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In April 2018 the High Court ruled on two cases involving individuals with spent convictions that brought claims against Google for refusing to de-list search engine results. One case was successful (NT2) and the other failed (NT1).

There are possible legal remedies for the online publication of spent convictions – find out more

We are still encouraging people who have been unsuccessful with Google (or other search engines) to refer their case to the ICO as a formal complaint.

We’re still collecting evidence of the responses from Google and other search engines in response to requests from people with spent convictions. We’re looking for both successful and rejected requests.

For more news, you can:

1. see the posts at the bottom of this page
2. click here for a full list of news posts
3. sign up our mailing list to receive updates by email
4. follow the latest on Twitter using the hashtag #googleconvictions

The problem

Employers regularly use internet search engines to ‘check-up’ on job applicants. Although only a small percentage of cases receive media coverage, where they do, the effect can be long-lasting.

Although the Rehabilitation of Offenders Act 1974 is designed to enable people with convictions to move on with their lives once they have become ‘rehabilitated’, the reporting of their convictions online, and the lack of regulation in this area, means that many people find that they face judgement and discrimination long after their convictions legally become ‘spent’.

There is a system with Google (and other search engines) where individuals can request a removal of search results. However, this isn’t always accepted even when the conviction is spent. Furthermore, even if the search results are removed, that doesn’t remove the actual content – this is reliant on the host organisation, and many news outlets (including the BBC) regularly refuse to edit reports that contain spent convictions.

The Rehabilitation of Offenders Act 1974 doesn’t provide a remedy by which to take action against an employer who unlawfully takes account of a spent conviction, nor enables individuals to take action against newspapers and websites that continue to publish details of convictions after they become ‘spent’

What we think needs to change

Google (and other search engines) should, when considering a request to de-list search results, operate a presumption that if the conviction is spent, it should de-link URL’s that refer to those spent convictions. Requests would only be refused if there are clear countervailing public interest considerations.

News publishers should operate a presumption that URL’s referring to spent convictions would be removed from online databases.

What we’re doing

Since the news in 2014 of the “right to be forgotten”, we are actively looking at if and how this is being applied to people with spent convictions.

We are working with Carter Ruck, a law firm specialising in this area, on potential legal remedies for the online publication of spent convictions

We are collecting evidence of people who have applied for their “search results” to be removed by Google and others.

We are encouraging people who have been unsuccessful with Google (or other search engine) to refer their case to the ICO as a formal complaint.

Background

In May 2014, the Court of Justice of the European Union (CJEU) ruled on a case surrounding the online availability of personal information.

The case, often referred to as the Google Spain “Right to be Forgotten” ruling, was brought by a Spanish man who complained that an auction notice of his repossessed home on Google’s search results infringed his privacy. The court found in his favour, and this has had wide-reaching consequences for search engines like Google.

The court found that:

1. The 1995 Data Protection Directive applied to search engines – essentially, that they are controllers of personal data.
2. Individuals have the right – under certain circumstances – to ask search engines to remove links with personal information about them. This applies where the information is inadequate, irrelevant or excessive.
3. The right to be forgotten is not absolute – will need to be balanced against other rights
4. A case-by-case assessment is needed to consider the type of information, its sensitivity for the individual’s private life, and the interest of the public in having access to that information. The role the person requesting the deletions plays in public life might also be relevant.

The ruling only covers the removing of the search results – under “the right to be forgotten”, the information will still exist on the website that published the original article but Google won’t be able to deliver matches to some enquiries that are entered. Deletion of the original information is still be the responsibility of the website owner.

Information on search results will only disappear from searches made in Europe. Queries piped through its sites outside the EU will still show the relevant search results. This remains controversial.

However, many people are still seeing the ruling as a potential way of dealing with the ‘google-effect’ that often haunts people for lots of different reasons,

Note: The phrase “right to be forgotten” is quite misleading – ultimately, it gives individuals the “right to delist” – i.e. stop links appears in search results – that is, to require search engines to remove links to personal data which was “inadequate, irrelevant or excessive.”

Case studies

Case of Anthony – Spent convictions are still available online, even after complaining to the ICO

Case of Natasha – Online links hampering chances of promotion

Case of Patrick – Spent convictions online jeopardising self-employment 

Case of William – Do spent convictions relating to possession of indecent images get de-listed from internet search engines?

We have posts relating to the ‘google-effect’ on our online magazine, theRecord

News / What we’ve done

See the bottom of this page for news and details about what we’ve done so far.

You can also find below the latest from Twitter, using the hashtag #googleconvictions (although we cannot endorse what gets displayed here).

#googleconvictions Tweets
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Send us your evidence

We are collecting evidence of people who have applied for their “search results” to be removed by Google and others. We’re looking for both successful and rejected requests. More details can be found here.

Useful links, resources and publications

• Google Transparency Report – European privacy requests for search results
• ICO’s search result delisting criteria

For more information

1. Practical self-help information  – We have guidance on dealing with the ‘google-effect’ and information online on our information site
2. Personal experiences – We have posts relating to our work on the ‘google-effect’ on our online magazine, theRecord
3. Discuss this issue – Share your views and experiences on our online forum

Do you have a caution/conviction that can never be filtered?

The government has now changed the filtering rules meaning:

• reprimands, final warnings or youth cautions will no longer be disclosed
• multiple convictions will be filtered, provided they
  • were not for an offence that can never be filtered and
  • did not result in a prison (or suspended) sentence

The court did not rule that the list of offences that can never be filtered should be changed. We are gathering evidence to show why this should change.

We want to hear from you if you:

• served a short prison sentence, or suspended sentence, for an offence that could be filtered
• have a caution or conviction for an offence that currently cannot be filtered – such as
  • Assault occasioning ABH (s.47 Offences Against the Person Act 1861)
  • Robbery (s.8 Theft Act 1981)
  • Loitering for purposes of prostitution (s.27 Sexual Offences Act 1992)

What we need from you

If you are affected by the filtering rules, contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: DBS filtering’. Please include:

• Your name
• Your date of birth
• Contact details (email and telephone) and how you’d be happy for us to contact you
• Which example above you think your case fits into
• Details of your cautions/convictions including dates and a DBS certificate if you have one
• The difficulties you’ve faced as a result of your criminal record not being filtered.
• Whether you would be willing to contribute to any media coverage on this issue in future (this is for our reference, we won’t share your details without consent)

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent.

Find out more about how we handle your data.

The problem

1. Since 2013 the filtering rules have helped many people with old and minor criminal records to be free of the stigma and discrimination that so many face when they have something on their criminal record. However, the current system doesn’t go far enough: it is blunt, restrictive and disproportionate. The intention of the filtering rules was to prevent unnecessary disclosure of criminal records on standard and enhanced criminal checks. However, in practice the system is ineffective because it is limited by inflexible rules and only came about due to legal challenges. 
2. Minor offences are being routinely disclosed. Disclosure of minor offences including shoplifting, common assault and possession of various forms of cannabis are some of the most commonly disclosed convictions.
3. The list of offences that cannot be filtered is too broad. Robbery (an offence than cannot be filtered) could be used as the offence where a 12-year-old pushes over a classmate and takes their mobile phone. Offence categories fail to take into account specific circumstances. For example, the production and distribution of sexual images of a child could relate to a 16-year-old sending a classmate a naked picture of themselves. When it comes to cautions, people may accept a caution for a relatively serious offence when, if they were charged, that offence would likely be downgraded or they might be acquitted. Offences of ABH and prostitution should not be on the list.
4. There is no discretion – The filtering system is made up of ‘bright-line’ rules:
   1. Age, seriousness and relevance are not considered where someone has more than one conviction.
   2. Disclosure is automatic – there is no provision to make prior representations if something does not fit within the automatic rules.
   3. There is no assessment of the relevance of the conviction/caution to the employment sought, or the extent the individual may be perceived as continuing to pose a risk.
5. There is no opportunity for review – The Independent Monitor is available to review the decision by a Chief Police Officer to disclose “relevant information” such as arrests and allegations. This function does not currently extend to reviewing the automatic disclosure of old/minor convictions and cautions.

Why it matters

A criminal record can be crippling for employment – Employers are risk-averse, and often assume that if something is flagged on a disclosure, they cannot hire the applicant. Yet it’s a sad irony that a criminal record only becomes a problem when someone decides to get on in life; a criminal record check is not required to sell drugs or join a gang, but it is to get a job or go to university.

It dogs people for decades – The current system affects people with a criminal record for longer and more profoundly than elsewhere in Europe. The current criminal record disclosure system acts as a significant barrier to them doing so and can have profound effects well into adulthood, and often indefinitely.

Large numbers of people are affected – In 2019/20, 237, 790 checks revealed convictions or cautions after filtering rules had been applied. In our experience, disclosure of a criminal record is a fatal blow to an application and it is more common to reject the applicant than to conduct an assessment and proceed to hire them.

What we think should change

We urge the government to take immediate steps to reform the system and make sure that old, minor or irrelevant convictions and cautions are not disclosed on criminal record checks.

We recommend the Home Office and Ministry of Justice:

1. Reduce the list of offences not eligible for filtering
2. Remove the restriction on prison sentences so they are eligible for filtering
3. Introduce a discretionary filtering system: Read more about discretionary filtering.
4. Enable applicants to apply for their DBS certificate before applying for jobs
5. Create a distinct system of disclosure for criminal records acquired in childhood

Case studies

A piece on BBC Newsnight in June 2018, ahead of the Supreme Court hearing, featured two cases. 

In our response to the Justice Committee inquiry, we included a number of case studies of people affected by criminal records acquired in their youth. These include:

• Case of Helen
• Case of Teresa
• Case of Dennis
• Case of Monica

Other interesting cases

• Anger as pensioner claims 50-year-old juvenile conviction scuppered job application

Latest news

November 2020 – The government confirmed that the planned changes to filtering rules will take effect from 28 November. Read our blog on the day the changes happened. 

October 2020 – We received a response from government to our September open letter

September 2020 – Unlock, Liberty and Just for Kids Law publish an open letter to government ministers, urging the implementation of the new rules

9th July 2020 – Government responds to Supreme Court ruling with plans to change criminal records disclosure regime. Read our response to the government’s plans, and find out more about the impact of these changes.

30th January 2020 – Rights groups condemn government’s failure to fix broken DBS system

30th January 2019 – The Supreme Court judgment – The court has ruled that two aspects of the criminal records disclosure scheme are disproportionate and in breach of Article 8 of the European Convention on Human Rights; in particular, the blanket rules which require the automatic disclosure of all convictions where a person has more than one conviction, and the requirement that some childhood cautions be disclosed indefinitely. This is an important ruling which stands to affect many thousands of people with old and minor criminal records who have been unnecessarily anchored to their past. Read Unlock’s response and media coverage of the decision.

For more latest news, you can:

1. click here for a full list of news posts
2. sign up our mailing list to receive updates by email
3. follow the latest on Twitter using the hashtag #dbsfiltering

BBC Radio 4’s Law in Action focused on childhood criminal records in a piece in November 2018. Listen below:

Read more about the Supreme Court case

• In June 2018, a landmark case on disproportionate criminal records disclosure regime reached Supreme Court.
• For the first time in Unlock’s we intervened in a case. Read our submission to the court.
• Watch the Supreme Court hearing (19, 20 and 21 June 2018 – there are more details on the Supreme Court hearing)
• Read a blog with some reflections on the hearing
• Read a summary of the cases at the Supreme Court (P, G, W and Gallagher)
• Read about the Supreme Court judgment
• Read about the Government response to Supreme Court ruling and its plans to change criminal records disclosure regime
• The new filtering rules 

Useful links, resources and publications

Briefing – Reform of the criminal records disclosure regime (July 2020)

Joint letter to David Gauke and Sajid Javid (with Just for Kids Law and Liberty, March 2019)

Filtering of criminal records from DBS checks – Unlock briefing (May 2018)

A life sentence for young people – A report on the impact of criminal records acquired in childhood and early adulthood (May 2018)

A simple guide to filtering of spent cautions and convictions (Unlock’s Information Hub)

Law Commission project – Non-disclosure of certain criminal convictions and cautions (February 2017)

Letter to Secondary Legislation Scrutiny Committee (April 2013)

Filtering old and minor convictions – Effect of the case of T (Unlock, February 2013)

Submission to the Criminal Records Review – Phase 1 (Unlock, December 2010)

Our Proposed Filtering Approach (Unlock, October 2010)

Unlock Member Briefing – A Balanced Approach – Independent Review by Sunita Mason (Unlock, March 2010)

Recommendations to the Independent Review of Policy on Retaining and Disclosing Records held on the Police National Computer (Unlock, February 2010)

Member Submissions to the Independent Review of Policy on Retaining and Disclosing Records held on the Police National Computer (Unlock, February 2010)

For more information

1. Practical self-help information  – We have guidance on the DBS filtering process on our information site
2. Personal experiences – We have posts relating to our work to challenge the DBS filtering process on our online magazine, theRecord
3. Discuss this issue – Share your views and experiences on our online forum