Disclosure of Criminal Convictions
Under the Rehabilitation of Offenders Act 1974 criminal convictions and cautions that become 'spent' do not have to be disclosed except in thirteen specified purposes set out in the Rehabilitation of Offenders Act (Exceptions) Order 1975. These include, among others, working in healthcare, accountancy, law, judicial office and the police and probation service.
The effect of the legislation is that, unless the purposes in the Exceptions Order are engaged, a person does not have to disclose a previous conviction if it is spent or answer a question which may acknowledge a spent conviction.
The Police Act 1997 introduced the disclosure of criminal conviction history by the Disclosure and Barring Service (DBS), which can provide three types of conviction disclosure records, or 'certificates'. A criminal conviction certificate sets out an applicant's convictions and does not contain details of spent convictions or cautions. This is also known as a 'basic check'.
A criminal record certificate (or 'standard check') contains a record of an applicant's convictions, including spent convictions and cautions.
An enhanced criminal record certificate (or 'enhanced check') contains an applicant's convictions, including spent convictions and cautions, and can include any other information which the police reasonably believe to be relevant for the application and the purposes that the information is sought for. This can include information about arrests where no further action was taken and information about a prosecution which ultimately ended in an acquittal.
Further legislation was introduced in 2013 which introduced filtering to the criminal record certificates and enhanced criminal record certificates. Following these changes, not all spent cautions and convictions will be disclosable on the certificate - some may be protected from disclosure. For adults these include cautions that are at least 6 years old and where the offence was not a listed offence. Similarly, adult convictions are protected from disclosure if they are at least 11 years old if no custodial sentence was imposed, and if the offence was not a listed offence. However, where someone has more than one conviction, these will not be protected and all those convictions will fall to be disclosed.
In January 2019 the Supreme Court determined that this rule requiring disclosure of multiple convictions was disproportionate and incompatible with Article 8 of the European Convention on Human Rights in that it did not distinguish between the nature of any offences, the number of convictions or cautions, or the length of time that may have passed.
If you receive a disclosure certificate from the DBS and you are concerned about the content, it may be possible to challenge it. If the information on the certificate is inaccurate, you can challenge it by applying in writing to the DBS. Similarly, if you receive an enhanced criminal record certificate and it contains non-conviction information which you think should not be included on the certificate, you can apply to the Independent Monitor of the DBS and ask for this to be reviewed.
Challenging unlawful or inappropriate disclosures of your conviction history can be a confusing and distressing experience. If you would like advice, our lawyers may be able to assist you.