Convictions obtained overseas

Introduction

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 to be 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.

For further information on ECRIS and the procedures for sharing information relating to convictions between EU countries, consult European Council Framework Decision 2009/315/JHA and European Council Framework Decision 2009/316/JHA.

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(9)(d) 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.  

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