Filtering of spent cautions / convictions – A detailed guide

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Aim of this information

This information aims to explain the filtering process that the Government introduced, on the 29th May 2013.

Please note: This guidance has been produced using the information that we have available to us at the time of publishing. We are regularly updating this guide as and when more information is available to us on how the process is working in practice.

Why is this important?

Any caution or conviction which is eligible for filtering will automatically be removed from Disclosure and Barring Service checks. Ir’s important therefore that you know whether your offence will be filtered to ensure that you do not disclose it to an employer if, legally, you don’t need to.

Introduction

Background

Until May 2013, employers who were entitled to carry out standard or enhanced level checks had received the details of all convictions and cautions that were held on the Police National Computer (PNC). In recent years, there had been growing pressure on the Government to change the way that they disclose information to employers from the PNC. In early 2013, this culminated in a court case (known as ‘T’), which found that the automatic disclosure of all convictions and cautions was disproportionate, and therefore incompatible with the right to private life under article 8 of the Human Rights Act.

Simple guide

Alongside this detailed guide, we’ve also produced a simple guide which can be used to get a broad overview of how the filtering process works.

What changed in 2013?

In response to the Court of Appeal ruling in January 2013, the Government brought in changes to the way that the system works. These arrangements are set out in The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (“the Order”). The rest of this information will hopefully shed some more light on how this Order will work in practice.

What is meant by filtering?

Filtering is the term that the DBS is using to describe the process which will identify and remove from disclosure certificate convictions and cautions which should no longer be disclosed due to changes to legislation.

It doesn’t mean the conviction or cautions will be ‘removed’ or ‘wiped’. They will remain on the PNC.

When did it start?

Changes have been made to the legislation that determines which convictions and cautions can be taken into account by employers and other bodies and what is included on a DBS certificate. These have been implemented as a result of a judgment of the Court of Appeal. These changes came into force on 29th May 2013.

Guidance from the DBS

The Disclosure & Barring Service has published their own guidance on the filtering process. Links to these are below (although the links might change in the future):

How does the filtering process work?

The system can effectively be split into two; a system for cautions, and a system for convictions.

For both systems, there is a list of exempt offences – this means that any caution or conviction for an offence on this list will not be filtered.

General summary

  • The rules only apply to standard and enhanced level DBS checks. They do not apply to other forms of employment vetting, or other types of disclosures (such as Police Certificates)
  • The rules apply to England and Wales only.
  • If you apply for a check using some other disclosure system (such as Disclosure Scotland), your record will be dealt with in line with their current processes.
  • If you have convictions which you obtained outside of England & Wales, these should be dealt with in line with the filtering process, as far as is possible. This element of the system is explained in more detail below.

Overview of time periods

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What will not be filtered?

In relation to what MUST be included in the certificate that the DBS issues:

  • Cautions relating to an offence from a list agreed by Parliament– see below
  • Cautions given less than 6 years ago (where aged over 18 at the time of caution)
  • Cautions given less than 2 years ago (where aged under 18 at the time of caution)
  • Convictions relating to an offence from a list agreed by Parliament – see below
  • All convictions where there is more than one conviction
  • Convictions that resulted in a custodial sentence (regardless of whether served)
  • Convictions given less than 11 years ago (where aged over 18 at the time of conviction)
  • Convictions given less than 5.5 years ago (where aged under 18 at the time of conviction)

What will be filtered? Cautions

Summary

  • A caution received when 18 or over will not be disclosed if six years have elapsed since the date of issue – and if it does not appear on the list of specified offences (which must always be disclosed).
  • A caution received when under 18 (i.e. their youth equivalent) will not be disclosed if 2 years have elapsed since the date of issue – but only if it does not appear on the list of specified offences (which must always be disclosed).

Notes

  • The process applies no matter how many cautions you have on the PNC (although not many people should have multiple cautions). Cautions will still be filtered even if you have multiple convictions that are not filtered. They will also be filtered even if others are not filtered (for example, if others are exempt, or too recent).
  • The term ‘cautions’ includes their youth equivalents, such as reprimands and final warnings.

Questions to ask yourself

1. Have you received a caution (or equivalent) for an offence on the list of exempt offences?

  • If yes, your caution will not be filtered.
  • If no, your cautions (including if you’ve received more than one) will be filtered, subject to below.

2. Did you receive the caution when you were under 18?

  • If you were under 18 at the time you received the caution, your caution will be filtered 2 years after the date the caution was issued.
  • If you were 18 or over at the time you received the caution, your caution will be filtered 6 years after the date the caution was issued.

What will be filtered? Convictions

Summary

A conviction received when 18 or over will not be disclosed only if:

  • 11 years have elapsed since the date of conviction;
  • it is the only conviction on record; and
  • it did not result in a custodial sentence.

Even then, it will only be filtered if it does not appear on the list of specified offences which must always be disclosed. If there is more than one conviction on record, then details of all convictions will be disclosed.

For a conviction received when under 18, the same rules apply as for adult convictions, except that the elapsed time period is 5.5 years.

Notes

  • This is only for if you have received one conviction. If you have more than one conviction on the PNC, all your convictions will be disclosed. Where people appear in court once, and where their DBS check shows one ‘conviction’ but multiple ‘offences’, these will be treated as multiple convictions and so NOT be filtered.
  • The term ‘conviction’ includes absolute and conditional discharges, and court-imposed bind-overs.

Example of multiple convictions

Example of a DBS Certificate disclosing one conviction with multiple ‘offences’

Questions to ask yourself

1. Have you received more than one conviction?

  • If yes, none of your convictions will be filtered.
  • If no, move to 2.

2. If you have only received one conviction, did you receive a prison (custodial sentence – YOI, borstal) sentence (including a suspended prison sentence) for it?

  • If yes, your conviction will not be filtered.
  • If no, move to 3.

3. Is the conviction that you received on the list of exempt offences?

  • If yes, your conviction will not be filtered.
  • If no, your conviction will be filtered, subject to 4; move to 4.

4. Did you receive the conviction when you were under 18?

  • If yes, your conviction will be filtered after 5 and a half years of the date of conviction.
  • If no, your conviction will be filtered after 11 years of the date of conviction.

Offences not covered by filtering – Specified offences

Introduction to the list

There is a list of offences published by the DBS that covers the offences that are exempt from the filtering process – these are referred to in the DBS guidance as ‘specified offences’. Any offence that is included in this list will not be filtered, regardless of whether it was a conviction or a caution.

The list includes a range of offences which Parliament regarded as serious, and which relate to sexual offending, violent offending and/or safeguarding. Parliament felt that it would never be appropriate to filter offences on this list.

The DBS list of offences

The list of offences which will never be filtered has been derived from the legislation and is available on the DBS website here. The list is arranged alphabetically by Act of Parliament and the offences are shown sequentially by section within each Act. The DBS has said that the list of offences will be updated to reflect changes to legislation in the future.

Download: DBS list of offences that will never be filtered (External link to DBS website)

As the DBS has only published a list of specified offences, we have put together a brief list of some of the more common offences that both will and will not be filtered. We are keen to know about further common offences that can be added to the lists below. Please contact us.

Common offences that are eligible for filtering

  1. Common assault
  2. Drunk and disorderly conduct
  3. Harassment
  4. Theft (where no violence is involved)
  5. Drugs offences that involve simple possession

Common offences that are exempt (i.e. always disclosed)

  1. Many sexual offences
    a. Indecent assault on female 16 or over
    b. Posessing indecent photographs or psedo-photographs of children
    c. Sexual activity in a public lavatory
  2. Offences that involve a certain degree of violence, for example
    a. Affray
    b. Assault occasioning actual bodily harm
    c. Robbery or assault with intent to rob
    d. Stalk a person causing fear or violence
  3. Safeguarding offences
    a. Wilfully abandoning young person under 16
    b. Taking a child out of the United Kingdom without the appropriate consent
  4. Drugs offences that involve supply, for example
    a. Supplying controlled drug – Class C

Additional offences that are exempt (i.e. always disclosed)

The legislation also extends to cover similar offences committed under the law of Scotland and Northern Ireland or under laws relevant to the armed services. For example, the following categories of offences would also always be disclosed:

  1. an offence which has been superseded (directly or indirectly) by any of the offences on the list;
  2. an offence of attempting or conspiring to commit any of the offences on the list ;
  3. an offence of inciting or aiding, abetting, counselling or procuring the commission of any of the offences on the list;
  4. an offence under the law of Scotland or Northern Ireland or any foreign country which corresponds to any of the offences on the list;
  5. certain offences under legislation applicable to the armed forces which correspond to any of the offences on the list.

Given these points, it would be sensible to check any standard or enhanced certificate that you receive, to ensure that everything which should have been filtered has been.

However, from the 17th June 2013, certificates are sent directly to you as the applicant, so you have the opportunity to question what has been disclosed, before revealing this to an employer.

What types of offences are eligible for filtering?

Since filtering came in, we’ve been asking the DBS/Home Office to publish a list of offences that are eligible for filtering (so long as they meet the other criteria), but after waiting over 6 months, we instead made a Freedom of Information request to the DBS, to ask them for a list of the most common offences that have been filtered so far.

Download: List of offences that could be filtered (Please read the information below about this document)

The list above contains over 1,000 offences long. The top ten offences that have been filtered are listed below:

  1. THEFT – SHOPLIFTING
  2. DRIVING A MOTOR VEHICLE WITH EXCESS ALCOHOL
  3. COMMON ASSAULT
  4. DESTROY OR DAMAGE PROPERTY (VALUE OF DAMAGE #5000 OR LESS – OFFENCE AGAINST CRIMINAL DAMAGE ACT 1971 ONLY)
  5. THEFT
  6. BEING DRUNK AND DISORDERLY
  7. POSSESSING CONTROLLED DRUG – CLASS B – CANNABIS
  8. USE DISORDERLY BEHAVIOUR OR THREATENING/ABUSIVE/INSULTING WORDS LIKELY TO CAUSE HARASSMENT ALARM OR DISTRESS
  9. CRIMINAL DAMAGE
  10. THEFT BY EMPLOYEE

So, if your conviction or caution is on the list above, it’s one that could be eligible for filtering (so long as it meets the other criteria). However, please bear in mind that this is a list of offences that HAVE been filtered – the DBS has since admitted to us that they’ve made mistakes, so some of the offences on this list are also on the list of offences that cannot be filtered.

It’s worth remembering that this is not a comprehensive list – there will be other offences that are not on this list, but that are not on the list that will never be filtered. If it’s not on the list of offences that cannot be filtered, it can be eligible for filtering.

Can filtered cautions and convictions still be disclosed as police intelligence?

Potentially, filtered cautions and convictions could still be disclosed on enhanced certificates as police intelligence. However, since the filtering legislation was introduced in May 2013, we’ve not seen any examples of this happening.

A Chief Police Officer may include details relating to an otherwise filtered conviction, caution, warning or reprimand on an enhanced disclosure if they consider, having regard to all the circumstances, that the filtered disposal is relevant and that it ought to be disclosed. A filtered disposal may also continue to be considered by the DBS for the purposes of making a barring decision.

There is no mechanism to add a filtered disposal back into a standard disclosure certificate.

Completing the DBS application form – section e55

The DBS form was updated in March 2014. A copy of this is below.

e55

Do you have any convictions, cautions, reprimands or final warnings which would not be filtered in line with current guidance?

In short, if all convictions and cautions on your record would be filtered, you can answer “No”.

Positions not covered by filtering

There are a small number of defined positions where filtering does not apply – i.e. all convictions and cautions can be taken into account. These positions do not go through the DBS process as part of their vetting process. Some examples include police vetting and firearms licence applications. We have asked the DBS to provide us a full list of these positions, and will publish this here once it is available.

What should employers do?

The legal situation

An employer can only ask you to provide details of convictions and cautions that they are legally entitled to know about.

Where a standard or enhanced certificate can be requested (i.e. the position is listed in the ROA Exceptions Order) and where appropriate Police Act Regulations exist to enable to the DBS to carry out these disclosures, an employer can only ask you about convictions and cautions that are not protected.

If an employer in this situation takes into account a conviction or caution that would not have been disclosed, they are acting unlawfully under the Rehabilitation of Offenders Act 1974.

What question should an employer now ask?

Employers need to change their questions to make reference to the filtering process where the position is eligible for a standard or enhanced disclosure.

The DBS/Ministry of Justice suggest that employers use the following question as a template:

Do you have any convictions, cautions, reprimands or final warnings that are not “protected” as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)

We don’t particularly like the use of the phrase “protected”, so we suggest:

Have you ever been convicted (or received a caution, warning or final reprimand) for an offence that would not be filtered from the Police National Computer when it is processed by the Disclosure and Barring Service

Application forms which require a standard or enhanced check will need to reflect the filtering changes so that:

  1. Employers ask the right questions, and
  2. Employees give the right (legally accurate) answer.

Frequently asked questions about specific disposals

For a range of frequently asked questions, click here.

Examples

Below are some scenarios that will hopefully help to explain the filtering rules in practice.

Scenario 1 – David received a caution for theft in June 2006. He was 21 at the time.
Outcome – His caution will have been filtered from June 2012.
Reason – An adult caution takes 6 years to be filtered.

Scenario 2 – Jane was given a warning for affray in February 2011, when she was 17, and was convicted in January 2012 for common assault, when she was 18 .
Outcome – Her warning will not be filtered. Her conviction will be filtered in January 2023.
Reason – ‘Affray’ is on the list of exempt offences. A single adult conviction takes 11 years to be filtered.

Scenario 3 – Paul was charged with 3 counts of theft, convicted in March 1992, when he was 15, and given a fine.
Outcome – His convictions will not be filtered.
Reason – As his ‘charge’ resulted in more than one conviction, none of them will be filtered.

Questions/guidance

You should read the DBS guidance (links are at the top of this document).

You can also call the DBS on 0870 90 90 811 or email them at customerservices@dbs.gsi.gov.uk.

We are receiving reports of people being given conflicting information about filtering. Given this is a relatively new process, this is inevitable. Our advice is to carefully read the guidance that we have published, as well as what the DBS has published, as opposed to relying on verbal advice. We are actively raising issues which are not very well covered in the DBS guidance, and are encouraging them to ensure that their guidance is as clear, detailed and unambiguous as possible.

More information

  1. For practical self-help information – More information on criminal record checks for employment can be found here
  2. To read personal stories – You can read stories about this posted on theRecord, our online magazine.
  3. To discuss this issue with others – Read and share your experiences on ouronline forum.
  4. Our policy work – Read about the policy work we’re doing on this issue.

Get involved

Help us to add value on this information. You can:-

  1. Comment on this information (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online peer forum
  4. Share your personal story by contributing to our online magazine, theRecord
  • Mark

    Is a common assault caution (not on specified list) that remains unspent considered to be ‘relevant’ in a ECRC disclosure for (1) a job that involves a regulated activity? (2) for a job that is not a regulated activity?

  • Serena

    Would a penalty notice for disorder for retail theft non violent shop lifting be disclosed on a dbs certificate for a 3 year renewal for a carer in special needs Residentail work. Arrested and taken to a custody suit at time of offence?

  • Jules Odonnell

    After a domestic incident I recieved a caution in 2012 for common Assault. As this is on the filtered list, will this still show up on an enhanced disclosure? Thanks x

  • Dorothy

    I was convicted of theft from employer and sentanced to 6 months in jail. This was 13 years ago, will it show up on a basic dbs check as I was always under the impression this was now ‘spent’

  • Silly fool.

    Long story short: aged 14 I was charged and convicted with a conspiracy offence. Court proceedings took place in 1995 and I was given a years probation, and a £120 fine. The judge stated during the trial that he believed I had been coerced into a situation, and had noted the other participants / convicts behaviour towards me during the trial I.e threats while on the stand together. I was a child, and they were adults, I had no legal representation at the police station or during the interview, just my grandma who didn’t have a clue God bless her. Police offered me a solicitor throughout the interview but of course I didn’t understand the gravity of the situation. I took the blame for the offence stating I told / asked the adults to do the crime as I thought this would get them off and then they wouldn’t hurt me – how wrong I was. Anyhow, the conviction has never shown on an enhanced crb / DBS. I had an enhanced certificate in 2001, again in, 2012, and again in 2015 – nothing shows. In all cases I have worked with vulnerable people, and in child protection… I’m very confused as to why it never shows.
    As I side note – because I do care what people think 🙂 – I didn’t ask the adults to do anything! They heard I was being bullied at school by some rich kid and saw money signs – both adults were into drugs – another fact I was unaware of at the time. They saw how terrified I was if this girl and said they would speak with her, and that it may scare her enough to stop the bullying. What they actually did was take her on to a tube, steal her coat, and threaten to hurt her! Poor girl huh… They did the same sort of thing to me too after the police confession – so I know how scare she must have been.