Criminal Defence Articles

What is the difference between ‘Spent’ and ‘Unspent’ convictions?

In the UK, just as with many other places around the world, convictions are understood either to be ‘spent’ or ‘unspent’. For many people, receiving any criminal punishment makes them worry that they will be lumbered with that record for life, but thankfully this is not always the case. In the remainder of this article, we look at some key differences between ‘spent’ and ‘unspent’ convictions and explain in detail how they are shown on criminal records. This should help you to figure out whether you must disclose your record to employers, insurance agencies, and other bodies who sometimes require this information.

So, what is the difference between ‘spent’ and ‘unspent’ convictions?

The difference between spent and unspent convictions is actually relatively simple. If your conviction is ‘spent’, you have a legal right not to disclose that conviction to people like employers and insurance agencies.

If your conviction is ‘unspent’, you may still have to disclose that conviction if you are asked about any past criminal convictions or criminal record history.

What is more complicated is figuring out whether a conviction is spent or unspent, and when you might have to declare it legally.

How long does it take before a conviction is spent?

Convictions become spent once a certain period of time – known as the ‘rehabilitation period’ – has passed.

For those that received sentences of over four years, or those who received sentences for public protection, unfortunately, the conviction never becomes spent. This means it may be shown on your criminal record indefinitely.

For those sentences of four years exactly or under, the rehabilitation period varies depending on the age of the offender at conviction, the length of the sentence, and the type of sentence.

For any prison sentence, including suspended sentences, the rehabilitation period is:

 

Adult (at least 18 years old at the time of the conviction) Over 4 years, or a public protection sentence

Never spent

 

More than 30 months and less than or equal to 4 years Full sentence + 7 years
More than 6 months and less than or equal to 30 months Full sentence + 4 years
Less than or equal to 6 months Full sentence + 2 years
Community order Full length of the order + 1 year

 

Youth (under 18 years old at the time of the conviction) Over 4 years, or a public protection sentence

Never spent

 

More than 30 months and less than or equal to 4 years Full sentence + 3.5 years
More than 6 months and less than or equal to 30 months Full sentence + 2 years
Less than or equal to 6 months Full sentence + 18 months
Youth rehabilitation order Full length of the order + 6 months

How do I know if my conviction is spent?

The only way you will know if your conviction is spent is if you calculate the period of time between your conviction and the date of enquiry according to the tables above, or, of course, if you receive a copy of your DBS check and the conviction does not show on it.

There is no formal notice that a conviction has become spent (this would result in tens of millions of government letters being sent out every year!) so it is up to you (or your solicitor or adviser) to figure out the period of time that has passed since your conviction.

How long does a conviction stay on your criminal record?

Once you have been convicted, a record of this stays on the Police National Computer (PNC) forever. This means that the details of the conviction can be pulled up at any time by authorised governmental bodies and may be used in any future criminal proceedings against you.

That being said, this does not mean that the conviction will always show up on your criminal record as displayed in a DBS check. When someone applies for a DBS check, they have to select the level of disclosure required (i.e. how detailed they want the report to be). They can choose basic, standard, or enhanced levels (and sometimes they have to choose a standard or enhanced check because of the profession they are in).

Basic disclosures only show unspent convictions, which means – for most people – that offences committed a long time ago will not show up in the criminal record (unless the offences were of a particular type). Standard and enhanced checks, on the other hand, show spent and unspent convictions, unless they have been filtered out by the DBS. We address these points further down in the article.

Do you have to declare spent convictions to an employer?

The vast majority of people will not need to declare their spent convictions or cautions to an employer. This is good news for those people that see their time served as them ‘repaying their debt to society’ and now just want to get on with their lives without the conviction hanging over them.

There are, however, occasions where you must declare a spent conviction to an employer:

  • The first is where the conviction resulted in a sentence of more than four years (if it was four years exactly, you do not have to declare it).
  • The second is where the job you seek requires a criminal record check (now called a Disclosure and Barring Service (DBS) check, but formerly called a Criminal Records Bureau (CRB) check). These jobs are usually ones that relate to public safety, vulnerable groups of people, or protected interests of individuals (security of their home, financial data, and so on).

Examples of professions that require a DBS check include:

  • Social work
  • Childcare
  • Medicine and therapy
  • Accountancy
  • Legal
  • Teaching
  • Locksmithery
  • Policing
  • Veterinary work

The full list of jobs requiring a DBS check is extensive and ever-changing. Usually, you will be told early in the job application process whether you must submit to a DBS check, and what level of check it will be.

Failure to disclose a criminal conviction

DBS checks are very common in the UK. Indeed, between 2011 and 2015, there were 1,314,273 standard DBS checks and 19,188,161 enhanced DBS checks issued, with, on average, 10.24% of those checks showing criminal history. With such extensive criminal records checks being completed in the UK, failing to disclose a criminal conviction when one ought to often results in being discovered.

Whether you have to disclose legally depends on whether the job is covered by the Rehabilitation of Offenders Act 1974. If you know that the job is covered by the Act and you get asked a question about any convictions or criminal records, you should disclose unspent convictions. If the job is not covered by the Act and you get asked a question about any convictions or criminal records, you should disclose cautions or convictions that are not ‘filtered’ by the DBS (i.e. cautions or convictions that are not disclosed on a DBS check after a period of time).

As a general rule, cautions are filtered after two years if you are under 18 years old and after six years if you are 18 or over. Convictions, on the other hand, are filtered after 5.5 years if you are under 18 years old and after 11 years if you are 18 or over.

That said, there are certain offences that will never be filtered from a DBS check. These include:

  • offences involving the supply of drugs
  • sexual offences
  • offences involving violence
  • safeguarding offences

If there is no legal requirement to disclose a criminal conviction, then of course there is nothing wrong with not doing so. It is your choice whether you choose to disclose your conviction to someone like an employer, and there are no repercussions for not doing so.

If there is a legal requirement to do so, however, you should comply with that. The consequences of not doing so vary depending on who you should have disclosed to, and they may even have criminal repercussions. If you fail to disclose your record to an insurance company, for example, you may be prosecuted for fraud (for trying to obtain a benefit (i.e. cheaper insurance) to which you were not entitled).

Figuring out whether or not you have to declare a conviction is a complex and at times confusing process. If you can, get in touch with a solicitor who will walk you through the process and tell you whether you have to disclose. If you can’t access a solicitor, there are many resources online that will help you figure it out, including the highly reputable guide from Unlock, a charity that provides information on criminal convictions.

Where to get help with spent or unspent convictions

Whenever you have questions or concerns about your criminal record, one of the best things you can do is get in touch with a trusted criminal defence expert. The team at Stuart Miller Solicitors have years’ worth of experience advising clients on these matters, and our friendly non-judgemental team of criminal lawyers will help you find a clear path forward so you can worry less about your conviction and more about getting on with your life. Contact our team for a no-obligation consultation today.

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