Clients who are investigated for the first time often worry that if they are given a caution or are convicted, then they might never be able to get a job because they will have to disclose the caution/conviction or worry that they have a criminal record. An additional worry is that those cautions and convictions will appear on any checks done by the Disclosure and Barring Service (DBS). An employer/potential employer can request that a DBS check be carried out, and such a check will highlight any convictions or cautions which might be relevant to the employer. Exactly what shows up on the check is explained below.
Firstly, there is a difference between a criminal record and what shows up on a DBS check. There is no strict definition of a criminal record. On the one hand, a criminal record could be, quite simply, a record of all interactions that a person has had with the criminal justice system (e.g. all occasions when a person has been arrested, cautioned, charged, convicted etc.) All of these interactions appear on the Police National Computer (PNC), and as such there is a record of them. However, what people tend to mean when they talk about a criminal record is whether a person has any convictions or out of court disposals (cautions, youth cautions, community resolutions etc.)
When it comes to DBS checks, there are two different types; the rules for each are different:
1. Standard Check
Josh from our Crime department explains:
One comforting thing about DBS checks is that not everything that is on your criminal record shows up on a standard DBS check.
There are criteria for convictions and cautions to be filtered out. For example, an adult conviction (i.e. a conviction for an offence committed when the offender was 18 or older) will be removed from a DBS certificate if:
- 11 years have elapsed since the date of conviction; and
- it is the person’s only offence, and
- it did not result in a custodial sentence
Even then, it will only be removed if it does not appear on the list of offences which will never be filtered from a certificate, knows as prescribed offences. These prescribed offences are serious offences, largely but not exclusively involving violence and sexual offences.
A full list of prescribed offences can be found here. If a person has more than one offence, then details of all their convictions will always be included.
Cautions are slightly different. An adult caution will be removed after 6 years if it does not appear on the list of offences relevant to safeguarding.
For those under 18 at the time of the offence, the same rules apply as for adult convictions, except the elapsed time period is reduced to 5.5 years. Similarly with youth cautions, the elapsed time period is shorter than for adult cautions – namely, 2 years.
2. Enhanced Check
As you might expect, there is a different process for an Enhanced DBS check. These are only needed by certain professions such as where the employee is to be in sole charge of children or vulnerable adults, or where there are questions as to someone’s suitability for a role (for example, the General Medical Council might want to check whether a doctor has ever been a drug dealer).
There is an additional process, whereby the PNC is searched, and anything that the police deem “relevant” can be included. This could include any offences for which a person was interviewed and not charged, or charged and not convicted.
The police will often contact someone for whom an enhanced DBS check has been requested, and there will be the opportunity for that person to make representations to the police that various items on the PNC are not relevant. If this should happen, you should contact a solicitor who will be able to provide you with assistance in this.
Do “spent convictions” show up?
We often get asked about what happens to spent convictions, so it is worth noting what these are, and what the process is for disclosing these. After being convicted of an offence, there is a period of time after which that conviction no longer needs to be disclosed. After this period of time has elapsed, the conviction is spent. There will be some situations where even spent convictions will need to be disclosed, for example if applying for a visa. If you are worried about whether you should disclose something or not, then seek advice.
The exact period of time after which a conviction becomes spent depends on the offence and the sentence given. Again a comprehensive list is not suitable for this blog, however, if you have any questions, do not hesitate to contact us.
The key point to note is once a conviction is spent, it does not have to be disclosed by the person who was convicted. The fact that a person’s conviction is spent does not wipe it from their criminal record (remember, criminal records are a list of all interactions that a person has had with the criminal justice system). They can also appear on a standard or enhanced DBS check.
If you wish to discuss anything covered in this blog please call us on 0191 232 9547 or take a look at the services offered by our award winning Crime Team which is led by Brian Hegarty. We have offices in Newcastle upon Tyne and South Shields.