Unconvicted – The Disclosure Of Minor Convictions And Cautions

In February this year we reported on the Court of Appeal decision in R (T and others) v Greater Manchester Police in which the Court found that elements of the regime for disclosure of past criminal convictions represented a disproportionate interference with the right to a private life under Article 8 of the European Convention on Human Rights.

It was clear that the case would require the Government to reconsider the regime for disclosing criminal convictions and to introduce a system for dealing with minor convictions and cautions where the relevance to the job was questionable. Legislation to give effect to the decision in England and Wales came into effect on 29 May this year and the Government has now produced guidance for employers on the changes to the regime.

The key points are that:

Certain old and minor convictions will be 'filtered' from the record for the purposes of Standard or Enhanced DBS certificates (although they will remain on the record held on the police national computer). Such convictions will no longer be disclosable under the provisions of the Exceptions Order to the Rehabilitation of Offenders Act; There is no change to the obligation on an individual to disclose to a prospective employer in full any serious, violent or sexual offences where the individual is applying for a role which is exempt from the provisions of the Rehabilitation of Offenders Act; Employers should amend their applications forms to take account of the changes and to ensure that job applicants are answering questions correctly. The regimes

There are in effect two separate filtering regimes - one for cautions and one for convictions.

A caution or cautions received as an adult (18+) will be eligible for filtering as long as:

the caution was not for an exempt offence; and six years or more have elapsed since the caution/cautions were issued. A reprimand/reprimands or a final warning/warnings (received under the age of 18), will be eligible for filtering as long as:

the reprimand/final warning was not for an exempt offence; and two years or more have elapsed since the reprimand/final warnings were issued. A conviction for a criminal offence as an adult will be eligible for filtering as long as all of the following criteria apply:

There is only one conviction; The individual did not receive a prison sentence or suspended prison sentence for the conviction; The conviction was not for an exempt offence; and 11 years or more have elapsed since the...