How will having a Previous Conviction affect me?

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Created on January 11, 2022

How will having a Previous Conviction affect me??

In the paragraphs that follow I have tried to answer some of the most frequently asked questions about convictions and how or whether they apply over time.  Its sometimes a bit complicated and as usual its difficult to generalise so getting professional advice about your personal circumstances is essential in understanding the full picture.  

Will I have a criminal record?

We are often asked whether being convicted or cautioned for an offence will result in a criminal record.  There is no straightforward answer.  Most interactions with the police whether it be handing in a lost wallet, being warned for drunk and disorderly behavior or being convicted after robbing a bank are likely to be recorded somewhere on the Police National Computer database.  Whether those interactions form part of a criminal record or are made disclosable on requests for information about you depends on a number of different factors.

When most people think about criminal records they are thinking in terms of one of two scenarios.  

1 – Are my convictions (and cautions) disclosable in future Court Proceedings?

Convictions for some relatively minor offences, usually to do with the Road Traffic Act are non recordable and will not form part of a record of previous convictions disclosable to a court within criminal proceedings.  All recordable convictions, for offences ranging from driving without insurance to serious assaults are recordable and so potentially disclosable to the court (see the National Police Records (Recordable Offences) Regulations 2000 for a full list.  

2 – Are my convictions (and cautions) disclosable?

When you’re applying for a job or a university place or even if you’re just wanting to umpire at your daughter’s netball match, you might be told that you need to reveal your criminal convictions or that something called a DBS check is required.  DBS stands for Disclosure and Barring Service.  Who applies for a DBS check and what can be revealed in a DBS certificate can be quite complicated.  

Do I need to disclose everything to an employer? reference to the Rehabilitation of Offenders Act.

It depends on the type of job that you are applying for but the vast majority require just a basic DBS check which shows only convictions and cautions that are not spent.  Once a conviction is spent, you no longer need to disclose it in most applications, which means that you can legally answer no to the question about convictions and cautions.  You can work out whether a conviction is spent by reference to the Rehabilitation of Offenders Act.  

It is the type and length of sentence and the age of the offender on the date of conviction that determines the date upon which the conviction becomes spent; rather than the nature of the offence. 

 Here’s a handy table – 

Sentence

Adult -18+ 

Youth U18

Custody over 4 years

Never spent

Never spent

4 years and less

Sentence + 7years

Sentence + 3 ½ years

30 months and less

Sentence + 4 years

Sentence + 2years

6 months and less

Sentence + 2 years

Sentence + 18 months

Community order/rehab order

Length of order + 1 year

Length of order + 6 months

Fine

12 months

6 months

Conditional discharge

Length of order

Length of order

Conditional caution

3 months or earlier

3 months

Simple caution

Immediately

Immediately

What are the other kinds of DBS checks?

  • Standard – For some roles, things like court officers and workers within a prison, a prospective employer can apply for a standard check.  Only registered employers are able to make the applications, so not you or I.  They will show both spent and unspent convictions and cautions.    The only previous convictions that will not be shown are for Protected convictions.  Convictions become protected if they are the first conviction and more than 11 years old (5 ½ years if under 18 when convicted) and the conviction is NOT for a specified offence. 

A ‘specified offence’ is an offence deemed disclosable on all standard DBS checks, regardless of its age, even if it resulted in an adult caution but youth cautions, reprimands and warnings are NOT included.

Here’s is a link to the list of specified offences – 

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/635719/List_of_offences_that_will_not_be_filtered_1.docx 

  • Enhanced – An Enhanced DBS check can only be requested in very limited circumstances.  Usually by prospective employers where jobs involve caring for, supervising, or being in charge of children but also included is the supervision of adults in receipt of health care or social care services, or applications for gaming or lottery licenses.

When asked to conduct enhanced checks the police may look for information that is relevant to the specific role applied for.  That might include incidents or allegations that didn’t result in a conviction or a caution.  It will be for the appointed data controller to decide if the information “ought to be disclosed”. 

A person subject to an unfair disclosure is able to challenge its inclusion on a DBS certificate by contacting the Data Controller or data protection office for the police force area which owns the data.  

  • Enhanced with barred list – shows the same information as an enhanced check but also tells employers if you’ve been barred from doing the role you’re applying for.

 

How long does it all take?

he checks take less than 60 days and should be chased up on a helpline if you haven’t heard anything.

How we can help? 

Old Bailey Solicitors can advise you in relation to DBS checks and make applications for your records to be edited or deleted on your behalf. 

Written Representations Against a Disclosure 

If you have applied for an Enhanced DBS Check, you may be informed by the police that they intend to disclose certain information about you. If you do not agree with that decision, you have the right to make written representations to persuade them against making the disclosure. In those circumstances, you will need to inform the police whether you will be making representations within 14 days. We can assist you to identify whether there are any grounds on which to oppose the disclosure and, if so, draft and submit the representations on your behalf. 

Application for Record Deletion

There are certain circumstances under which it is possible to have information contained in your PNC record deleted. The guidance relating to the Record Deletion Process contains the ground under which an application can be made. We can assist you to identify whether there are any grounds on which an application could be made and, if so, draft and submit the application on your behalf. 

Our Costs

In all cases, we will arrange a meeting to discuss the matter with you and advise whether there are any grounds on which an application can be made and, if so, the likely chances of success. We will assess the amount of work required and seek to assist you under a fixed fee agreement, to provide you with certainty as to our costs. 

Get in touch here

In the paragraphs that follow I have tried to answer some of the most frequently asked questions about convictions and how or whether they apply over time.  Its sometimes a bit complicated and as usual its difficult to generalise so getting professional advice about your personal circumstances is essential in understanding the full picture.  

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