Criminal Record Sealing and Expungement in England and Wales

Currently, England and Wales have no formal process for “sealing” a criminal record. There is no procedure to apply to a Court to have a criminal record formally sealed so it is not disclosed.

There is also no formal process for expunging a criminal record (other than police records), namely erasing someone’s criminal record. In the United States, there are laws on sealing records and expungement; the rules vary from state to state.

It has been recently suggested (September 2017) that the UK adopt a similar approach to the United States. A report commissioned by former Prime Minister David Cameron and headed by David Lammy MP (the Lammy review) recommended that former offenders should be able to apply for their criminal records to be sealed. The report recommends that ex-offenders should be able to apply to have their case heard by a judge or independent body, such as the Parole Board, where they could prove they have reformed.

The judge would then decide whether to “seal” the record, having considered factors such as time since the offence and evidence of rehabilitation. If the decision goes the applicant’s way and the criminal record is sealed, the record will still exist, but the individual would not need to disclose it, and employers would not be able to access it.

Whether the suggestions for reforming the disclosure system incorporating a sealing process will be implemented is yet to be seen.

However, there are already in place rules that protect former offenders from disclosing certain criminal records.

These rules are often reviewed, particularly after successful legal challenges before the High Court. Legal challenges have resulted in several improvements for former offenders.

The Disclosure and Barring Service’s (DBS) disclosure rules, as currently in place, permit disclosure on a DBS certificate in the following circumstances:

• Caution for specified offence 18 or over
• Caution for non-specified offence 18 or over Less than 6 years
• Conviction for specified offence Any age Any time
• Conviction resulting in custodial sentence Any age Any time
• Conviction for non-specified offence 18 or over Less than 11 years
• Conviction for non-specified offence Under 18 Less than 5 and half years

The list of serious specified offences that permit permanent disclosure by the DBS includes a range of serious offences that are related to sexual or violent offences or are relevant in the context of safeguarding.

Suppose you have only a police record, namely a PND, a police caution (simple or conditional), a cannabis warning, or a police arrest record. In that case, you will be able to apply to the police directly to have these records “expunged” (deleted) from the PNC.

If you have been to court and have been convicted, you will not be able to “expunge” a record but will be able to appeal your conviction. If your appeal is successful and your conviction is quashed, then you could apply to have your PNC records expunged.

The police will only delete a police record if certain considerations apply, such as false or malicious allegation that an arrest was unlawful, the case was incorrectly disposed of, or in the wider public interest.

If the police agree to delete your PNC record, your biometric data (DNA and fingerprints) will also be expunged.

If the police refuse to delete your PNC record, it will be retained on the PNC for 100 years, effectively for life. Suppose you need to prepare to accept the retention of your record on the PNC. In that case, if certain considerations apply, you can apply to the High Court for Judicial Review of the decision to retain the record. Also, in certain circumstances, you may be able to apply to the Information Commissioner’s Office (ICO) to decide whether your data ought to be retained by the police.

If you are required to undertake a DBS certificate, if your records are protected according to the rules detailed above, e.g. after 6 years with respect to a police caution, then nothing will show up on a DBS certificate unless the caution is for a proscribed list offence (such as ABH, child neglect/cruelty, sexual assault).

However, if you require an enhanced DBS certificate, even after 6 years of caution, and even for offences not on the specified offences list. In that case, it is still possible for information related to the caution to be disclosed on an enhanced DBS certificate. If information is disclosed, you can appeal this disclosure directly to the DBS in the first instance and then, if that fails, to a body called the Independent Monitor. If the Independent Monitor rules against you, you can appeal to the Upper Tribunal.

Although England and Wales do not have a formal records sealing process, as detailed above, there are numerous ways that the law does help individuals with prior criminal records.

If you are someone with a PNC record, namely an arrest record, a non-conviction record, a police caution, a PND or a cannabis warning, and you feel the record is unfairly affecting your life and future, then please get in touch with us today. We have extensive experience of having police records expunged from the PNC.

Our lawyers also have extensive experience in challenging DBS certificates, challenging unfairly disclosed information on enhanced certificates or correcting disclosure mistakes.