New legislation has been introduced which will mean that minor and historic offences will no longer appear on enhanced and standard criminal record certificates. Under the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013, certain offences will be filtered from certificates issued by the Disclosure and Barring Service.

The development follows a far-reaching judgment of the Court of Appeal on 29 January 2013 in R (on the application of T and another) v Secretary of State for the Home Department. It was held in that case that certain provisions regarding criminal records under the Police Act 1997 and in an Order made pursuant to the Rehabilitation of Offenders Act 1974 were in breach of Article 8 of the European Convention on Human Rights.

Under the new rules, an adult conviction will be removed from a criminal record certificate if the following criteria are met:

  • The offence is not one listed on a list of 700 offences including those relating to terrorism, firearms, sexual offences, supply of drugs, serious assaults and aggravated burglary;
  • 11 years have elapsed since the date of conviction;
  • The offence did not result in a custodial sentence; and
  • It is the person’s only offence.

An adult caution will be removed after the elapse of six years, providing the offence is not one of those listed.

The criteria are crude but it is difficult to see how they could be otherwise: with no practical possibility of assessing the seriousness a person’s offending on a case-by-case basis, it was clear that hard lines would have to be drawn and this is what the Government has done.

On 24 May 2013, the Supreme Court granted the Home Secretary permission to appeal the Court of Appeal’s decision. Notwithstanding this, the Government were clearly sufficiently concerned about the risk of compensation claims to rush through the new legislation. The hearing before the Supreme Court is due to take place on 24 – 25 July 2013.