The 'filtering' rules were introduced by the Government in 2013 following a successful legal challenge brought by a group of people whose criminal record certificates included very old and minor cautions and convictions which were not at all relevant to their employment, but which they had to disclose.
At the time of the legal challenge where a person was working in a job which entitled their employer to full disclosure of their criminal records (on standard or enhanced criminal record certificates, also known as Disclosure and Barring Service certificates or DBS certificates) the criminal record certificate included all cautions and convictions no matter how old or minor. The need to disclose those old and minor cautions and convictions was a source of deep shame, embarrassment and distress which the claimants argued was a disproportionate infringement on their right to respect for private life (Article 8 of the European Convention on Human Rights).
Happily, they succeeded in their legal challenge and the filtering rules were introduced in an attempt to achieve a more proportionate balance between the right to individual privacy and the wider societal need to protect children and vulnerable adults by the disclosure of criminal records.
The filtering rules have effect of 'filtering out' some cautions and convictions after specific time periods so that they are no longer disclosed on standard or enhanced DBS certificates. Importantly, filtered cautions and convictions are not deleted altogether – they still form part of the person’s criminal record.
In general, the filtering rules are as follows:
- Reprimands (the childhood equivalent of a caution), will be filtered after two years
- Childhood convictions will be filtered after five and a half years
- The reprimand or conviction is for an offence that will never be filtered (see below)*
- Cautions given to people 18 or over will be filtered after six years
- Convictions of people 18 or over will be filtered after 11 years
- The caution or conviction is for an offence that will never be filtered (see below)*
- The conviction resulted in a custodial sentence (including a suspended sentence)
- The person has more than one conviction (in which case all convictions will be disclosed)
*Cautions and convictions for certain more serious offences will never be filtered and will always be disclosed on criminal record certificates (see the list of offences that will never be filtered). The list includes certain sexual offences, serious offences of violence, and offences relating to the supply of drugs.
Whilst the filtering rules were a huge improvement upon the previous system, whereby all cautions and convictions were disclosed, it has been subject to criticism due to some unfair results that it produces. For example, a single instance of shoplifting where more than one item was taken can result in more than one conviction, which would never be filtered. Other criticisms levelled at the filtering system include that it does not take account of how long ago the person might have received the caution or conviction (query whether convictions for theft of a bike 30 years ago are relevant to an application for teaching job), and nor does it take into account personal circumstances at the time (such as the fact that children in the care system are disproportionately likely to come into contact with the police, resulting in a higher rate of childhood criminal records amongst this group).
In June 2018 the Supreme Court heard the Government’s appeal in a long running case about the disclosure of criminal records. The Government argued that the filtering rules are fair and that they strike the right balance between the right to individual privacy and the wider societal need to protect children and vulnerable adults by the disclosure of criminal records. The individual appellants argued that the current filtering system should be extended, for example to take account of how long ago the caution or conviction was received, the serious of the offence or offences, the circumstances of the person at the time of the offence or offences and whether they have offended again.
The Bindmans Public Law team intervened in support of the indivduals on behalf of Unlock, the national charity for people with convictions. Read what happened here.
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