Even if you have never been convicted of a crime, employers and authorities can find out information about you, such as police cautions, using Disclosure and Barring Service (‘DBS’) checks.
...who may have had only minor interactions with the criminal justice system, and who may have long since moved on with their lives.
A criminal record can affect employment opportunities, volunteering roles, housing rights and even traveling abroad.
In some situations, checks on people's pasts are essential, but the current laws on disclosing criminal records, and what information shows up on DBS checks, are outdated, disproportionate and creating unnecessary problems for hundreds of thousands of people.
When Anita was 11, she set a toilet roll alight in a school bathroom causing around £100 of damage. She was arrested for arson. Later, after months of being bullied in secondary school, she was involved in a fight. She and the other pupil were both arrested. Anita was encouraged by the police to accept a reprimand rather than challenge it in court and was told it would come off her record in five years.
Growing up and taking on a teaching degree, Anita was shocked when she was almost thrown off the course due to these adolescent offences. Ever since, she has battled to find employment in the UK – eventually being forced to work abroad.
Now nearly in her thirties, she’s a qualified English teacher. However, not only was her record not removed like she was told it would be, but her two reprimands come up on enhanced DBS checks and will under the current rules for the rest of her life.
Every application form for this profession in the UK requires her criminal offences to be revealed – regardless of how long ago it was – by ticking a box on the application before interview stage.
“I’m constantly punished for mistakes I made when I was young – over half my life ago, I have not been given another chance.”
In the summer of 1986, when Laura was a 19-year-old student, she undertook some extra shifts in a pub where she worked part-time. She failed to stop claiming supplementary benefit whilst doing this extra work and was charged for the offence. The benefit was repaid along with a £90 fine.
Under current law, the offences still appear on DBS checks because she was convicted of more than one offence. This is because she wrongly claimed supplementary benefit three times during the period in question, not because she repeated the offence after conviction.
Laura has had a successful career in the public sector, but every recruitment process has been plagued by this conviction from three decades ago. At one interview she was greeted with the words “so you’re our criminal…”.
Fear of dragging up her past meant Laura turned down the opportunity to help at her son’s scout troop, as she could not face discussing the conviction with people she knew.
“I have never been able to move on from a mistake I made when I was 19. It feels very wrong to me that I continue to have a criminal record for one offence over 30 year's ago which I have to declare and discuss despite it having no relevance to who I am today.”
In 1981, when he was 17, Michael was convicted of theft of a coat from a market stall. He was fined £30. Ten months later, 23 days after turning 18, he was convicted of stealing a motorcycle and driving without insurance. He was fined £50 and sentenced to 24 hours at an attendance centre.
That was 36 years ago; he’s come a long way since then. However, Michael’s past has come back to haunt him. Under the current system, Michael’s criminal record will be disclosed for the rest of his life because he has two convictions.
He’s concerned that his family might learn of the convictions and that his work as a finance director and project manager might require due diligence checks or engage the Financial Services Authority aspects of the scheme for disclosure of convictions on a standard DBS check. He could lose his job and a career that he’s worked hard for.
Peter was convicted of Actual Bodily Harm 37 years ago, after acting in self-defence protecting a pregnant woman from assault. Although the magistrates said his actions were commendable, he had broken the law and so received a 1-year conditional discharge and a fine of £75. He was 18 years old at the time.
According to the current system, this type of offence has to stay on his enhanced criminal records check forever. Peter works in private education where he has to declare his conviction annually, something he is embarrassed about even though the school are already aware. And he thinks it’s ruled him out of jobs in the past.
“I know on at least five job applications I have met every detail of the job specification, but because I was honest, I never even got an interview! Surely after 37 years I shouldn't have to declare the offence on a DBS. I am completely rehabilitated, a happy family man who made one error when I was 18 years old.”
In the 1960’s, aged 16, Richard was prosecuted for possessing cannabis and was given a one-year conditional discharge. The offence was a one-off mistake when he was approached by a dealer the police wanted to trap. Richard got into trouble again while a student a few years later, when he was convicted of taking an item of food from a warehouse where he worked stacking shelves. He was given a one-year conditional discharge and put the mistake behind him.
After fifty years of good behaviour, Richard understood that his record was clear. However, approaching seventy, he suddenly discovered that the police were still listing his youthful mistakes as criminal convictions on an enhanced DBS check. Richard feels he is being punished for things that happened decades ago.
“People like me are shackled with old records they cannot get deleted. This creates a problem that never goes away. We have lost faith in the capacity of people to learn from their mistakes and to change for the better.”
There can be various things recorded by the police. When we refer to a criminal record, we mean convictions (and other disposals given by a criminal court, such as absolute discharges) and formal simple cautions that people have accepted from the police.
The criminal records disclosure regime is complex and has a number of aspects to it. It is summarised below and more details can be found at hub.unlock.org.uk.
The Rehabilitation of Offenders Act and ‘spent’ convictions
The Rehabilitation of Offenders Act (ROA) 1974, as amended in 2014, is the foundation of the criminal records disclosure regime in England and Wales. The Act enables certain criminal records to become spent after a specified period of time, based on the sentence an individual receives. For example, if an adult receives a 4-month prison sentence, it will become spent 2 years after the full 4-month sentence, provided no further convictions happen in the meantime. There are more details on how the law works at hub.unlock.org.uk/roa and www.disclosurecalculator.org.uk.
Once spent, a caution or conviction no longer has to be disclosed when applying for most jobs, or for things like insurance. Unspent convictions are those that have either not yet become spent, or never will.
Subject to specified exceptions, it is unlawful for employers to take spent convictions into account when considering someone’s suitability for employment or volunteering. Employers, insurers and housing providers can ask about unspent convictions and there is no legal protection against discrimination due to an unspent conviction.
Roles exempt from the Rehabilitation of Offenders Act
There are a number of jobs and roles that are exempt from the ROA. The ROA 1974 (Exceptions) Order 1975 includes medical, pharmaceutical and legal roles, high level positions in financial services, as well as jobs working with children or vulnerable adults, and a few others. For these roles, the Exceptions Order allows spent convictions and cautions to be requested and taken into account (although since 2013, this is subject to the DBS filtering process explained below).
Disclosure and Barring Service checks
The Disclosure and Barring Service (DBS) is a Home Office-sponsored non-departmental public body that processes requests for criminal record checks in England and Wales.
Criminal records checks – often called DBS checks - may be requested by employers as part of pre-recruitment checks for paid work or volunteering. There are three categories of criminal record checks:
Standard and enhanced checks can only be requested if a role is eligible. Knowingly requesting a check at a higher level than necessary is a criminal offence under Part V of the Police Act 1997.
Although an individual can apply for their own basic check, standard and enhanced checks require a form to go via the employer or third party ‘umbrella body’ before it is submitted to the DBS. When the individual receives the DBS certificate, this is passed on to the organisation requiring the check. There is no way for an applicant to preview the information that will appear on their certificate, nor can they appeal against the disclosure of a conviction or caution (although they can apply for an amended certificate if it is inaccurate).
DBS filtering process
In the past, standard and enhanced DBS checks disclosed all convictions and cautions on the Police National Computer. In 2013, the Court of Appeal ruled this 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.
Following the judgment, the government introduced a filtering system that operates on rigid, ‘bright line’ rules, with no right of appeal against disclosure decisions.
A simple flowchart setting out the filtering rules can be found at hub.unlock.org.uk/filtering
For those 18 or over at the time of the offence
An adult conviction will be removed from a DBS certificate if:
Even then, it will only be removed if it does not appear on the list of offences which will never be filtered from a certificate. If a person has more than one offence, then details of all their convictions will always be included.
An adult caution will be removed after 6 years have elapsed since the date of the caution – and if it does not appear on the list of offences relevant to safeguarding.
For those under 18 at the time of the offence
The same rules apply as for adult convictions, except that the elapsed time period is 5.5 years.
The same rules apply as for adult cautions, except that the elapsed time period is 2 years.
Supreme Court judgement
In January 2019, the Supreme Court ruled that two aspects of the criminal records disclosure scheme are disproportionate and in breach of Article 8 of the European Convention on Human Rights; in particular, the blanket rules which require the automatic disclosure of all convictions where a person has more than one conviction, and the requirement that some childhood cautions be disclosed indefinitely.
We are calling for the government to reform the disclosure of criminal records – so minor and very old crimes do not appear on on standard and enhanced criminal records checks and so that those who have turned their lives around are not forced to reveal their convictions long after they have served their sentence.
We are calling on the Home Office and the Ministry of Justice to launch to a major review of the legislation on the disclosure of criminal records. Given the importance of understanding the experiences of those with criminal records (and other points of view) we believe the review should be an open policy making process as recommended by the Cabinet Office.
This means engaging with a broad range of experts and people with experience (more information about open policy making is on the government's website
https://www.gov.uk/guidance/open-policy-making-toolkit/getting-started-with-open-policy-making
It is ultimately the government that has to make changes to the law. The responsibility for the criminal records regime rests with the Ministry of Justice (they are responsible for the Rehabilitation of Offenders Act 1974, which governs how long people have to disclose their criminal record for) and the Home Office (they are responsible for the Police Act 1997, which governs how long criminal records show up on checks issued by the DBS).
Because it is the government that has to make changes to the law, we need the support of MPs.
You can help by getting the support of your local MP. The first step is to use this website to send them a letter letting them know that a fair criminal records system is important to you.
You can also share your submission with friends and family and encourage them to write to their own MPs.
This is just the start of the journey towards a fairer criminal records system. We’re creating a movement so that we can go further together. Tick the box when you submit your letter to stay updated by email about the #FairChecks movement and how you can support the next stage.
This movement is being led by Transform Justice and Unlock, with the support of 89up.
Transform Justice is a national charity campaigning for a fairer, more humane, more open and effective justice system. Transform Justice promotes change through generating research and evidence to show how the system could be improved, and by persuading practitioners and politicians to make those changes. Visit the Transform Justice Website
Unlock is an independent award-winning national charity that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence. A key part of the charity’s work is to advocate for change and push for reforms to the criminal records disclosure regime. Visit the Unlock website
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