‘Enforced subject access’ (under section 184 of the Data Protection Act 2018) prevents employers from requiring people to use their subject access rights under the DPA to provide certain records, such as police records, as a condition of employment. It also prevents contracts from requiring certain records as a condition for providing or receiving a service, such as housing or insurance. Requiring people to provide these records will become a criminal offence, punishable by a fine. In England and Wales the maximum financial penalty on summary conviction in the magistrates’ court is £5,000 (soon to be unlimited). On indictment in the Crown Court the fine can be unlimited.
We’ve long argued that section 184 needs to be brought into force, but this wasn’t ever possible until reforms to the Rehabilitation of Offenders Act 1974 were brought in on the 10thMarch 2014. Section 184 came into force on the 10th March 2015.
For people with convictions, this is an important development. Although it doesn’t prevent employers and others from getting access to criminal records through legitimate means, what section 56 does do is prevent the use of significant amounts of sensitive personal data that can be disclosed as part of a subject access request.
In the past, we’ve come across examples where employers, insurers, education providers and housing providers have required people provide copies of their police record by applying to the police and paying £10 for a subject access request. This type of request discloses all information held on the Police National Computer, including convictions and cautions that are spent, as well as allegations or other ‘local police information’.
The introduction of section 184 will enable a clearer message to be given to any organisation that is found to be undertaking this type of practice. The legislation only allows requirements of this type where the record is required by law or is justified in the public interest.
Frequently asked questions
No. It means that an employer can’t make you do a ‘subject access request’ under the Data Protection Act to get a copy of your police record.
What you should do will depend on the reason for the request. For example, if it’s for a job that would be eligible for a standard or enhanced check, then you might advise them of that. If not, then it might be that they’re only allowed to ask you to do a basic disclosure. Ultimately, you should be able to refuse to do it. Use the guidance above to help you. Either way, if you have evidence of them requiring you to do an enforced subject access, send us the details.
This is the phrase that is used to describe the process of obtaining a copy of the records that organisations hold on you. In this context, it’s mainly referring to you obtaining a copy of your police record.
Yes. This means that insurers will no longer require you to provide a copy of your police record. Instead, if they do require any form of official record of unspent convictions, they may ask you to consent to a basic disclosure.
Yes. It applies to any individual or organisation that ‘requires’ you to do a subject access request. For example, housing associations will no longer be able to require you to obtain a copy of your police record.
Yes. In guidance to schools it’s been made clear that they cannot require individuals to obtain police records of either themselves or those that live or work in the same household as them.
Yes. Under the 2003 Licensing Act Guidance (4.6) Regulations, in order to substantiate whether or not an applicant has a conviction for an unspent relevant offence, a licensing authority can, for the granting of a personal licence request a criminal conviction certificate, a criminal record certificate (both of these are basic DBS checks), or the results of a subject access search of the Police National Computer by the National Identification Service to the licensing authority. This means that whilst an enforced subject access request is now illegal, it can be requested for the granting of a personal licence. We would always recommend that when applying for a personal licence, you provide a basic DBS check rather than a SAR which would disclose the details of all convictions rather than just those which are unspent.
The issue of overseas convictions is a complicated matter. Historically, the sharing of information about convictions obtained overseas has been quite patchy, although it has improved significantly in recent years.
For example, for convictions issued in courts within the EU, there is now a system for sharing this information between Member States; the European Criminal Records Information System (ECRIS). ECRIS, which came into effect in 2012 is an electronic exchange mechanism created in response to EU Framework Decisions providing a legal basis for the exchange of criminal conviction information between EU Member States, some of which have been in effect since 2005.
For convictions issued in courts in non-EU countries, it is possible that these will also be notified to UK Authorities and subsequently recorded on the Police National Computer (PNC). However, unlike exchanges that occur between the 28 EU Member States, there is no single, international agreement which requires all countries of the world to share conviction information albeit such sharing is permitted under INTERPOL exchange protocols.
Do overseas convictions appear on the PNC?
There is no simple answer to this; it depends upon a number of different factors i.e. whether the offence for which the person was convicted is a crime under UK law and if so, whether or not the conviction is for an offence which is deemed to be a recordable offence in the UK.
For UK Nationals, any offence where there is a UK equivalent can be added to the PNC provided that offence is deemed to be a recordable offence. For Non-UK Nationals, the PNC may be updated in certain circumstances as detailed in the EU Framework Decision 2009/315/JHA, or subject to INTERPOL exchange protocols.
Which UK authorities are responsible for ensuring that information about overseas convictions is recorded on the PNC?
Within the ECRIS framework, the ACPO Criminal Records Office (ACRO), is designated as the United Kingdom Central Authority for the Exchange of Criminal Records (UKCA-ECR) and accordingly, ACRO receives notification from EU Member States when a UK national is convicted of an offence in another EU country. Relevant information relating to the convictions will then be entered onto the PNC if an equivalent recordable offence exists in England and Wales. Details of all non-recordable offences notified to ACRO are stored on a local database.
Information about UK nationals who are in non-EU country is managed by ACRO. The Non-European Union Exchange of Criminal Records team (NEU-ECR) has responsibility for exchanging criminal conviction information with INTERPOL countries and for ensuring that information relating to convictions received by UK nationals in non-EU countries is entered onto the PNC and other UK law enforcement systems. The NEU-ECR also manages updates to the PNC with foreign conviction data provided by the National Offender Management Service (NOMS) and the Foreign & Commonwealth Office (FCO). For further information visit the ACRO site.
Why are there two different systems relating to overseas convictions?
There are two different systems as within the EU Member States, European legislation provides for conviction exchange using the ECRIS system. However there is currently no global non-EU equivalent in terms of an information sharing protocol i.e. an agreement to which all countries of the world have signed up to.
What is ECRIS?
ECRIS, the European Criminal Records Information System, was created to improve the exchange of information relating to criminal conviction information throughout the EU. It does this by electronically connecting all Central Authorities within EU Member States to allow for messages relating to convictions to be exchanged quickly and easily using a secure electronic transfer.
Any EU country convicting a national of another EU country will be required to send information on their conviction as soon as possible to that person’s country of nationality. This requirement applies only to new convictions. However, UKCA-ECR does also seek information regarding any previous convictions from other EU states if requested to do so by UK police officers and law enforcement agencies.
What information is shared?
Under ECRIS, the EU country sharing information about a person’s conviction is required to provide a code which corresponds to the particular offence the conviction relates to (ECRIS Offence and sanction codes 2009/316/JHA). This system is designed to account for differences in domestic criminal codes across the EU countries whilst providing a general idea of the nature of offence committed. In addition, Member States provide conviction details in their native language which are automatically translated through the ECRIS coding.
When transferring this information, countries can also provide information relating to the level of participation in the offence or information highlighting any exemption from criminal responsibility which may apply under domestic criminal law in that country.
Information relating to the sentence given is also transferred at this time, using appropriate codes. Countries are able to provide further information about how this sentence or penalty was completed. This information, both the particular offence and sentence or penalty given, along with further details provided, can potentially be entered onto the PNC provided the reported convictions amounts to a recordable offence in the UK.
Responses from Non-EU countries are not received in a standard format and may include conviction history in varying levels of detail. Where sufficient information regarding the offence and sentence is received, and a UK equivalent offence can be found, this may be added to the PNC.
Plans for future developments or expansion?
The European Commission, when announcing the creation of ECRIS on its website, also indicated that the creation of a European index of convicted third-country (non-EU) nationals is also being considered, to supplement ECRIS and allow for information relating to convictions of non-EU nationals to be shared between all EU countries. This is currently being evaluated by Member States and the European Commission and a proposal will be developed.
Are overseas convictions treated differently to those received in the UK?
What is the position under the Rehabilitation of Offenders Act?
Convictions handed down in a foreign country, whether an EU Member State or a country outside of the EU are treated in the same way as those received before a British court. Section 1(4)(a) ROA 1974 indicates that the ROA applies to those convictions passed by or before a court overseas, and so overseas convictions will be treated in the same manner as convictions before British courts. Section 5(7)(f) states that any sentence imposed by an overseas court will be treated in the same way as the most closely related sentence described in the Act under Section 5.
Are all overseas convictions recorded in the same way as those received in the UK?
Not all sentences received abroad are recorded in the same manner as those received in the UK. In some countries, such as Belgium and Germany, records of convictions resulting in prison sentences of less than six months or fines of less than 500 Euros are destroyed after three years, whilst other EU countries have laws which prohibit potential employers from finding out about spent or minor convictions, with other countries not treating minor crimes punished by fines of less than 100 Euros as criminal convictions for the purposes of criminal record reports.
Whilst this information may not be recorded on the PNC, it is important to be aware of this practice if your overseas conviction was received some years ago and prospective employers or UKCA-ECR are seeking information about any convictions received overseas. For instance, if you have come to police notice in the interim, the information about the convictions you received in a foreign country, including your country of birth may have been returned in any request made by ACRO to that foreign country for your conviction information.
For further information on whether minor convictions received in a particular country will be disclosed under DBS-type checks in that country, or whether they are routinely destroyed after a set time period, it is advisable to contact the foreign embassy of that country. A list of foreign embassies in the UK is available here.
You can also find a helpful summary of the processes of retention and disclosure in the Appendix D of a report published by Sunita Mason in March 2010, which is available to download here.
For further information relating to the disclosure of convictions received in one of over fifty countries look at the ‘Related Documents’ section (on the right of this webpage) published by the Centre for the Protection of National Infrastructure.
Is it possible for an employer to discover information relating to foreign convictions which do not appear on the PNC?
A foreign conviction may not necessarily appear on the PNC. However, if you have spent a number of years in a foreign country or countries, any future employer may wish to seek further information regarding any convictions received during the time spent in this country.
There are means available to employers, or other official parties, which would allow them to obtain information relating to convictions directly from the country of origin. Some countries, such as Albania, require that any request for this information is made inside their territory, with consulates in the UK being unable to accept any such request.
How can I find out what is on the PNC?
To find out what information is held about you on the PNC, you will need to submit a police subject access request, which will disclose all information that is held about you on the PNC subject to any exemptions that may be applied under the Data Protection Act 1998. For further information see here.
We are grateful to Matthew Bown for his support in the original production of this information.
Retention and deletion of police cautions and convictions
Note – this page is about retention and deletion, not disclosure. Advice on disclosure is covered elsewhere on this site, particularly around when criminal records become spent (so not disclosed on basic checks) or filtered (so not disclosed on standard/enhanced checks)
Why is this important?
Many people are unaware that details of all recordable offences remain on the Police National Computer (PNC) until they reach the age of 100.
Cautions and convictions can only be removed from the PNC in exceptional cases and it’s important to know what those circumstances may be and how you would go about applying for them to be removed.
There is no national or formal process in place for individuals to request the deletion of a court conviction. Where a police force receives a request from an individual to delete a conviction, our understanding is that the majority of police forces would refuse.
On this page, when we refer to a “criminal record” we mean convictions, cautions, final warnings and reprimands.
Fixed Penalty Notices (FPN’s), Penalty Notices for Disorder (PND’s), findings of innocence, acquittals and other police intelligence (including allegations) is covered in the local police information section.
The current practice is for the police to store details of all recordable offences, and other specific offences, and for these to be held until the individual reaches 100 years old. What’s recorded on the PNC?
Historically, the process of retention has varied.
Prior to early 2006, the police were able to delete records from the PNC after a certain period, depending on the nature of the offence. This was possible under the old ‘weeding’ guidelines. However, the police do not appear to have deleted records on a systematic basis, and many records that were eligible for deletion were never actually deleted. If you have a CRB check (as they were known then) that you did prior to 2006 that came back clear, your offences have either been deleted or were not recorded in the first place.
In 2006, the police stopped deleting records and introduced a new policy, the ‘Exceptional Case Procedure’, which stated that all records would be held until an individual reached 100 years of age. The ‘Exceptional Case Procedure’ enabled individuals to request their records be deleted from the PNC if they felt that there were exceptional circumstances, for example if an arrest was unlawful or where it was established beyond doubt that no offence existed. At the same time, they introduced ‘step-down’, which enabled individuals to apply to have their records ‘stepped-down’ if they met the step-down criteria. This meant that they wouldn’t be disclosed on standard or enhanced DBS checks.
This step-down procedure was stopped in October 2009, following a Court of Appeal decision, meaning that information which had previously been stepped-down was reinstated back onto the PNC. If you applied for, and had your records stepped down, it is likely that they will reappear on your standard or enhanced criminal record check and your best course of action would be to discuss this with whoever is requesting the check.
Since October 2009, the police have only deleted cautions under either the old Exceptional Case Procedure (ECP) or the Record Deletion Process which was introduced in May 2015.
If you are not sure what records the police still hold, you can access your own record by doing a subject access request.
What if my conviction doesn’t show up on my police record?
Check local records
It is possible that you have only received details from the PNC. You need to see a copy of the local police records from wherever you received the conviction. It may be recorded there. This wouldn’t automatically be disclosed on a DBS certificate, but may be disclosed on an enhanced certificate.
Police recording practices
The PNC does not include every single conviction.
The police currently store details of all recordable offences (indictable, triable-either-way and some summary offences) and they keep this data until you reach 100 years old. However, in the past, the process of recording has varied which means that you may have been convicted in the past but it may not be recorded on the PNC.
In the past, the process of keeping records has also varied. Until early 2006, weeding guidelines, allowed the Police to delete records after a certain period depending on the offence. They only normally deleted records if requested, so many records that could have been deleted were not.
In 2006, the police introduced a process for filtering out information before it appeared on a criminal records check. A person could apply to the police to have information ‘stepped down’ from their standard or enhanced check. This was typically in relation to offences that were very old and very minor. The decision was at the discretion of the chief constable of each local force.
Step-down was stopped in October 2009 after a Court of Appeal decision. If you previously had information stepped down, it will now reappear on a criminal record check.
Can convictions be removed from the PNC?
The Police National Computer (PNC) currently retains all information until an individuals 100th birth date. The police are obliged, under Part V of the Police Act 1997, to provide the DBS with access to all convictions held on the PNC. There was previously a system known as ‘step-down’, but this was ended into October 2009.
You retain the right under the Data Protection Act 2018 to contact the police directly about information which is held on the PNC about you; this is often referred to as Subject Access. You can make a request to have a record deleted from the PNC together with associated fingerprints and DNA through the ‘Record Deletion Process’ which is outlined in guidance from the National Police Chiefs’ Council (NPCC) – ‘Deletion of Records from National Police Systems‘.
It is very rare for convictions to be removed under this procedure. The deletion of records from the National Police Systems is usually reserved for cases involving non-conviction information (such as unproven allegations, or findings of innocence), or where it can be proved that the arrest was unlawful or where it is established beyond doubt that no offence existed.
The only other option would be to legally appeal against the conviction (for example “I didn’t do it”). This can normally only be done within a short time period following the conviction. To do this, you should seek legal advice. Also note that, if you pleaded guilty at court, that makes appealing your conviction even more difficult.
Who owns the information?
Under the Data Protection Act, the police are the Data Owners and Data Controllers of the information on the Police National Computer (PNC). They own and maintain the information.
The DBS uses the information from the PNC to produce the criminal record certificate but cannot amend or delete information. The filtering of certain cautions and convictions from standard and enhanced certificates is determined by the DBS based on government legislation.
The Record Deletion Process provides individuals with an opportunity to have their records reviewed by the police. However, submitting an application does not automatically mean that the record will be deleted.
Where a conviction is recorded accurately, we are unaware of a case where the police have agreed to remove it under this procedure
Information provided by ACRO Criminal Records Office and set out in the table below shows that in 2017-2018, only 9% of requests to remove cautions/warnings/reprimands were approved with 18% of non-conviction information being removed.
The above figures relate to applications where a decision has been made to either approve or refuse the removal of data. The remaining numbers fall into one of the following categories:
Outstanding, awaiting a decision from the relevant police force
Outstanding, awaiting further information from the applicant
Rejected by ACRO as ineligible *
* Ineligible applications can include:
Individuals with no PNC records
Individuals who are subject to ongoing investigations
Individuals seeking the deletion of a court conviction.
You may be able to have your caution ‘expunged’ from your criminal record by applying to the police, via the ACRO Records Deletion Unit. You can do this yourself by setting out a well-argued and comprehensive reason as to why the police should consider ‘expunging’ your caution. Alternatively, you could seek legal advice.
If the police agree to ‘expunge’ your caution then the PNC will show ‘no further action’ instead of the caution. If they agree to delete the caution in its entirety then the arrest event will no longer be recorded on the PNC. It will no longer be disclosed on a standard orenhanced Disclosure and Barring Service (DBS) check. There is no standard time period to have a caution removed, and different police forces take differing periods of time to remove cautions (for example, the Metropolitan Police Force give a time estimate of around 12-18 months for a removal application to be processed).
You should be aware that even if your caution is ‘expunged’, the information held by the police force could still be disclosed under the ‘other relevant information’ section of an enhanced check, if the police feel that it is relevant and ought to be disclosed. You can challenge this decision.
Appealing a decision if the police refuse to delete a caution
There is no formal appeals process to challenge a decision made in relation to the deletion of police cautions.
If you don’t agree with the decision you should, in the first instance, make representation to the relevant police force. This should usually be done no later than 3 months from the date you received the original decision. Your representation will need to provide information or ‘evidence’ which was not provided in your previous application.
If you believe that the police are holding information that is inaccurate, incomplete or has been retained for longer than is necessary and your request to have it deleted has been refused, then you could consider making a complaint to the Information Commissioners Office.
If, having followed the process set out above, you remain dissatisfied, then you do have the right to challenge the decision by way of judicial review.
Removing information from local police records
The Record Deletion Process only extends to records held on the Police National Computer, National DNA Database and fingerprint database. Locally held records, including custody photographs, are not covered by this process and instead, are managed by chief officers in accordance with the Authorised Professional Practice (APP) – Information Management.
The personal story below has been posted on theRecord, our online magazine.
The phrase ‘recordable offence’ is used a lot when it comes to police records.
What is a recordable offence?
Generally, an offence that could result in imprisonment is classed as a recordable offence (i.e. an indictable or triable-either-way offence). There are also some more minor summary offences that are designated as recordable. This additional set of specified offences has grown over time and is now substantial.
Where a conviction is recordable, any other conviction obtained in the same proceedings will also be recorded.
Non-recordable offences are generally held on local police records although, depending on local arrangements, some non-recordable offences may also be uploaded to the PNC, particularly when dealt with at the same time as a recordable offence. An example could be when someone is convicted of driving without insurance (a non-recordable offence) at the same time as being convicted of drink driving (a recordable offence).
The Ministry of Justice used to publish a full list of indictable and trail either way offences on their website, although this is not currently available. A list of summary offences which are regarded as recordable can be found in this document, provided to Unlock by the Ministry of Justice.
Examples of specified recordable offences (non-imprisonable)
Making a false statement in connection with an application for a sex establishment licence (paragraph 21 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982)
Failure to co-operate with a preliminary (roadside) test (section 6 of the Road Traffic Act 1988)
Taking a pedal cycle without consent (section 12 of the Theft Act 1968)
Falsely claiming a professional qualification (section 44 of the Nursing and Midwifery Order 2001)
Examples of non-recordable offences
Non-payment of TV licence (section 363 of the Communications Act 2003)
Careless driving (section 3 of the Road Traffic Act 1988)
Driving without insurance (section 143 of the Road Traffic Act 1988)
Reproducing British currency notes (section 18 of the Forgery and Counterfeiting Act 1981)
Between 40-45% of all criminal offence convictions each year are for non-recordable offences.
How do I know if my offence was for a recordable offence?
The rules around what is and isn’t recordable are quite complicated, and have changed over the years.
If you are not sure whether your offence is classed as recordable or not, and so are unclear whether it’s held on the PNC, the best thing to do is to apply to your local police force for a police subject access request.
Does it matter?
The police are not able to take or retain your DNA or fingerprints if the only reason you’re arrested is for an offence which is not recordable.
Any conviction that results from an non-recordable offence is unlikely to be recorded on the PNC, unless it is alongside a recordable offence.
The National Police Chiefs’ Council Criminal Records Office (often referred to as ACRO)
For individuals that wish to emigrate to a number of countries, including Australia, Belgium, Canada, Cayman Islands, New Zealand, South Africa, and the United States of America.
They are also used to obtain a visa for immigration purposes (e.g. travel to the US for tourism purposes)
The standard service takes 10 working days and the premium service takes 2 working days, not including dates of receipt or dispatch.
However, if you are due to travel shortly, ACRO suggest that you may want to consider the premium service. However, if you have an arrest/conviction on your record and are using a police certificate to go through an approval process (such as applying for a visa to travel to the US), it is unlikely that, at such short notice, you will be able to complete the other steps in the process.
Where it is sent
It is sent to the applicant at the address requested on the application form
A sample certificate
Click the image above to increase the size.
How to correct inaccurate information
If you feel the information is inaccurate, you will need to contact your local Police Force outlining the inaccurate information. Each Chief Police Officer is the Data Controller for their PNC record, and has the ability to delete information. There is an exceptional case procedure, but this is normally confined to deleting local police information.
My police certificate doesn’t contain some details that it should / I’ve got a ‘No Live Trace’; what should I do?
If you have been arrested and/or convicted in the UK and your Police Certificate states “No Trace” or “No Live Trace” (or does not list in full your arrests/convictions), you might still be required to provide details (e.g. when applying for a visa). You may want to apply to the individual court to obtain a record of all convictions and any charges pending.
‘No Trace’ means that you have no convictions, reprimands, final warnings or cautions held on the Police National Computer.
‘No Live Trace’ means that there is criminal record information held on the Police National Computer but it has been ‘stepped down‘. Anyone who sees this and understands this phrase can assume that you have a criminal record from the past, even if they can’t see the details. If this applies to you, we advise that you contact ACRO to obtain details of the conviction information that was not disclosed on your Certificate. If you have requested a Police Certificate for travel purposes, many Embassies will require this detail in order to make a decision on whether or not they should issue you with a visa. Once you receive the undisclosed information from ACRO you will be required to contact the relevant Embassy and disclose your previous conviction/s.
Once the Embassy has this information they will contact ACRO to verify that the conviction details you have provided them with are correct. They will do this in the form of an email quoting what details you have provided and asking ACRO to confirm whether it is correct or not. ACRO can only confirm or deny what has been related by the Embassy. If the information you have provided isn’t correct, the Embassy will ask you to contact ACRO again in order to go through your conviction details so they can be re-submitted to the relevant Embassy.
The Embassies use this process to gauge honesty and integrity and whether you have presented yourself as someone of general good character.
Can I get “No Live Trace” changed to “No Trace”?
Probably not. As mentioned in the question above, people with “No Live Trace” can be concerned that others will know that this means they have a criminal records.
The step-down process is not set out in legislation – so ACRO do not legally have to operate it. For police certificates, the alternative would be a certificate that contained all convictions and cautions. Unfortunately, we think that any challenge to the fact that “No Live Trace” suggests there is a criminal record on file is unlikely to be successful.
Applications for other countries may be accepted subject to confirmation by the applicant of acceptance by the relevant Embassy, High Commission or requiring organisation
ACRO are currently piloting this initiative, which provides police certificates for visa purposes. This police certificate is issued solely for immigration purposes and shows details of arrests and convictions. It covers the whole of the United Kingdom and is sent to the address provided at the time of the application. It is different to a Subject Access Request(SAR), which can be used to find out any details held on the Police National Computer, including allegations
More information about Police Certificates is available here
ACRO still apply the principles of the step-down process when processing Police Certificates. More information on step-down is available here
Disclosure of police intelligence on enhanced checks (approved information)
Each Police Force maintains a local record of information, which can be used to disclose information referred to on a disclosure in the ‘other relevant information’ section on an enhanced check. This is formally known as ‘approved information’. It is often more commonly referred to as ‘non-conviction information’ or ‘police intelligence’.
This page aims to set out when this information is likely to be disclosed and, how to make a request to the police that they do not disclose it.
Why is this important?
‘Police intelligence’ generally relates to somebody who has never actually been convicted for the offence involved, but it may occasionally include additional information relating to a conviction.
If you have never been convicted or cautioned for a criminal offence, then there is no legal requirement for you to disclose this ‘additional information’. However, if it is disclosed on an enhanced criminal record check, then an employer may decide to take it into consideration when making a recruitment decision.
If the ‘police intelligence’ relates to a conviction, then you may find that the police will disclose more detail than you would have elected to disclose yourself.
It’s important to have an understanding of what options are open to you if the police do decide to disclose additional information about you.
What ‘local police information’ means
For the purposes of this page, local police information can include:
Fixed Penalty Notices (FPN’s)
Penalty Notices for Disorder (PND’s)
Findings of innocence
Cautions and convictions of those that you live with
Other Police intelligence (including allegations)
It does not include information held on the Police National Computer, including:
Cautions, reprimands and final warnings are not criminal convictions. However, in terms of disclosure, they are covered by the Rehabilitation of Offenders Act (which means, once spent, they do not need to be disclosed and you are protected by the ROA) and are also included in the Police Act 1997 as being disclosed on standard and enhanced checks as these are carried out for positions exempt from the ROA.
Who decides whether to disclose this information?
The decision as to whether to disclose local police information is made by the Chief Police Officer in the relevant police force area. Following the Protection of Freedoms Act 2012, this ‘decision-making process’ has two main guidance documents. These are the Statutory Disclosure Guidance, and the Quality Assurance Framework.
Guidance on how the police make the decision to include locally held information can be found here.
Statutory disclosure guidance
The statutory disclosure guidance follows on from a review of the criminal records regime conducted by Mrs Sunita Mason, the Government’s Independent Advisor for Criminality Information in February 2011. The guidance comes as a result of the Protection of Freedoms Act 2012.
The guidance came into force on 10 September 2012 and is designed to assist chief officers of police in making decisions in providing information from local police records for inclusion in enhanced criminal record certificates.
Quality Assurance Framework
The latest version the QAF is available to download from the DBS website.
Within this framework, there is detailed information available in relation to making representations against the disclosure of local police information.
How often is police information disclosed?
** Shows the number of applications where there was a match against local police records. This is known as the police local cross referencing system or PLX system.
The above figures show that, since the statutory disclosure guidance (mentioned above) came into force in 2012, the amount of ‘approved information’ disclosed on enhanced checks has decreased significantly. In the year 2013/14, information was disclosed in only 0.83% of cases where there was a match against local police records.
Trying to stop it from being disclosed on an enhanced check
While there is no real hope of getting local police information deleted from police records, there are steps you can take to try and stop it from being disclosed on an enhanced check.
If you’ve not yet applied for a job involving an enhanced check
We suggest that you make sure that you have a full understanding about the information that is held on you by the Police. If you don’t know this already, you should look to do a Police Subject Access request and ask to see any local records held. This will give you details of any local information held on you. You should also contact your local police force and ask to see a copy of their policy/process for dealing with whether to disclose information of this type. It’s unlikely that the police will tell you at this stage whether they would be likely to disclose information on a particular enhanced check.
If you’ve applied for a job involving an enhanced check
Most police forces will normally contact you if they are thinking of disclosing information in the ‘other relevant information’ section, giving you the chance to make representations. However, this doesn’t always happen, so if you think that you might have information held about you and you’re worried that it might be disclosed, you should contact your local police force. You should ask them to give you the chance to make representations if they feel the need to disclose any information. Whilst there is no guarantee that they will do this, there have been reports that asking the police to do this will lead them to doing it through fear of being challenged legally for failing to do so. If/when the police get in touch, you should make sure that you make strong representations why the information is no longer relevant.
If the police decide to disclose information, you will be sent this certificate to give to the employer. At this point, if you disagree with the decision to disclose ‘other relevant information’, you can challenge this through the Independent Monitor.
If you wish to make a referral to the independent monitor, you can complete a form on the DBS website or write to: DBS, Disputes, Customer Services, FREEPOST RTHU-TRJY-KSHY, PO Box 165, Liverpool, L69 3JD. Tel: 03000 200 190.
The DBS will refer your application to the relevant police service on behalf of the independent monitor to give the chief officer the opportunity to consider your dispute first.
If you are not satisfied with the police dispute response, your case will be referred to the independent monitor.
If you disagree with the findings of the Independent Monitor then your next step would be to seek judicial review.
The Supreme Court case of L v Commissioner of Police of the Metropolis in 2009 considered the issue of non-conviction information and what ought to be included. The Court decided that the police must strike a balance between the interests of the employer and the individual’s right to his private life. Provided the information is relevant to the position applied for and strikes this balance, it is reasonable for the police to disclose it.
Who can help
If you wish to challenge the disclosure of local police information, you should be able to go through a number of steps yourself. However, you may find the contact below useful.
Libertywere involved in the case of L (above) and have a strong interest in the civil liberties argument surrounding the disclosure of non-conviction information on a disclosure.
The legal contacts below are detailed because they have been involved in dealing with these types of cases in one way or another. It is not our aim to promote the services of legal advisors, but we do want to be able to provide information on contacts who may be able to help. You may also find the general section on legal advice in our Information Hub helpful.
John Ford Solicitors instructed Stephen Cragg and Charlotte Kilroy (of Doughty Street Chambers) to represent L in the case detailed on this page.
Slater and Gordon Lawyers have offered their services to people in these situations on a number of online forums, and so you may be able to source some help from them.
Trying to get it deleted
Under theACPO Retention Guidelines, there is an Exceptional Case Procedure for the removal of DNA, fingerprints and PNC records. As each Chief Police Officer is the Data Controller of their PNC, they have the discretion to authorise the deletion of any specific data entry on the PNC owned by them. However, this discretion is only ever exercised in exceptional cases.
Exceptional cases will, by definition, be rare. They might include cases where it can be proved that the arrest was unlawful, or where it is established beyond doubt that no offence existed. A library of circumstances have been collected by the DNA and Fingerprint Retention Project (DNAFRP) that have been viewed as exceptional cases, and this is used to assist Chief Officers by providing a bank of precedents when considering requests to remove records.
To request removal:
Write to your local police force. Ask for the record to be deleted. Ask for their policy on deletion, including what types of cases they will regard as exceptional.
You should be sent a letter informing you that the record is held lawfully and that your request is being refused unless you believe it should be regarded as exceptional. You will be invited to state the grounds upon which you believe your case is exceptional.
Write back outlining the reasons why you believe it should be deleted.
The Chief Officer should then consider your response and either reply directly refusing your request, or refer the case papers to the DNAFRP to ensure a consistent national approach. If referring to the DNAFRP, the Chief Officer will receive an informed response. He/she will then notify you of their decision.
Some forces have published their policies publicly.
Is this kind of disclosure legal?
The simple answer is yes. However, the disclosure of such information has been challenged a number of times by the courts (as discussed below) which has influenced the process that is used to decide whether information should or should not be disclosed.
There is a very good article written by Barrister Timothy Pitt-Payne covering a recent case which looked at, amongst other things, the legality and process of disclosing non-conviction information.
Guidance was previously covered in Home Office Circular 05/2005 Criminal Records Bureau: local checks by police forces, but since 24th September 2010 this has no longer been in force.
In once case which demonstrates the process that South Yorkshire adopted, they contacted the individual concerned, notifying them of the their intention to disclose non-conviction information. The letter explained the legal powers supporting the disclosure of such information, stated that they are minded to disclose the information, and then provided details of the proposed wording. The letter went on to state that the purpose of the letter was to afford the individual the right to make any representations that they consider relevant to the Chief Officers decision. The letter set a relatively tight time limit to reply (2 weeks from the date the letter was sent).
In response to this, the individual Unlock member wrote some rather detailed representations. The result was that he received a response back from the police stating that “on this occasion it has been decided not to proceed with the disclosure” and, when his check was issued, no non-conviction information was disclosed. However, it is important to note that the convictions that he had from many years ago were still disclosed, as currently this process doesn’t apply to cautions/convictions.
If you receive a similar letter proposing disclosure, or you simply want to make representations in advance of disclosure of non-conviction information, it would be sensible to look to get a copy of the Police Forces decision making process regarding non-conviction information, as well as using the statutory guidance and QAF process above, so that you are able to target your representations at elements which may affect the Chief Officers decision.
The process following L
Following the L case, many police forces have given individuals an opportunity to comment on the disclosure that the Police intend to make. As the Court in L was clear that there is no presumption in favour of disclosure, you could argue that the disclosure was not relevant to the new post/job you are seeking or that it is so old, vague, misleading or inappropriate that it ought not be disclosed at all.
If an inappropriate disclosure is made, you can challenge the quality of the information with the criminal records bureau or you can bring a judicial review in the High Court to have disclosure looked at afresh by a Judge. Time limits are tight and both steps must be taken within 3 months from the date of the certificate.
If disclosure affects your reputation, personal feelings or causes you to lose earnings (for example, if you lose your job or a promotion opportunity) you can seek damages as part of a judicial review application. Legal aid may be available.
The easiest and cheapest way to find out your criminal record is to apply for a copy of your police records from the Police.
You’re entitled to exercise your rights to obtain information that is held about you under the Data Protection Act 1998. This process is known as a Subject Access Request.
Although this relates to lots of different government agencies, in relation to the police, a subject access request is your right of access to verify the information held about you on police computers.
A subject access request to the Police National Computer will either provide a certificate stating that there is currently no information held about you on the Police National Computer, or it will provide a list of all the information held on the computer including all convictions, whether they are spent or unspent.
You can also choose to ask to see what is held locally by the Police. This can include arrests, allegations, and Not Guilty findings
This page will explain this in more detail.
Police Subject Access Request (often referred to as “Police records” )
Local police force (or ACRO, who disclose PNC data on behalf of most forces) under the Data Protection Act 1998
To establish what information the Police hold on you for your own purposes to ensure that police information is accurate.
What it contains
Details of all personal information which the Police hold on you, including what is held on the PNC and what is held on local police records (depending on what information you ask to see)
How to apply
You can apply via your local Police Force. Each police force normally has a form to complete, which is usually available online but can also be requested in writing.
ACRO provides Subject Access disclosures from the Police National Computer on behalf of most police forces in England and Wales (apart from Derbyshire, Gwent and Sussex), Northern Ireland, Jersey and the Isle of Man. Requests can be made by post or online. Details of both can be found here. ACRO also have a useful further guidance page providing additional information on SAR’s.
If you want a copy of all of your personal data, you should make sure that you request to see both PNC data and any information held locally by your local police force.
You will need to contact the Data Protection team at your local Police Force. Links are available here. Many requests relate to information held on the PNC, and the majority of these are dealt with by ACRO. Their contact details are below:
A: ACRO (SAO), PO Box 623, Fareham, Hampshire, PO14 9HR
To you only. Subject Access disclosures (Police records) are not designed to be used by employers as the provisions of the Rehabilitation of Offenders Act are not applied (see ‘Other information’)
Link to anonymous examples
How to correct inaccurate information
If you feel the information in inaccurate, you will need to contact the police force who holds the information outlining the inaccurate information. Each Chief Police Officer is the Data Controller for their PNC record, and has the ability to delete information. There is an exceptional case procedure, but this is normally confined to deleting local police information such as allegations.
Enforced subject access
It was announced in early 2014 that the final elements of the Police Act 1997 will take effect. With this comes the news that enforced subject access will be a criminal offence. This came into force on 10th March 2015. Read more here.
Even though cautions and convictions remain on the Police National Computer (PNC) until you are 100 years old, there are some situations where the police will destroy your biometric information (DNA and fingerprints). It’s important to know whether this will apply to you and how you go about making a request to the police.
Biometric information refers to fingerprints and DNA Profiles.
If you are arrested, your details will be entered onto the Police National Computer (PNC). This will include your personal details, details of your arrest and biometric information such as fingerprints and your DNA profile.
Your biometric information will be either retained or destroyed depending on whether you have been convicted or not. The table below provides further information.
Retention period for individuals convicted of an offence
Retention period for individuals not convicted for an offence
A minor offence is defined as any recordable offencethat is not a covered under the definition of a qualifying offence.
A qualifying offence is one that is more serious; a full list of qualifying offences has been set out in Section 65A of PACE which can be found here. According to ACPO there are over 400 qualifying offences.
Effect on people with convictions
The only time that fingerprint and DNA information would be destroyed is for individuals convicted of a minor offence under 18 at the time of conviction, so long as the offence wasn’t for a qualifying offence.
However, it’s important to realise that this only relates to fingerprint and DNA information – the actual conviction will remain on the PNC.
Effect on people charged
If you are charged with a qualifying offence but not convicted you can apply for early deletion of your biometric information only if you have no previous convictions. If you are arrested and charged with a qualifying offence but not convicted, your biometric information can be retained for three years.
For more information and details regarding the deletion of biometric information please click here.
An officer may only give authorisation if he has reasonable grounds for believing that a sample will confirm or disprove the person’s involvement.
A non-intimate sample is hair (that is not pubic hair); a sample taken from the nail or under nail; a swab taken from any part of the body, including a mouth swab, but not from any other body orifice; saliva and a footprint.
A non-intimate sample may be taken without consent.
An intimate sample is defined as: blood, semen, any other tissue or fluid, urine, pubic hair, dental impression or swab taken from any orifice other than the mouth.
An intimate sample may be taken from any person in police detention. An intimate sample can be taken from someone who is not in police detention but who, during an investigation, has supplied two or more non-intimate samples that have proved insufficient.
More information about whether your biometric data is likely to be on a police database can be found here
The following information regards the collection of DNA samples as part of Operation Nutmeg whereby police forces in England and Wales have been collecting DNA samples from 12,000 serious offenders who are not on the national DNA database.
Police forces in England and Wales have been pushing ahead with collecting DNA of people with convictions pre-dating 1994. Routine DNA collection was not implemented until after this.
In 2013, a legal challenge was made by a person with convictions against their police force’s request to provide a non-intimate DNA sample as he argued that the request infringed on his human rights.
The judgement decided that the request was both ‘lawful and proportionate’. There are a number of helpful aspects from the judgement:
The police must strike a balance in each case to decide whether taking a DNA sample is proportionate.
It may be that in some cases the police have required an attendance at the police station before issuing an authorisation to take DNA – this would be unlawful.
The court suggested that a person should have a chance to make representations as to why it would not be proportionate to take DNA in a particular case.
As outlined in Section 62 of PACE, an officer may authorise collection if he has reasonable grounds to believe that the sample will confirm or disprove the individual’s involvement. However in this case, the grounds for DNA collection were ‘purely speculative’ but the court ruled that this was acceptable.
For full details on this particular case, please see the article from The Independent
In another case, a 74 year old was required to attend the police station to provide a sample of DNA for a crime he committed 42 year earlier. This was challenged and on review of the case, the police force decided that it was not in the public interest or proportionate to pursue this DNA sample.
Guidelines relating to Operation Nutmeg now state:
“The purpose of this operation is to ensure that those convicted of Homicides and/or Sexual Offences have a confirmed DNA profile held on the National DNA Database and is correctly shown on their PNC record. To achieve this, forces will be supplied with details of subjects whose last known location is within their Force area. Each subject will need a risk assessment carried out to identify the high risk nominal’s and ensure that they are located and sampled at the earliest opportunity”
In January 2017, the Justice Secretary announced that thousands of gay and bisexual men convicted of sexual offences which have now been decriminalised would be posthumously pardoned. This builds on an earlier scheme that was introduced in 2012 to ‘disregard’ decriminalised sexual offences.
This page provides further information about the disregard process, which is the process that individuals have to go through.
You can find out more about our policy and campaign work on disregarding of records and pardoning gay men convicted under outdated laws
Why is this important?
Years ago, many people were convicted of offences which are no longer illegal today. Things changed after the 1967 decriminalisation act. However, if you were convicted of a sexual offence which has now been decriminalised, details of it may still appear on a formal criminal record check unless you have applied to have it disregarded.
Unfortunately, you have to proactively apply for a disregard – it doesn’t happen automatically. Many people won’t realise they have a historic offence on their record until it’s disclosed on a DBS check – at which point often the damage is done.
Many employers have little understanding of legal definitions, and so you may find yourself being refused an interview or job on the basis of having a conviction for an offence that is no longer illegal.
The coalition government made a commitment in 2010 to change the law so that historical convictions for consensual gay sex with over 16s would not show up on criminal records checks.
The Protection of Freedoms Act 2012 enabled this to happen. Under the provisions of Chapter 4 of Part 5 of the Act (s.92-101), the Home Secretary may ‘disregard’ certain convictions (which includes cautions, warnings and reprimands) for decriminalised consensual sex offences. The provisions came into force on the 1st October 2012.
Under the disregard provisions, individuals can apply to the Home Secretary for a formal disregard of their convictions. If the Home Secretary considers that a disregard is appropriate, those convictions disregarded will be deleted or annotated and will no longer be disclosed, including in certificates issued by the Disclosure and Barring Service.
The offences that criminalised consensual sex between men over the age of consent were mainly sections 12 (buggery) and 13 (gross indecency) of the Sexual Offences Act (SOA) 1956.
The following offences are covered by the process:
Section 12 or 13 of the Sexual Offences Act 1956
Section 4 of the Vagrancy Act 1824
Section 61 of the Offences against the Person Act 1861
Section 11 of the Criminal Law Amendment Act 1885
Section 45 of the Naval Discipline Act 1866
Section 41 of the Army Act 1881
Section 41 of the Air Force Act 1917
Section 70 of the Army Act 1955
Section 70 of the Air Force Act 1955
Section 42 of the Naval Discipline Act 1957
People charged under these laws will only be able to have them disregarded if two key conditions are satisfied:
The activity must have been consensual – All parties involved in the conduct constituting the offence consented to it and were aged 16 or over at the time of the offence
It must not be an offence today – The scheme does not include sexual activity in a public lavatory (which is still illegal)
How to apply
The application form and guidance notes for applicants are available to download from GOV.UK.
The process is free of charge.
What happens next?
If your application is not eligible to be disregarded you will receive a letter to that effect. In all other cases you will receive an acknowledgement that your application has been received and is being processed.
The Home Office will then contact all relevant data controllers and request them to review their records and provide copies of any relevant documents to the Home Secretary to enable a decision to be made.
Once the Home Secretary has made a decision, you will be informed of the outcome. If your application is successful, the Home Secretary will write to the relevant data controllers and require them to delete or annotate their records accordingly.
What is the effect of the disregard?
Once the Home Secretary has given notice that a conviction has been disregarded and a period of 14 days thereafter has elapsed, a successful applicant will be treated in all circumstances as though the offence had never occurred and need not be disclosed for any purpose. It means, in effect, that it’s deleted.
Those successful in the disregard process are then also pardoned by the government.
What if you disagree with the Home Secretary’s decision?
If you disagree with the decision made by the Home Secretary and either have further evidence to submit or consider that an error was made on your initial application form, you should contact the Home Office so that your application can be reviewed. If you consider that the final decision reached in relation to your application is wrong, you have the right under the provisions of the Protection of Freedoms Act 2012 to seek leave to appeal the decision to the High Court.
How many people have had their offences disregarded?
Latest figures from the Home Office show that between 1st October 2012 and 13th October 2017, the number of cases dealt with was 516. This is broken down as follows:
Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.
Home Office– The Home Office is the government department responsible for the disregard process. You can contact them by emailing email@example.com or writing to Chapter 4 Applications, Safeguarding Directorate, 5th Floor, Fry Building, 2 Marsham Street, London, SW1P 4DF.
Ministry of Justice – A government body who have responsibility for the Rehabilitation of Offenders Act.