Law Commission report - criminal records disclosure: Non filterable offences
The Law Commission has published its report and recommendations on non-disclosure of certain criminal convictions and cautions (Criminal Records Disclosure : Non filterable Offences : Law Com No 371 February 2017). Filtering provides a framework which regulates when an individual has to disclose convictions and cautions even though they are spent. The Law Commission has concluded that there is a compelling case for a wider review of disclosure system as a whole.
"Given the vast array and magnitude of the problems identified by our provisional assessment of the disclosure system as a whole, there is a compelling case to be made in favour of a wider review. Our conclusion is that the present system raises significant concerns in relation to ECHR non-compliance and, what may be considered to be, the overly harsh outcomes stemming from a 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" Para 5.101
By virtue of the Rehabilitation of Offenders Act 1974, individuals are not required to disclose convictions and cautions once they have become ‘spent’. However, there are some circumstances in which disclosure of spent convictions or cautions can be requested. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“the 1975 Order”) sets out that the right to non-disclosure does not apply when a person is asked to disclose his or her criminal record for the purpose of ascertaining his or her suitability for certain employments, professions and licences and in some other situations requiring a high degree of trust and/or involving contact with children and vulnerable adults. In these cases, all convictions and cautions should be disclosed, whether spent or not, unless they are “filtered”. The filtering system was introduced to the criminal record disclosure scheme in 2013 in response in part to a case that ultimately reached the Supreme Court in R (on the application of T) v Chief Constable of Greater Manchester and others  UKSC 35 SC.
In July 2016 the Law Commission were tasked with reviewing filtering under the criminal records disclosure system. This filtering scheme has been in place since 2013. It was introduced so that an individual who would otherwise be required to disclose all of their criminal offending history for certain purposes (such as working with children or vulnerable adults, or applying for or maintaining membership of a particular profession) would not be required to do so if the convictions were for old and minor offences.
There are certain offences which are never filtered for these offences, even though the conviction has become spent, the offender will be obliged to reveal it for certain purposes. The offences that will always have to be revealed are known as “non-filterable” offences.
The Law Commission considered:
- the statutory framework that sets out the existing system
- current problems with both the existing legislative provisions and the operation of the non-filterable list of offences in practice
- what offences are currently listed and whether the list requires revision
- what reforms could be suggested to address these problems.
In summary the following conclusions were reached:
1 The legislation governing filtering is hard to understand and inaccessible to users. In particular, the drafting is convoluted, particularly in the Police Act 1997 and the list of non-filterable offences exists in two places in legislation and is mostly made up of references to different lists of offences in other pieces of legislation impacts accessibility. There may also be uncertainty as to what is and is not on the list of non-filterable offences at any one time, as the content of each of these different lists change from time to time. The language used in the legislation is difficult to understand.
2 There appears to be a lack of a principled basis for the inclusion of individual offences in the list.
3 There is an apparent lack of coherence and a number of potential inaccuracies within the version of the list used by DBS, created for operational purposes.
4 There is uncertainty for individuals about what will be disclosed on a DBS certificates, especially as there is no way for individuals to view certificates in advance.
5 There is no direct channel for complaining that an offence has been wrongly included on a certificate due to potentially inaccuracies in the DBS list.
A set of principles should be developed for determining which offences should be non-filterable
Recommendation 1: The primary criterion for adding a new offence to the non-filterable list of offences should be relevance to one or more of the exempted questions identified in the 1975 Order. We strongly believe that a wider review of the system of criminal records disclosure is required in order to create a coherent set of principles upon which offences could be selected for inclusion.
Recommendation 2: The non-filterable list of offences should be set out in one statutory instrument rather than two.
Recommendation 3: The non-filterable offences should be listed individually by name and section, without reference to lists in other legislation.
Recommendation 4: The non-filterable list of offences should include all relevant abolished offences by name.
Recommendation 5: The non-filterable list of offences should include equivalents to the existing section of the Police Act 1997 (s113A(6D) which covering inchoate versions of offences on the list, offences committed in a jurisdiction other than England and Wales and service offences, corresponding to other offences on the list).
Recommendation 6: The non-filterable list of offences, set out in legislation, should be updated by amending that legislation.
Recommendation 7: A review of the PNC code system should be undertaken to assess how it can be reformed in order to make the filtering regime more effective.
The Government's response to this Report is awaited and we are tracking any subsequent legislative proposals that emerge. For more information, training and advice about the Rehabilitation of Offenders legislation, CRB disclosure, filtering and the implication of the Report contact Eve Piffaretti at 029 2068 6143 / firstname.lastname@example.org
Read the full report here.