LCCSA Briefing Note – Disclosure of Criminal Records

PUBLISHED February 8, 2019
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LCCSA BRIEFING NOTE
DISCLOSURE OF CRIMINAL RECORDS
The recent decision of the Supreme Court in the case of P, G & W V Secretary of State for the Home Department [2019] UKSC 3 considered the criminal records disclosure regime. Now is therefore a good time to remind practitioners of the main points of the disclosure regime and to summarise the effect of the decision.
There are two disclosure regimes that operate in parallel to each other – one under the Rehabilitation of Offenders Act 1974 (ROA) and the other under Part V of the Police Act 1997. The former governs when an individual has to “self-disclose” their criminal record and the latter governs disclosure of an individual’s criminal record via the various certificates issued by the Disclosure & Barring Service (DBS).

In summary, the ROA regime stipulates that an individual does not have to disclose the existence of convictions or cautions on their record after a certain amount of time, known as a “rehabilitation period”, has elapsed since the case was disposed of. After the expiration of the rehabilitation period the offence becomes “spent” and need not be disclosed. The length of the rehabilitation period is dependent upon the way in which the case was disposed of. The main rehabilitation periods are here:
Sentence		 Rehabilitation Period
Over 18 at date of conviction Under 18 at date of conviction
4 years’ imprisonment or over Never spent Never spent
Community Order & Youth Rehabilitation Order Full length of the Order plus 1 year Full length of the Order plus 6 months
Fine 1 year 6 months
Conditional Discharge Full length of the discharge period Full length of the discharge period
Simple Caution or Youth Caution Spent immediately Spent immediately

http://www.legislation.gov.uk/uksi/2002/233/contents/made and (2) The Police Act 1997 (Criminal Records) (Amendment) Regulations 2006 (SI 2006/748) http://www.legislation.gov.uk/uksi/2006/748/contents/made and (3) Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013(SI 2013/1200) http://www.legislation.gov.uk/uksi/2013/1200/contents/made). The rules created by the disclosure regime are known as the “filtering” rules and, in summary, operate as follows:
 A caution received when 18 years of age or over will not be disclosed if six years have elapsed since the date of issue and if it does not appear on the list of specified offences which must always be disclosed.
 A caution received when under 18 years of age will not be disclosed if 2 years have elapsed since the date of issue, but only if it does not appear on the list of specified offences which must always be disclosed.
 A conviction received when 18 years of age or over will not be disclosed only if 11 years have elapsed since the date of conviction, it is the only conviction on record and it did not result in a custodial sentence and does not appear on the list of specified offences which must always be disclosed. If there is more than one conviction on record, for any offence, then details of all convictions will be disclosed.
 A conviction received when under 18 years of age will not be disclosed only if 5.5 years have elapsed since the date of conviction, it is the only conviction on record and it did not result in a custodial sentence. Even then, it will only be filtered if it does not appear on the list of specified offences which must always be disclosed. If there is more than one conviction on record, for any offence, then details of all convictions will be disclosed.
 
The filtering rules under the Police Act 1997 mirror those in relation to “protected” convictions and cautions under the ROA, therefore they apply to self-disclosure as well as disclosure by the DBS.
For a full list of offences that will never be filtered follow this link: https://www.gov.uk/government/publications/dbs-list-of-offences-that-will-never-be-filtered-from-a-criminal-record-check
The Supreme Court in the P, G & W case found the rule that stipulates that all convictions must be disclosed if there is more than one conviction to be disproportionate and incompatible with Article 8 ECHR. It also held that the disclosure of reprimands / warnings / youth cautions was also disproportionate and incompatible with Article 8 ECHR. Practitioners should note however that the decision does not alter the operation of the disclosure scheme as it currently stands. Further legislation will be required to enable that to happen and the LCCSA will be pressing for meaningful reform in this area.
Edward Jones
LCCSA Law Reform Officer
01.02.19

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