtered from disclosure, provided it did not result in a custodial sentence, was not for a “listed offence”, and more than 11 years has elapsed since the conviction—or more than five and a half years if the person was under 18 when convicted.
- Single or multiple cautions, apart from for “listed offences”, are filtered once six years has elapsed—or two years if the person was under 18 at the time of the caution.
j)The “listed offences” that are non-filterable have been set out in almost identical amendments to both the Exceptions Order and the Police Act 1975.203 While the legislation makes specific reference to some offences, it also cross-refers to lists of offences contained in Schedules to other primary and secondary legislation. Based on these various legislative sources, the Government has created a database of 942 offences that will never be filtered, covering England and Wales, Scotland and Northern Ireland.204 The database includes sexual and violent offences and those that are relevant to safeguarding, together with equivalent offences committed overseas. The list also includes less serious offences, such as failing to display a certificate of registration in a residential care home.205
k)In contrast, spent convictions in Scotland are treated on a case-by-case basis; there are no blanket rules regarding the disclosure of multiple convictions. An offence on the ‘always’ list must always be disclosed, whereas other offences are disclosed subject to rules (‘the rules list’) and the remaining spent offences are not disclosed. For a subject who was 18 or over at the date of conviction, an offence on the ‘rules list’ is disclosed for up to 15 years; and up to 7 and a half years if the subject was under 18; an admonition or absolute discharge will not be disclosed.
Police retention and disclosure of information
l)The power for police to keep records on the police national computer (PNC) is contained in the National Police Records (Recordable Offences) Regulations 2000.206 The PNC holds a record of anyone who has been convicted, cautioned, reprimanded, warned or arrested in relation to a recordable offence. The regulations define a “recordable offence” as including any offence punishable by imprisonment, together with a number of non-imprisonable offences set out in the Schedule to the Regulations.207
m)Until 2006, the police could delete convictions from criminal records under the so-called “weeding” rules, designed to minimise the disclosure of old and minor convictions. That year, a new policy was adopted under which all data would be retained until the subject of the record reached the age of 100; however, provision was made for individuals to apply for “step down” of convictions or cautions, meaning that these records would not generally be subject to disclosure, although they would remain on the PNC and be available to the police.
n)In October 2009, the “step down” policy was brought to an end as a result of a Court of Appeal decision208 that considered the compliance of the disclosure regime with data protection principles.209 In consequence, all convictions, cautions, reprimands and warnings recorded on the PNC—spent or otherwise—had to be disclosed on a standard or enhanced criminal record certificate.210 This approach was modified in 2013 by the introduction of the filtering scheme following another Court of Appeal decision in the case of T.211
o)Since May 2010, local police intelligence about individuals—such as allegations or investigations that did not lead to further action, background information relating to convictions or cautions, and details of arrests—has been recorded on the Police National Database (PND), a system distinct from the PNC. When a request for an enhanced DBS certificate is made, the person’s details are referred to any police force which may hold local information about them. The chief police officer will check against their records for anything which they reasonably believe to be relevant to the purpose of the certificate and then consider whether it ought to be disclosed. When making this decision, chief officers are subject to Home Office statutory guidance212 which requires them to assess the merits of every piece of information, taking into account its age, the age of the individual concerned at the time of the event, and their intervening conduct; there should be no presumption either for or against disclosure and the decision should be made “in a way that is compatible with the applicant’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights.”213
p)In 2012, an Independent Monitor was established214 to monitor police decisions to disclose this non-conviction information. The Monitor’s role is fulfilled in two ways. First, he or she must review a sample of cases in which non-conviction information is included, or not included, on enhanced criminal record certificates to ensure compliance with both the Home Office Statutory Guidance and Article 8 of the European Convention. Second, the Independent Monitor must conduct a review on application by an individual who thinks that the information being disclosed about them is not relevant or ought not to be disclosed for other reasons.
q)The Independent Monitor’s annual report for 2014 records that 310 appeals against police disclosure of non-conviction information were received that year. In over 83% of these cases (258), the police decision was upheld in its entirety; of the remaining cases, 23 resulted in full deletion of the information and 22 in partial deletion. No significant areas of concern were noted in the Independent Monitor’s review of a sample of cases for that year—both cases of undisputed police disclosures and those cases where no disclosure was made.215
199 Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. A Private Member’s Bill is currently before Parliament (the Criminal Records Bill, sponsored by Lord Ramsbotham), which proposes further reductions in the time before criminal records are spent.
200 The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, SI No 1975/1023. Amendments to this Order were made in 2013, with further amendments in 2014, 2015 and 2016.
201 Police Act 1997 (Criminal Records) Regulations 2002, as amended; SI No 2002/233. This SI was amended in 2006, and every year thereafter until 2014. No consolidated version has been published.
202 R (on the application of T) -v- Chief Constable of Greater Manchester and others [2013] EWCA Civ 25. The case concerned the requirement to disclose, in an enhanced certificate, two warnings issued to the claimant for stealing bicycles at the age of 11.
203 Article 2A(5) of the Exceptions Order and Section 113A(6D) of the Police Act 1997; the Exceptions Order does not list murder, as a conviction for murder is never spent under the ROA.
204 https://www.gov.uk/government/publications/dbs-list-of-offences-that-will-never-be-filtered-from-a-criminal-record-check
205 Under Section 5(6) of the Registered Homes Act 1984 and Section 28 of the Care Standards Act 2000
207 In addition, there is power to record any other offence(s) of which an individual is convicted in the same proceedings (Regulation 3(3) of the 2000 Regulations).
209 However, following the Court of Appeal’s decision in R(T) v Chief Constable of Manchester Police [2013] EWCA Civ 25, a system of filtering was introduced in 2013; see paragraph (i) above.
210 In exceptional circumstances, such as cases of false allegation or mistaken identity, Chief Police Officers can exercise their discretion to delete certain PNC records, for example records of out of court disposals: see Deletion of records from National Police Systems, National Police Chiefs Council, 2015
211 R (on the application of T) -v- Chief Constable of Greater Manchester and others [2013] EWCA Civ 25
214 Under section 119B of the Police Act 1997 (inserted by Safeguarding Vulnerable Groups Act 2006)
24 October 2017