Criminal Records Disclosure

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

This project is complete. On 1 February 2017 we published our report with recommendations.

Non-disclosure of certain criminal convictions and cautions

In July 2016 we were requested by the Home Office to review one specific aspect of the criminal records disclosure system, known as “filtering”.

In very simple terms, the filtering system provides a framework which regulates when an individual has to disclose convictions and cautions even though they are spent. The scheme was introduced so that an individual who would otherwise be required to disclose all of his or her criminal offending history for certain purposes (such as working with children or vulnerable adults, or applying for or maintaining membership of a particular profession) would not be required to do so if the convictions were for old and minor offences.

The filtering system has been in place since 2013, but there are certain offences which are never filtered – for these offences, even though the conviction has become spent, the offender will be obliged to reveal it for certain purposes. The offences that will always have to be revealed are known as “non-filterable” offences. The list of these offences is what the Home Office asked us to assess.

The purpose of this project was to:

1. simplify and clarify the operation of filtering;
2. ensure the system deals effectively and comprehensively with conduct that presents a safeguarding risk;
3. avoid the system compelling the disclosure of minor offences where that is unnecessary.

Our terms of reference expressly limited our review to changes that could be achieved using only secondary legislation.

Background

Under the Rehabilitation of Offenders Act 1974, individuals are not required to disclose convictions and cautions once they have become ‘spent’ – i.e. a certain period of time has passed.

However, there are some circumstances in which disclosure of spent convictions or cautions can be requested.

This is known as asking an ”exempted’ question”. Exempted questions can be asked, for example, to ensure the safeguarding of children or vulnerable adults or to ensure that people holding other positions of trust are suitable to do so.

Most exempted questions asked are answered through the production of a Criminal Record Certificate issued by the Disclosure and Barring Service (DBS), although it is not mandatory to obtain a Criminal Record Certificate in order to be able to answer any one exempted question.

Prior to 2013, all convictions and cautions recorded on the Police National Computer (PNC) – spent or otherwise – had to be disclosed in answer to an exempted question, and therefore on a Criminal Record Certificate.

The mechanism for ‘filtering’ old and minor convictions and cautions was introduced in 2013.Certain offences are never subject to filtering and are therefore not removed from criminal record certificates issued by the DBS.

These offences are set out in section 113A(6D) of the Police Act 1997 (the “list of non-filterable offences”) and include serious offences of violence, sexual offences and offences against children and vulnerable adults.

What we did

We considered:

• the statutory framework that sets out the existing system
• current problems with both the existing legislative provisions and the operation of the non-filterable list of offences in practice
• what offences are currently listed and whether the list requires revision
• what reforms could be suggested within the confines of this narrow project to address these problems.

We were also asked by the Home Office to assess the potential need for a wider review of the system of criminal records disclosure.

Our conclusions

• Our principal conclusion is that the legislation governing filtering is hard to understand and inaccessible to users.
  • The drafting is convoluted, particularly in the Police Act 1997.
  • The list of non-filterable offences exists in two places in legislation and is mostly made up of references to different lists of offences in other pieces of legislation. These are not readily available to non-lawyers.
  • There may be uncertainty as to what is and is not on the list of non-filterable offences at any one time, as the content of each of these different lists may change from time to time.
  • The language used in the legislation is difficult to understand, which is especially problematic given that it is being relied on by people who are not legally trained.
• Overall there appears to be a lack of a principled basis for the inclusion of individual offences in the list.
• There is an apparent lack of coherence and a number of potential inaccuracies within the version of the list used by DBS, created for operational purposes.
• There is uncertainty for individuals about what will be disclosed on a criminal record certificate – especially as there is no way for individuals to view certificates in advance.
• There is no direct channel for complaining that, because the version of the list used by DBS is potentially inaccurate, an offence has been wrongly included on a certificate.

Recommendations

Our overall conclusion is that simply introducing a new statutory instrument to create an ‘improved’ list of non-filterable offences is unlikely to produce the best solution to the broader problems with the system.

We believe that there is a compelling case for a wider review of disclosure system as a whole.

Within the narrow confines of this project, we recommend that a statutory instrument should set out a single, itemised list of non-filterable offences in the future.

This list should be updated by amending the legislation in which it is contained.

The non-filterable offences should be listed individually by name and section, without reference to lists in other legislation.

The legislation should, however, continue to include some general provisions about particular types of offences, where those provisions can be easily interpreted.