Quashing convictions: Why a quashed conviction doesn’t automatically mean a clear criminal record

A recent court case found that the single justice procedure (SJP) was wrongly used to fast-track six prosecutions for rail fare evasion. The magistrate ruled that these convictions should be quashed.

This means that around 74,000 prosecutions for alleged rail fare evasion in England and Wales could also be quashed in the coming months, if they too were dealt with under SJP.

In general, if something is quashed it ought to be the case that any record of the original conviction be removed from someone’s criminal record. However, it is not always that simple.

What does quashing mean?

If a conviction is quashed, the conviction is deemed never to have happened.

Recently, someone got in touch with us to share their experience of having a conviction quashed. They wanted to know what this meant for disclosing their criminal record in the future.

Would they still need to answer ‘yes’ when asked if they’d ever had a criminal record?

Because the conviction is deemed never to have happened, the caller can legally answer ‘no’ – they have never received a conviction.

Criminal records are not automatically cleared

You might assume that if a conviction is overturned, it should no longer appear on a person’s criminal record. However, as with many thing about the criminal records system, it isn’t always that simple.

Astoundingly, there is no automatic process for a criminal record to be cleared in such cases.

A judge can direct the conviction to be removed from the Police National Computer (PNC) when it is quashed.

However, this doesn’t happen automatically in every case. 

No clear information on clearing a record

It is possible for individuals to apply to have information removed from the PNC.

However, there is a lack of clear information on how this can be done. (See our  Take Action Toolkit  for more information on this).

If a judge has not ordered removal, and in the absence of an automatic removal process, individuals should be advised as how to achieve this themselves, at the very least. 

Local police records

Even if a conviction is removed from the PNC, information could remain on local police records.

This creates a risk that information about an overturned conviction could still appear on an Enhanced DBS check in the police information section.

Guidance for police lacks clarity on this matter. Although the police should give someone the opportunity to make representations if such information is slated for inclusion on a certificate, more safeguards are surely needed. 

Further complications in cases with mass quashing

There are further complications where convictions are quashed in a mass case – for example the recent quashing of postmaster’s convictions in the Horizon scandal.

In the case of the sub-postmasters, their convictions were quashed because the evidence that was used to convict them was deemed void. To deal with this, legislation was passed to quash these convictions en masse.

However, there is a risk that not all criminal records will reflect the decision to overturn their convictions. The ability of individual sub-postmasters to appeal to see their quashed conviction removed from the PNC could be limited by ‘sunset clauses’ in the legislation, as individuals may have to apply to see their criminal record wiped even though the convictions have been quashed. These time limitations could impact whether criminal records are indeed cleared.

(Unlock commented on this issue earlier this year.)

The digital aspect

An individual’s digital footprint is extensive. There is no guarantee that online information about the original conviction is removed if that conviction is overturned. Information can be found even if searches are not that specific, and we know that many employers conduct online searches before offering applicants a job.

Those with less common names (for example people with non-Anglicised names) are particularly vulnerable here. 

What needs to change

• Consistently applied, automatic processes
  More consistency is required. Strong consideration should be given to automatically expunging information from the PNC in these cases. Relying on proactive action to achieve this is insufficient. The onus should not be on the individual to further clear their name.The case of the ‘Turing pardons’ further highlights the need for an automatic process when convictions are overturned. In 2016 specific offences that criminalised homosexuality were deemed to be void and people convicted under them became eligible for pardons. However, people had to proactively apply for the pardons. For a variety of reasons, some people were less likely than others to seek a pardon. The convictions are therefore still on those people’s criminal records, even though the ‘offence’ has been overturned. 

• Clear information
  There is an obvious case for clearer information on this issue. Employers and others should understand what questions they can ask and what information to expect in return. Those with overturned convictions should be given clear information on what this means for their criminal record. 

• Guidance for police
  Guidance for police regarding information added to Enhanced DBS checks should be explicit that overturned convictions be disregarded. This would be preferable to relying on either individual police forces keep this in mind or on individuals to highlight this through making representations. 

• Removing online information
  Finally, historical online information undermines the criminal records regime’s principle that spent convictions be forgotten in most cases. Pro-active action should be taken to ensure that online material concerning original convictions be removed if convictions are overturned. Limitations are also needed to prevent employers or other organisations from taking account of information about overturned or quashed cautions or convictions.