Any professional, businessperson or student who has been convicted of or cautioned for a criminal offence, or who has been arrested or the subject of a police investigation, will understandably be concerned about how this can affect their future. Such events can have serious implications for those who work, or plan to work, in regulated sectors or who need to travel abroad.
We can advise on whether and when disclosure should be made, and assist with representations to, and challenges to the decisions of, regulators, professional membership and licensing bodies, employers, the Police, the Disclosure and Barring Service (‘DBS’), the Information Commissioner’s Office and immigration authorities.
Investigations and arrests
When an individual is arrested, a “nominal” record for that individual is created on the Police National Computer, which means that the individual concerned will from then on have a “criminal record”. Fixed Penalty Notices or Penalty Notices for Disorder may also be placed on the Police National Computer. This record is usually retained until the individual’s 100th birthday. A separate Police National Database is used to record details of ‘soft’ police intelligence and may include information on acquittals and details of criminal investigations that did not lead to a conviction, or details of offences which are not recordable.
Kingsley Napley can assist individuals in understanding what information is held about them through the making of a Data Subject Access Request (‘DSAR’), and whether and when such information is likely to be disclosed. We can also advise on whether they can seek to have this information (and any biometric information such as fingerprints) removed as part of an application to the ACRO Criminal Records Office, or an exercise of personal data rights under GDPR and the Data Protection Act 2018
Kingsley Napley can also assist with representations to the police and DBS about disclosures that are made on Enhanced Criminal Record Certificates and further challenges to such disclosures by way of raising a dispute with the DBS, an appeal to the Independent Monitor or, ultimately, Judicial Review.
If the police refuse to delete the criminal event history from the PNC, court action can be taken in the form of a claim under the Data Protection Act 2018.
Cautions, warnings and reprimands
As with arrests, information relating to cautions, warnings and reprimands will appear on the Police National Computer.
Pursuant to the Rehabilitation of Offenders Act 1974, cautions become spent as soon as they are administered (unless they have conditions attached to them, in which case they become spent after 3 months or when the caution ceases to have effect, whichever is earlier). A spent caution will not appear on a Basic Criminal Record Certificate issued by the DBS, but may be disclosed following a Standard or an Enhanced criminal record check depending upon the age of the caution and the offence for which the individual was cautioned. It is possible in certain limited circumstances to expunge a caution, warning or reprimand from a person’s criminal history by way of an application to the ACRO Criminal Records Office. An application to expunge a caution, warning or reprimand is a complex process and requires specialist advice. Such an application will only succeed if it can be demonstrated that there was either a flaw in the process followed by the police when the caution was administered that is sufficient to render the caution, warning or reprimand unlawful, and/or that continued retention of the caution, warning or reprimand on the person’s record is disproportionate.
If the police refuse to expunge the caution, this decision might be capable of being Judicially Reviewed.
Judicial Review is a multi-stage challenge to the police’s decision to refuse to expunge the caution. At the pre-action stage a letter will be written to the relevant police force outlining why the refusal to expunge is unlawful. If the police do not concede at this stage, a court challenge may be a viable option depending on the facts of the case. You may be able to recover some of your litigation costs if you are successful in your claim for Judicial Review. If you are unsuccessful, or denied permission to apply for Judicial Review, then you may be liable for the police force’s costs of defending the claim.
If the police agree to expunge the caution, it will be removed from your criminal record.
Court Convictions
Information relating to convictions will appear on an individual’s Police National Computer record and will remain there until the individual’s 100th birthday, at which point it will become “stepped down” i.e. only visible to law enforcement authorities. It is currently not possible to remove convictions from a person’s PNC record save in very limited circumstances, such as the disregards and pardons scheme for historic same-sex sexual activity convictions.
Certain convictions may become spent after a certain period of time pursuant to the Rehabilitation of Offenders Act 1974. A spent conviction will not appear on a Basic Criminal Record Certificate, but may be disclosed following a Standard or Enhanced criminal record check depending upon the age of the conviction and the offence. This is because a different set of rules governs when a conviction becomes spent and when it will be “filtered” from DBS certificates.
The only means by which an individual is usually able to have their conviction removed from their record is if they successfully appeal against it to a higher court. There is a separate process governing appealing a conviction. Details about how Kingsley Napley can assist with such appeals can be found on our appeals and miscarriages of justice page.
Disclosure and Processing of Criminal Record Information
Kingsley Napley can assist with:
- DBS and police procedures relating to disclosure, challenges to decisions of the DBS, and judicial review of decisions of the Independent Monitor;
- Disclosure of criminal activity to regulators, and professional membership and licensing bodies;
- Disclosure of criminal activity to immigration authorities, and preparing visa and immigration applications where criminal activity falls to be disclosed;
- Advising employers who have been made aware of the criminal activity of an employee or prospective employee;
- Advising organisations on the storage, retention and processing of personal data relating to criminal activity under GDPR and the Data Protection Act 2018.
Challenging Decisions Made on the Basis of Criminal Record Information
Kingsley Napley can assist with:
- Challenging decisions of the DBS to put individuals on the barred lists on the basis of convictions, cautions, or accusations that did not lead to a criminal conviction or caution. The barred lists prevent individuals from working with children and/or vulnerable adults;
- Representing in, and advising on, regulatory and complaints processes, and challenges to the decisions of regulators and professional membership and licensing bodies;
- Disciplinary processes and challenges to decisions of employers;
- Challenging refusals of visas and immigration applications where the refusal is made on the grounds that the applicant has been convicted of a crime or otherwise involved in criminal activity.
Privacy and the ‘Right to Be Forgotten’
In the digital age, organisations often turn to search engines and other online tools to obtain information about individuals. If such information is inaccurate, out of date, irrelevant or of insufficient legitimate interest to the user of the search engine or online tool, an individual may be able to exercise their right to rectification or their right to erasure (‘right to be forgotten’) to have this information amended, delisted, or removed. It may also be possible to have personal data relating to spent convictions, spent cautions, or investigations that did not result in a conviction delisted or removed if it appears online.
Advice and funding
Advice in relation to criminal records, disclosure and related challenges is only provided by Kingsley Napley on a privately funded basis. We do not offer public funding (‘legal aid’) or conditional fee (‘no win, no fee’) agreements as funding options in connection with this work.
