Criminal Record Sealing and Expungement in England and Wales

Currently in England and Wales there is no formal process for the “sealing” a criminal record. There is no procedure to apply to a Court to have a criminal record formally sealed so that 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 both sealing of records, and also expungement, the rules vary from state to state.

It has been recently suggested (September 2017) that the UK should adopt a similar approach to the Unites States. A report commissioned by former Prime Minister David Cameron, and headed by David Lammy MP (the Lammy review), recommended that former offenders ought to 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 the reform of the disclosure system, incorporating a sealing process, will be implemented, is yet to be seen.

There are however already in place rules that protect former offenders from the disclosure of certain criminal records.

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

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

• cautions relating to an offence from a list agreed by Parliament
• cautions given less than 6 years ago (where individual 18 or over at the time of caution)
• cautions given less than 2 years ago (where individual under 18 at the time of caution)
• convictions relating to an offence from a prescribed list
• where the individual has more than one conviction offence all convictions will be included on the certificate (no conviction will be filtered)
• convictions that resulted in a custodial sentence (regardless of whether served)
• convictions which did not result in a custodial sentence, given less than 11 years ago (where individual 18 or over at the time of conviction)
• convictions which did not result in a custodial sentence, given less than 5.5 years ago (where individual under 18 at the time of conviction)

The list of serious offences which permit permanent disclosure by the DBS, includes a range of offences which are serious, relate to sexual or violent offending or are relevant in the context of safeguarding. The government has concluded (although this is currently undergoing an appeal) it would never be appropriate to filter offences on this list.

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

If however 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 consideration apply, such as the allegation being false or malicious, 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. If you are unprepared to accept the retention of your record on the PNC, if certain considerations apply, you may be able to 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).

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

Although England and Wales does 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 of challenging DBS certificates, challenging unfairly disclosed information on enhanced certificates or correcting disclosure mistakes.