The retention and disclosure of criminal records

Information held by the police

Criminal records information is held on two main systems. The first is the Police National Computer (PNC), which records details of convictions, cautions, reprimands, warnings and arrests. The second is the Police National Database (PND), which records “soft” local police intelligence, for example details of investigations that did not lead to any further action.

Chief constables “own” the data that their force has entered on to the PNC. They can exercise their discretion, in exceptional circumstances, to delete non-court disposals (e.g. cautions) which are owned by them and held on the PNC as well as any non-conviction outcome. Individuals can, in some circumstances, apply for the removal of a record from the PNC.

Criminal records checks

Cautions, reprimands and warnings and some convictions become “spent” after a certain period of time. Once a record becomes spent it does not usually need to be declared to employers or voluntary organisations. When a person applies for a so-called “excepted position”, they may be required to provide details of their criminal record, both spent and unspent, by way of a standard or enhanced criminal records check from the Disclosure and Barring Service. Excepted positions cover, for example, work with children or vulnerable adults or roles in certain licensed occupations or positions of trust.

The information in this briefing about disclosure relates to England and Wales. For information about Scotland see Disclosure Scotland and for information regarding Northern Ireland see AccessNI.

A standard check contains details of all spent and unspent convictions, cautions, reprimands and final warnings (as held on the PNC) except those which, under the filtering rules, should no longer be disclosed (see below). An enhanced check includes the same information as a standard check together with details of relevant and proportionate non-conviction information, for example details of arrests recorded on the PNC or police intelligence recorded on the PND. Disclosure of such information is not automatic but is done on a case-by-case basis following the exercise of police discretion.

The disclosure of non-conviction information and old and minor convictions

There has been some debate over two particular issues relating to criminal records checks: the disclosure of non-conviction information and the disclosure of old and minor convictions.

The Government legislated, via the Protection of Freedoms Act 2012, to introduce new safeguards relating to the disclosure of non-conviction information, such as a new independent disputes process.

Legislation introducing a new filtering mechanism to restrict the disclosure of old and minor convictions came into force in May 2013. This followed a Court of Appeal ruling in January 2013 that the mandatory and blanket disclosure of convictions as part of a criminal records check was incompatible with Article 8 of the European Convention on Human Rights (right to respect for private life).

A judgment of the Supreme Court in January 2019 said that two specific aspects of the filtering mechanism, concerning multiple convictions and the disclosure of warnings and reprimands received by children, were disproportionate and therefore incompatible with Article 8. The Government amended the filtering rules in November 2020 to remove the automatic disclosure of youth cautions, reprimands and warnings and the ‘multiple conviction’ rule.

Calls for wider reform of disclosure

There have been calls for wider reform of criminal records disclosure, including from the Law Commission, the Justice Committee, Charlie Taylor in his review of youth justice and David Lammy in his review into the treatment of and outcomes for BAME individuals in the criminal justice system.

The Government in its September 2020 White Paper, A Smarter Approach to Sentencing, said that it wanted to “go further on criminal records disclosure to support those who offended in the past to move on with their lives and in particular to improve access to employment for those with criminal records”. In addition to the changes to the filtering rules, the Government proposed changes to the rehabilitation periods that govern the length of time before a conviction becomes “spent”.