Law Commission review on Criminal Record Disclosure
‘[T]he present system raises significant concerns in relation to non-compliance with the ECHR and the overly harsh outcomes stemming from the failure to incorporate either proportionality or relevance into disclosure decisions. An impenetrable legislative framework and questions of legal certainty further compound the situation. This is an area of law in dire need of thorough and expert analysis. A mere technical fix is not sufficient to tackle such interwoven and large scale problems.’
That was the striking conclusion of the Law Commission in its recently published review on Criminal Record Disclosure.
The Commission was asked to review the system of filtering convictions prior to disclosure which was introduced in the wake of the Court of Appeal’s decision in R (T and others) v Chief Constable of Greater Manchester, under which convictions and cautions for most criminal offences need not be disclosed provided the prescribed period of time has elapsed and certain other conditions are met.
Those convictions and cautions are described as being ‘filtered’ and do not need to be disclosed in response to questions about an individual’s criminal record. Unlike the longstanding system of ‘spent’ convictions and cautions, the filtering process applies to professionals such as doctors, nurses, dentists and solicitors. However, there are a range of offences that can never be filtered (‘non-filterable offences’) including offences involving violence, sexual offences and offences relevant to the protection of children and vulnerable adults.
The Commission’s review notes that the system is intended to balance the interests of individuals in making a fresh start and those of employers and the public in ensuring that individuals occupying positions of trust and responsibility are suitable for those positions. The review notes that 114,000 applicants for disclosure certificates benefited from the filtering rules in 2015. It notes the importance of supporting the scheme with a legal and operational framework that is clear, fair and robust.
The present arrangement requires consideration of a number of different pieces of statute in order to ascertain whether an offence is non-filterable. That task is made somewhat simpler by this review which includes a detailed schedule of those offences that the Commission has identified as being non-filterable.
However, the inclusion of a separate list of offences that might fall into category only serves to highlight the degree of uncertainty that exists in relation to some offences. The review recommended new secondary legislation to set out a list of all non-filterable offences in a single location.
The intention of the review was to simplify and clarify the operation of filtering and to ensure that the system deals effectively and comprehensively with conduct presenting a risk without compelling disclosure of minor offences where that is unnecessary. The review did not address the issue of what information ought to be disclosed as part of an enhanced criminal record certificate in the exercise of the discretion afforded to the police to include additional information which they determine to be relevant.
The review also noted that some of the offences included in the list of non-filterable offences ‘cover a broad range of behaviour, only some of which is relevant to the purposes of the non-filterable list. An offence should only be included in the list if all or most instances of its commission are likely to raise concerns regarding those purposes.’
In addressing the existing rules about multiple convictions and custodial sentences, the review considered the possibility of relaxing the rule that convictions are never filtered if the person has more than one conviction. It noted ‘A second conviction does not necessarily mean that a person has committed offences on two separate occasions.’ The review acknowledges that there would be an argument ‘for allowing the filtering of convictions where the sentence was below a certain length, particularly if suspended.’
The review also noted the concern that not all offenders who accept cautions for non-filterable offences are informed at the time of accepting the caution that those offences will remain on their record indefinitely.
The review suggested that consideration be given to providing an applicant for a DBS certificate with an entitlement to preview the certificate at any stage, or, alternatively, to provide that an applicant is never required to answer questions about his or her criminal record except by providing a criminal record certificate.
The review acknowledged an argument that ‘there should be an independent adjudicator with power to consider whether the filtering rules have been correctly applied as a matter of law.’ The review also raises the possibility of proving that an applicant is never required to answer questions about his or her criminal record other than by providing a DBS certificate.
This review highlights the unsatisfactory state of the present regime including the challenges associated with determining whether an offence is non-filterable.
It suggests that the direction of reform will be toward an approach more carefully tailored to ensuring that disclosure is appropriately limited to those matters which are relevant to the position for which the disclosure certificate is being sought. Whilst healthcare professionals, solicitors and others would benefit from such reforms, this review is silent on the discretion to include information in Enhanced Disclosure Certificates which those professionals require to obtain employment.
However, where any new statutory scheme results in an offence being filtered, the exercise of discretion to include details of that offence in the additional information on an enhanced disclosure certificate would need to be supported by careful reasoning. Any material change to the present regime may be some time away given the competing demands on parliamentary time in the coming years.
If the sort of reforms envisaged in this review are implemented that gap between the criminal records regime and the maintenance and disclosure of professional disciplinary records by statutory regulators like the GMC and GDC will only widen. Whilst relevant distinctions can be made between those regimes, blanket disclosure policies will be vulnerable to challenge.
Full details of the review can be accessed here:
In July 2016 we were requested by the Home Office to review one specific aspect of the criminal records disclosure system, known as ‘filtering’. On 1 February 2017 we published our report with recommendations.
For more information or guidance, please contact:
T. 0207 227 7418
 R (T and others) v Chief Constable of Greater Manchester  EWCA Civ 25
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