15 October 2013

Unconvicted — the disclosure of minor convictions and cautions


Chris Priestley

Partner | UK

In February this year we reported on the Court of Appeal decision in R (T and others) v Greater Manchester Police in which the Court found that elements of the regime for disclosure of past criminal convictions represented a disproportionate interference with the right to a private life under Article 8 of the European Convention on Human Rights.

It was clear that the case would require the Government to reconsider the regime for disclosing criminal convictions and to introduce a system for dealing with minor convictions and cautions where the relevance to the job was questionable. Legislation to give effect to the decision in England and Wales came into effect on 29 May this year and the Government has now produced guidance employers on the changes to the regime.

The key points are that:

  • Certain old and minor convictions will be ‘filtered’ from the record for the purposes of Standard or Enhanced DBS certificates (although they will remain on the record held on the police national computer). Such convictions will no longer be disclosable under the provisions of the Exceptions Order to the Rehabilitation of Offenders Act;
  • There is no change to the obligation on an individual to disclose to a prospective employer in full any serious, violent or sexual offences where the individual is applying for a role which is exempt from the provisions of the Rehabilitation of Offenders Act;
  • Employers should amend their applications forms to take account of the changes and to ensure that job applicants are answering questions correctly.

The regimes

There are in effect two separate filtering regimes – one for cautions and one for convictions.

A caution or cautions received as an adult (18+) will be eligible for filtering as long as:

  •  the caution was not for an exempt offence; and
  • six years or more have elapsed since the caution/cautions were issued.

A reprimand/reprimands or a final warning/warnings (received under the age of 18), will be eligible for filtering as long as:

  • the reprimand/final warning was not for an exempt offence; and
  • two years or more have elapsed since the reprimand/final warnings were issued.

A conviction for a criminal offence as an adult will be eligible for filtering as long as all of the following criteria apply:

  • There is only one conviction;
  • The individual did not receive a prison sentence or suspended prison sentence for the conviction;
  • The conviction was not for an exempt offence; and
  • 11 years or more have elapsed since the conviction.

If a conviction does not meet all of the above criteria, it will continue to be disclosed on a Standard or Enhanced DBS disclosure.

Conviction for a criminal offence as a juvenile will be eligible for filtering as long as all of the following criteria apply:

  • There is only one conviction;
  • The individual did not receive a prison sentence, suspended prison sentence or a detention order for the conviction;
  • The conviction was not for an exempt offence; and
  • 5½ years or more have elapsed since the conviction.

If a conviction does not meet all of the above criteria, it will not be eligible for filtering and will continue to be disclosed on the Standard or Enhanced DBS disclosure.

How should job application forms be amended?

The Ministry of Justice is recommending that the following question is put to job applicants to take account of the change in the law:

‘Do you have any convictions, cautions, reprimands or final warnings that are not “protected” as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)?’

Charities that follow that suggestion may wish to provide job applicants with guidance as to what convictions, cautions, reprimands and final warnings are protected, as set out in this briefing.

Whether the ‘filtering’ system introduced by the Government will be nuanced enough to meet the concerns identified in the Court of Appeal’s judgment remains to be seen. However for the time being charities should be aware that they are no longer entitled to insist on ‘unfiltered’ disclosure of past criminal records. Should they become aware of matters that should, under the new rules have been filtered out, they should not take those matters into account on making recruitment decisions. For example, it would be unlawful to use a ‘protected’ caution inadvertently disclosed by one job applicant as a tie breaker when endeavouring to choose between two otherwise equally qualified candidates.

Chris Priestley

Partner | London

Category: Article