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are essential, but the current laws on disclosing criminal records, and what information shows up on DBS checks, are outdated, disproportionate and creating unnecessary problems for hundreds of thousands of people.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.”
Maureen received her conviction at 21. Her younger sister was being verbally abused by a neighbour, and Maureen intervened and eventually shoved the man away. He fell and grazed his hands, and Maureen pleaded guilty to assault occasioning actual bodily harm (ABH). She was fined £80 and then moved on with her life.
A few years later she became a dinner lady. She disclosed her criminal record when she was recruited, and again whenever she needed a new DBS check. Each time she followed the rules, explained what had happened to the employers and they accepted that the record was not a concern.
However, when a new company took over her employers, they requested new DBS checks for all staff, and decided that Maureen’s conviction from 35 years ago made her “too much of a risk.” They terminated her employment.
Now Maureen has to find a new job, and not only explain her criminal record but also
why she was sacked by her last employer. Even after 35 years, her conviction continues to stop her
from living a normal life.
When he was 17, Amir was part of a group of young men who assaulted another man. Amir did not attack the man himself, but was prosecuted as part of the group and received a six-year prison sentence. He was released after three years and his family moved to a new area to get a fresh start.
Amir went to college and completed qualifications in IT and business, and then ran his own IT company from home carrying out repairs and delivering training. He continued to improve his skills and earned higher level certifications, with the aim to join a larger company.
12 years after leaving prison, Amir was offered a position in the training department of a large and prestigious accounting firm. When Amir disclosed his conviction, his line manager initially told him that his conviction wasn’t relevant but Amir never heard anything more from the employer.
Amir reached out numerous times, asking for an update, but these were ignored. After three months
Amir directly contacted the director of HR. She informed him that the company had a policy of not
employing anyone with an unspent criminal record.
She didn’t know why that was the case, and there was no written policy, nor did she know why Amir
had been forced to wait so long. Amir never joined the company.
I was so proud when I was offered the job and I thought what a great example I could be to others like me – yes, I went to prison but I worked hard and turned my life around. It seems like I’ll never be allowed that chance though, my conviction will never be spent, I’ll have to tell employers about it forever. I’ve got nearly 40 years of working life ahead of me – when will I get the chance to move on?
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.”
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.
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.
The Government amended the filtering rules in November of 2020, removing these two from the system and
allowing tens
of thousands of people to move on from their criminal records for good.
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
When you click ‘Send’, our website checks the address details you have provided to find out who your
local MP is. We then send
the letter to your MP’s email address, along with your details so that they know you are from their
constituency. Your MP may
reply to you directly with their views and any action they plan to take, but if you don’t hear back at
this point don’t worry.
Stay in touch with #FairChecks for updates on the next steps towards reforming the criminal records
regime. If you would rather
speak to your MP directly you can visit them in person – all MPs have timeslots each week for appointments
with constituents.
Find your MP here https://www.parliament.uk/mps-lords-and-offices/mps/
