When an investigation has concluded, whatever the outcome, a frequently asked question is “is this the end of the road as far as this incident is concerned?” While the answer may be yes in relation to the incident in question, criminal records, including non conviction information, can linger on police databases and affect an individual’s prospects for years to come. New guidance, the Retention and Disclosure of Criminal Records, published by the Home Office on the 18 October 2012 seeks to clarify the issues.
In order to understand the guidance, it is important to understand the type of information held by the police. There are two types: records of convictions, cautions, reprimands, warnings and arrests which are held on the police national computer (PNC) and records detailing so called “soft” intelligence such as information gathered in the course of a criminal investigations. This is held on the police national database (PND).
The significance of these records comes to bear for individuals when they are investigated for subsequent offences or when, for example, they apply for certain types of employment. In respect of employment, it is well known that the Rehabilitation of Offenders Act 1974 (ROA) entitles a person who has been convicted, cautioned, reprimanded or warned in respect of an offence to consider that spent after a certain period of time. Once a record is spent the individual does not need to disclose that historic conviction. In fact it is unlawful to ask an individual about their spent conviction in some circumstances.
Certain jobs are excepted from the provisions of the ROA, for example professional occupations such as lawyers, accountants, health professionals. In those cases details of convictions may be discovered when a CRB check is conducted since the CRB check contains an extract from the information recorded on the PNC. In the context of financial services, individuals identified as “approved persons” carrying out controlled functions on behalf of an authorised firm are excepted from the protections of the ROA, and a CRB check can be made against them.
For some positions an enhanced CRB check can be required. Generally these are positions working with children or vulnerable adults. An enhanced check includes the same level of information as a standard check together with local police intelligence from the PND.
The new guidance has been introduced in response to an amendment to the law brought about by the Protection of Freedoms Act 2012 which came into force on 12 September 2012. This Act introduces an objective test in respect of whether intelligence should be placed on the PND, and introduces a mechanism by which records on the PND may be challenged. This is a relatively small improvement but it is one to be applauded for bringing a degree of accountability to the process. The change is part of a wider review of the criminal records landscape by Sunita Mason, the Independent Adviser for Criminality Information Management, which has made broader and bolder recommendations such as recommending the filtering out of minor or old convictions. The Government is currently considering her proposals.