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The Government has appealed the High Court ruling from January 2016. The case, alongside others, was heard in the Court of Appeal in February 2017 with a judgement expected a couple of months after.

For more latest news, you can:

  1. see the posts at the bottom of this page
  2. click here for a full list of news posts
  3. sign up our mailing list to receive updates by email
  4. follow the latest on Twitter using the hashtag #dbsfiltering

 

The problem

The Government reluctantly introduced a ‘filtering’ process in May 2013 to comply with a Court of Appeal ruling (later looked at by the Supreme Court).

However, we don’t think that it’s goes far enough, and we want the Government to amend the filtering system so that it goes further.

We were involved in a legal challenge in 2015 – the judgement was issued in January 2016. Read our press release here and the media work we did here.

 

What we think needs to change

Since the filtering scheme was introduced in 2013, it’s helped many people with old and minor criminal records to be free of the stigma and discrimination that so many face when they have something on their criminal record.

However, the current system doesn’t go far enough: it is blunt, restrictive and disproportionate. We want the Government to amend the filtering system so that it helps more people with old and minor convictions.

As things stand, a criminal record is for life, no matter how old or minor. This is despite knowing that, in particular, young people make mistakes when they’re young. In essence, young people should be allowed to fail. Ways to properly and fully ‘wipe the slate clean’ for minor offending should be established.

Recent measures to ‘filter’ minor disposals for certain types of employment checks are limited and only came about due to legal challenges. We would like to see the Government establish a system that makes sure old and minor convictions and cautions are not disclosed on criminal record checks. This would apply to multiple convictions, more offence categories than currently covered by filtering, and would apply to prison sentences too.

 

Recommendations for young people

As part of the SCYJ’s work on childhood criminal records, we have made recommendations as part of their Growing up, Moving on campaign. The recommendations relevant to DBS filtering are that:

  1. All under-18 cautions are automatically filtered out after a two year time limit.
  2. There is no limit on the number of under-18 convictions that can be filtered out providing they did not result in a prison sentence, and providing that four years have elapsed since the last conviction. The police have discretion as to whether or not to filter under-18 convictions that resulted in a prison sentence providing four years have elapsed since the end of their last sentence or order.
  3. Police guidance should make it clear that if a person has any unspent convictions, none of their convictions should be filtered.
  4. Guidance to police should be amended, setting out the presumption that under-18 police intelligence is not disclosed.
  5. Ten years after the end of the sentence or order for the last offence committed, convictions or cautions received as a child should be wiped from the Police National Computer (PNC) and Police National Database (PND) and may not be disclosed by police as part of an enhanced check. So wiping is only available if a person has not reoffended for ten years. A similar recommendation was made by the Home Office report, ‘Breaking the Circle’ in 2002, and more recently by the Lord Carlile inquiry which proposed that children who have offended be given a ‘clean sheet’ at 18, meaning that previous offences would be expunged from their record rather than only filtered (this would not be available for homicide, serial sexual offences and other violent crimes).

 

Other recommendations

We believe there is an opportunity to learn from elsewhere:

In September 2015, the Scottish Government introduced a filtering system for old/minor convictions. Although this system is not ideal, critically they have introduced a ‘review process’ by way of an ‘application to a sheriff’ that allows those with a spent conviction for an offence on the “rules list” to apply to a sheriff to have this information removed from their disclosure certificate if they think it is not relevant to the role for which they have asked for the disclosure. More information here.

In March 2016, the Department for Justice in Northern Ireland introduced a criminal records filtering review scheme which includes an opportunity for independent review. Despite this system having its limitations, it nevertheless provides a strong basis for a similar process to be introduced in England & Wales.

In April 2015, Unlock’s Co-director, Christopher Stacey, published a report entitled Rehabilitation and Desistance vs Disclosure – Criminal Records: Learning from Europe. This followed a study into the approaches of France, Spain and Sweden and how they dealt with criminal records. The report makes a number of recommendations.

 

What we’re doing

We’re currently involved in a legal challenge to the DBS filtering process. In January 2016, the High Court ruled that the criminal record disclosure system was disproportionate.

As part of our work on this issue, we’re still collecting evidence of the ways in which the filtering system doesn’t go far enough.

Following on from the Supreme Court judgement in Twe’ve been looking to pull together examples of where the DBS ‘filtering’ process doesn’t go far enough.

In short, the Supreme Court ruling applied specifically to the system in place before May 2013, when no filtering process existed. Since then, the DBS has introduced a system set up by the Home Office, but we know from our Helpline, and from the results to a Freedom of Information request that we made, that the system doesn’t go far enough.

As a result, we’re continuing to push for the Government to widen the filtering provisions. As part of this work, we’re looking for examples that show that the filtering system introduced in May 2013 doesn’t go far enough.

We’ve identified four key areas of the system that rules a lot of people out of benefitting from it, which are on the borderline of the existing rules.

If you think your situation fits into one of these categories, we want to hear from you!

Types of examples we’re looking for:

  1. If you have two (or more) ‘offences’ as part of one conviction – We’d like to hear from you if you’ve only been to court once, but you were charged for two ‘counts’ which would be eligible for filtering if the system wasn’t limited to ‘one conviction/offence’.
  2. If you have two separate convictions – We’d like to hear from you if you have two separate convictions, which if the system wasn’t limited to ‘one conviction’, would be eligible for filtering. In particular, we’re particularly keen for examples where one conviction was when you were under 18 and one when you were over 18.
  3. If you were cautioned or conviction of certain offences that are not eligible – We’d like to hear from you if you’ve been cautioned or convicted for a ‘borderline’ offence which falls into the list of offences that currently cannot be filtered. Examples might include:
    1. Assault occasioning ABH (s.47 Offences Against the Person Act 1861)
    2. Robbery (s.8 Theft Act 1981)
    3. Loitering for purposes of prostitution (s.27 Sexual Offences Act 1992)
  4. If you received a short prison sentence or a suspended sentence – We’d like to hear from you if you’ve been given a suspended sentence, or a very short prison sentence, which would be eligible for filtering if the rule didn’t exclude convictions which resulted in a prison sentence.

 

Any of the above apply to you?

If your situation fits into one of the above, we want to speak to you. The more examples we get, the better chance we have of getting the filtering process changed in the future.

You can get send your details to policy@unlock.org.uk.

In your email, please send us:

  1. Your name
  2. Your date of birth (we need this to calculate your age at the time or conviction or caution)
  3. Contact details (email and telephone) and how you’d be happy for us to contact you
  4. Which example above you think your case fits into
  5. The details of all your cautions/convictions including the dates (if you have a copy of your criminal record, please send us a copy)
  6. How the continued disclosure of this has caused you difficulties in the past, and/or how it continues to cause you problems

Any personal details that you send us will be entirely confidential and will not be shared outside of Unlock without your express permission.

For more details on sending your details to us, click here.

 

Case studies

There are personal stories about DBS filtering on theRecord, our online magazine, including:

 

Other interesting cases

 

Latest news

The latest on this issue can be found at the top of this page. You can also find below the latest from Twitter, using the hashtag #dbsfiltering (although we cannot endorse what gets displayed here).

 

Useful links, resources and publications

A simple guide to filtering of spent cautions and convictions (Unlock’s Information Hub)

Law Commission project – Non-disclosure of certain criminal convictions and cautions (February 2017)

Letter to Secondary Legislation Scrutiny Committee (April 2013)

Filtering old and minor convictions – Effect of the case of T (Unlock, February 2013)

Submission to the Criminal Records Review – Phase 1 (Unlock, December 2010)

Our Proposed Filtering Approach (Unlock, October 2010)

Unlock Member Briefing – A Balanced Approach – Independent Review by Sunita Mason (Unlock, March 2010)

Recommendations to the Independent Review of Policy on Retaining and Disclosing Records held on the Police National Computer (Unlock, February 2010)

Member Submissions to the Independent Review of Policy on Retaining and Disclosing Records held on the Police National Computer (Unlock, February 2010)

 

For more information

  1. Practical self-help information  – We have guidance on the DBS filtering process on our information site
  2. Personal experiences – We have posts relating to our work to challenge the DBS filtering process on our online magazine, theRecord
  3. Discuss this issue – Share your views and experiences on our online forum

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