If you have been convicted of a criminal offence or have accepted a caution, you are probably wondering how it is going to affect your future. Beyond the sentence given by the court, your conviction will form part of your criminal record. Your criminal record can impact many areas of life, from job applications to applications for housing and the process for obtaining visas to enter foreign countries should you wish to travel abroad. The way in which information about criminal offences is stored and retained in England and Wales is somewhat complex. It can be difficult to know what information an employer may discover about a caution or conviction that you received, even if the matter in question took place many years ago. This article explores where criminal records are kept and who has access to them. It also looks at how long offences remain on your criminal record and whether spent convictions show up. Finally it explores the procedure for viewing your own criminal record. What is a criminal record and where are they kept?
A criminal record is the information that the police hold about you in relation to convictions for criminal offences. There are two different types of criminal record in England and Wales. ACRO Criminal Records Office is a national police unit that holds information about convictions, cautions, and other criminal penalties such as fines and acquittals at trial. ACRO also plays a role in linking criminal records with biometric information such as fingerprints and DNA. The Police National Computer (PNC) holds and shares the criminal records held by ACRO with law enforcement agencies across the UK.
In addition, local police forces also hold information about individuals who have been investigated in relation to criminal offences, even if they have not been convicted of an offence. For example, if you live in London, your local police force is the Metropolitan Police. Say you have been arrested on suspicion of assault. You were interviewed but released without charge. In those circumstances, ACRO would not hold any information about you, but the Met would hold some information about you pertaining to their investigation. This could include a custody record, an interview record, and notes relating to evidence gathered in the case.
The information on your ACRO record usually shows up in a criminal record checks, with some exceptions. For example, cautions for certain non-violent offences will be filtered after six years, which means that they would no longer show up on a disclosure and barring service (DBS) check when you apply for a job. In addition, certain convictions and cautions also become ‘spent’ after a period of time, which means that you no longer need to declare them, when, for example, applying for a mortgage or insurance. If you fail to disclose an unspent conviction, you could be prosecuted.
Unlike ACRO information, local police records will not always show up on criminal record checks. For example, if your prospective employer applies for a standard DBS check on you, local police information will not show up on it. However, if you apply for a role that involves working with children or vulnerable people, such as a school teacher or a social worker, you will have to undergo an enhanced DBS check. An enhanced DBS check may show relevant local police information in addition to information held by ACRO. This means that if you were accused of a crime, even if you were not convicted, the information may show on an enhanced DBS check.
ACRO makes the Police National Computer available to various law enforcement agencies and regulatory bodies across the UK. These include:
ACRO states that they only disclose this information ‘for the specific purpose of supporting prosecutions and legal proceedings, security checks, misconduct proceedings or fitness-to-practice hearings.’
In addition, the Disclosure and Barring Service (DBS) has access to criminal records for the purpose of conducting employer criminal record checks. When an employer applies to the DBS for a check, your employer would then receive details of any convictions or cautions on your record, which are not subject to the filtering rules explained below.
Under the Rehabilitation of Offenders Act 1974 certain convictions and cautions become ‘spent’ after a period of time. This period of time is known as the ‘rehabilitation period.’ The length of this period depends on the type of sentence the offender received and the age of the offender at the time of conviction.
For example, a fine given to an adult becomes spent one year after it was imposed. A custodial sentence of three years imposed on an adult becomes spent after seven years. Serious offences, such as those receiving life sentences will never become spent. More information in respect of the timeline for different sentences becoming spent can be found here.
The effect of a conviction or caution becoming ‘spent’ is that the individual no longer has to declare it for most purposes, such as when applying for insurance or housing. However, even spent convictions and cautions will still form part of your criminal record.
How long offences stay on your criminal record is a surprisingly complex question, which has been considered by the courts several times in recent years. Just because a conviction or caution has become spent, it does not mean that it disappears from your criminal record automatically. Your ACRO record will contain all the convictions and cautions that you have ever received. However, if your employer applies for a DBS check against you, certain convictions and cautions may be ‘filtered’. This is a process by which certain historical cautions or convictions may no longer appear on your employer DBS check. As of November 2020, warnings, reprimands, and youth cautions will no longer automatically be included on your DBS check.
There is a list of offences for which cautions and convictions will always be disclosed on the certificate; these include violent and sexual offences, or those relevant to safeguarding children or vulnerable people. These are known as specified offences. Convictions resulting in a custodial sentence will always be disclosed on a DBS check, no matter how much time has passed.
Cautions for non-specified offences that are more than six years old will no longer show on your DBS certificate. Convictions for non-specified offences, received when over the age of 18, which did not result in a custodial sentence and which are more than 11 years old will not show on your DBS certificate. For example, a conviction for theft that is more than 11 years old, where the offence did not include violence and did not result in a custodial sentence, would be subject to the filtering rules.
Some jobs, for example those relating to national security, do not use the DBS process. Instead, those employers have direct access to the PNC. For these types of jobs, the filtering process does not apply, and all convictions and cautions no matter how old will be disclosed.
You have a right under data protection laws to apply to see what information the police hold about you. To obtain this information, you need to complete a subject access request. You can do this yourself or you can instruct a solicitor do this for you. If the police hold information about you that is of a sensitive nature i.e. it relates to an ongoing investigation of a crime or its disclosure may jeopardise national security, then it is possible that they may refuse to disclose the information to you. If this happens to you, you can contact a solicitor to explore your options for challenging the refusal to disclose.
There are two different subject access requests that you may wish to make to see your criminal record. To see your criminal convictions, you should complete a subject access request to ACRO. If you would like to know what information your local police force hold about you, you should direct your query to that police force. Local police forces hold information about criminal investigations even if they did not lead to a conviction. For example, information will be held if you are arrested in relation to a crime but the investigation did not result in a conviction.
If you would like to challenge the result of a disclosure and barring service check, or another check relating to your criminal record, contact Stuart Miller Solicitors today. Our team of specialist solicitors will provide you with robust and accurate advice on your case, including information on your options to challenge any unjust disclosure if that applies. Contact us for a no obligation consultation.