The retention of information on individuals who have come in contact with the criminal justice system can be extremely important for future crime prevention and detection and the safeguarding of children and vulnerable adults.
However, it is vital to ensure that such sensitive information is only retained and disclosed for as long as is necessary and proportionate.
The Rehabilitation of Offenders Act 1974 (ROA) provides that convictions for which someone is sentenced to less than two and a half years in prison or to a penalty other than imprisonment become “spent” within a specified period of time (between six months and ten years), provided that the person does not reoffend in the meantime. This means the person will not need to disclose that conviction to anyone once the relevant period has passed. Further information on how convictions become spent can be found on the fact sheet: Disclosure of convictions.
However, certain types of employment are exempt from this rule, in particular jobs working with children or vulnerable people. If a person wants to apply for one of these exempt positions they can be required to reveal all convictions, both spent and unspent, and any cautions. These will also be revealed on a criminal record check. The types of work for which an employer can now require the disclosure of spent convictions is extremely long and has grown hugely over the past few decades. The list now includes doctor's receptionists, dental nurses, stewards at a football grounds, traffic officers etc.
Liberty believes that the list of exemptions to the “spent” conviction rule needs urgent review.
Criminal Records Checks
If a person applies for a job which is exempt from the protections of the ROA their potential employer can check their police records. In England and Wales there are two types of criminal record checks that can be issued by the Disclosure and Barring Service (formerly the Criminal Records Bureau):
- Standard Disclosure – this shows all convictions (whether spent or unspent), cautions, reprimands and warnings held on the Police National Computer. Further information on what information can be disclosed and when an employer can request Standard Disclosure can be found on the fact sheet: Standard DBS checks.
- Enhanced Disclosure – this is the highest level of check available and contains the same information as the Standard Disclosure but also includes any information that the police reasonably believe is relevant and ought to be included. This can include ‘soft’ information, for example allegations made by someone against the person. Further information on what information can be disclosed and when an employer can request Enhanced Disclosure can be found on the fact sheet: Enhanced DBS checks.
Following changes made by the Protection of Freedoms Act, before a criminal record check is sent to any prospective employer the person to whom it relates will be able to make representations to the Disclosure and Barring Service. This would allow, for example, an individual to challenge incorrect information included on their record.
Changes to the law in May 2013
Before May 2013, all cautions and convictions were automatically disclosed on standard and enhanced criminal records checks. However this system was judged to be disproportionate and in breach of Article 8 ECHR in the case of T v Greater Manchester Police, in which Liberty intervened. In response to this judgment, the Government brought in a new system that allows for some convictions and cautions to be filtered from DBS checks after a certain period of time, which means they will not be disclosed. More information can be found on the facts sheets: ‘Standard DBS checks’ and ‘Enhanced DBS checks’.
Police National Computer (PNC)
A record is held on the PNC of anyone who has been arrested, convicted, cautioned, reprimanded or warned in respect of a recordable offence (being all offences punishable by imprisonment at least one year plus a number of other minor offences including begging or drunkenness in a public place). Around 10 million records are held on the PNC. Information about anyone’s convictions, cautions, reprimands or warnings on the PNC is stored for 100 years from their date of birth.
Police National Database (PND)
The PND, introduced in 2010, is a nation-wide database that includes all of the information on the PNC plus all of the information held by local police forces. This includes ‘soft’ information such as allegations made against a person that does not result in arrest, and concerns passed on to the police from other bodies (such as schools or social services).