Posted on 27th September 2016
Over 10.5 million people in the UK have a criminal record and many face stigma and discrimination when applying for jobs. Earlier this month Unlock, a charity which assists those with convictions, launched a new website that encourages companies to recruit people with criminal records.
Recently the Cardinal Vincent Nichols also expressed his belief that ex-prisoners shouldn’t have to declare their criminal convictions on initial job application forms. Instead employers should wait until the later stage of the interview process to request such disclosure thereby enabling applicants an opportunity to present themselves free from preconceptions.
Whilst these are positive steps for those with criminal records, it remains important that those who have had an encounter with the criminal justice system, whether with the Courts or the police, understand when sensitive information relating to criminal matters can be retained and disclosed.
When you are applying for a job, you may be asked whether you have ever been convicted of a criminal offence or whether you have ever been given a caution, reprimand or warning for an offence. In most instances whether you are required to disclose a previous conviction or caution will depend on whether it is ‘spent’ or not.
Under the Rehabilitation of Offenders Act 1974, many convictions and cautions become spent after a certain period of time, known as the rehabilitation period. Once the relevant rehabilitation period has passed, you will not need to disclose that conviction.
|Sentence / Caution||Rehabilitation Period|
|Prison/Youth custody sentence over 4 years||Never spent|
|Prison/Youth custody sentence between 2.5 years and 4 years (including suspended sentences)||7 years* (3.5 years for those under the age of 18 at the time of conviction)|
|Prison/youth custody sentence between 6 months and 2.5 years (including suspended sentences)||4 years* (2 years for those under the age of 18 at the time of conviction)|
|Prison sentence of 6 months or less||2 years* (1.5 years for those under the age of 18 at the time of the conviction)|
|Most fines||1 year** (6 months for those under the age of 18 at the time of conviction)|
|Community order or youth rehabilitation order||1 year*** (6 months for those under the age of 18 at the time of conviction)|
|Conditional discharge||End of the discharge order|
|Absolute discharge||Immediately spent|
|Conditional cautions||3 months or when caution ceases to have effect if earlier|
|Cautions, warnings and reprimands||Immediately spent|
* Starting from the date on which the sentence (including any licence period) is completed.
** Starting from the date of conviction.
*** Starting from the end of the order. This period starts from the last day of when the order given by the court has effect. Where no such date is provided, the rehabilitation period for the order is 2 years, starting from the date of conviction.
However, for certain types of employment potential employers are entitled to know about all convictions, both spent and unspent, any cautions and, in some circumstances, other information that the police hold about you. These employers can request a check to be carried out by the Disclosure and Barring Service (DBS) (formerly the Criminal Records Bureau). The police are legally obliged to provide the DBS with access to all convictions held on the Police National Computer.
The Police National Computer (PNC) system holds records of anyone who has been arrested, convicted, cautioned, reprimanded or warned in respect of a recordable offence. This information is stored on the PNC until a person reaches 100 years of age.
There are two types of DBS checks for criminal records:
However, some old and minor convictions and cautions will not be disclosed once a certain period has passed. Cautions will not be disclosed after 6 years from the date of the caution (2 years if received when under the age of 18). Convictions that did not result in a prison or suspended prison sentence will not be disclosed after 11 years from the date of the conviction (5½ years if received when under the age of 18). However, all convictions will be disclosed if there is more than one on an individual’s record.
Certain convictions and cautions will never be filtered and will always be disclosed on DBS checks. For example, offences committed under the Sexual Offences Act 2003.
Other information held by the police, such as previous arrests and Penalty Notices for Disorder, will not be disclosed under a standard DBS check.
It is important to note that a person is entitled to apply to the DBS under the Data Protection Act before a criminal record check is sent to any prospective employer, for example to challenge any incorrect information held on the PNC.
You have the right to contact the police directly about information about you which is held on the PNC, and ask them to remove it through the Record Deletion Process. However, individuals with a court conviction cannot apply to have their records deleted under this process.
The deletion of records from the PNC is usually reserved for removing non-conviction information, such as allegations, arrests, cautions and acquittals. A person can apply to have a record removed from their PNC by submitting an application to the ACPO Criminal Records Office outlining the grounds for its removal.
However, the Record Deletion Process is based on, though not limited to, a Chief Officer having substantial evidence that someone has been eliminated as a suspect before agreeing to delete their records. For example, insufficient evidence to convict does not necessarily mean there is sufficient evidence for an individual to be eliminated as a suspect.
The following are examples of circumstances when a Chief Officer may consider the deletion of a person’s PNC record:
If the police agree to remove a caution from the PNC record it will show as ‘no further action’ instead of a caution. It will no longer be disclosed on a standard or enhanced DBS check, unless the police feel that it is relevant and ought to still be disclosed under an enhanced check. However, this can be challenged by way of an application to the DBS under the Data Protection Act.
Our Criminal Defence Solicitors are backed by nearly four decades of experience. Our legal team of London Solicitors have a strong track record of achieving favourable client outcomes. For expert legal advice use our contact form or call us on 0808 250 6017 today.