Criminal records

The retention of information about people who have come in contact with the criminal justice system is used for the detection of crime, crime prevention and safeguarding children and vulnerable adults.

However, this information should only be retained and disclosed for as long as is necessary and proportionate.

Spent convictions

The Rehabilitation of Offenders Act 1974 outlines when different convictions become “spent”. Once a conviction is “spent”, the person will not need to disclose that conviction to anyone.

When someone is sentenced to less than two and a half years in prison, or to a non-custodial sentence, this conviction becomes spent within a specified period of time (between six months and ten years) provided that the person does not reoffend during that time.

Further information on how convictions become spent can be found on the fact sheet: Disclosure of convictions.

However, when checks are done for people who want to undertake certain types of employment, it works differently. This is for particular jobs working with children or vulnerable people.

If a person wants to apply for one of these positions, they can be required to reveal all convictions – both spent and unspent – and any cautions. The list of work for which an employer can require this detailed level of disclosure is extremely long, and has grown significantly. For example, it now includes doctor's receptionists, dental nurses and stewards at a football grounds.

Criminal Records Checks

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, which holds records of a person's convictions and cautions.

Further information 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 along with any other 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 that never resulted in an arrest.

Further information can be found on the fact sheet: Enhanced DBS checks.

Under the Protection of Freedoms Act 2012, a person can make representations to the Disclosure and Barring Service before a criminal record check is sent to their prospective employer. This would allow an individual to challenge incorrect information included on their record.

Before May 2013, all cautions and convictions were automatically disclosed on standard and enhanced criminal records checks. This system was judged to be disproportionate and in breach of Article 8 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.

In the case of R (on the application of P) v The Secretary of State for the Home Department, Liberty’s client challenged the rule that anyone who has more than one conviction – regardless of the minor nature of the offences, how long ago they were committed, and the person’s circumstances at the time – is required to disclose them forever when applying for certain types of work. The Court of Appeal declared this rule unlawful under Article 8 of the Human Rights Act, the right to a private and family life.