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.

Is a police caution a criminal record? The short answer to this question is yes – a caution is a criminal record. However what actually constitutes a “criminal record” is not a precisely defined concept, and the better question to ask is, in what circumstances will my caution be disclosed?

A caution will become an issue for someone depending on who is asking the question, and the powers they have to ask about previous criminal records.

A caution is “spent” immediately (or after three months, or when the conditions run out, in respect of a conditional caution). So for the purposes of a Basic DBS certificate a police caution (sometimes known as a simple caution), will not be disclosed.

For other people however, who need to undertake a trusted/regulated role, then the caution will have more significant implications. For more details please see our article here: How long does a police caution stay on your record?

You may be wondering whether it is possible to get a caution, including a conditional caution or youth caution, removed, or perhaps simply you have an arrest record that you would like expunged (deleted).

It could be that your caution, or arrest record, is showing up on your standard or enhanced Disclosure and Barring Service DBS (formerly CRB) certificate. If so, the disclosure of your criminal record information may be hampering, or preventing altogether, your professional career.

Police caution how long do they last?

You may be wondering how long a police caution will last on your record, the answer is, it will depend on what type of DBS check you need, the type of offence you received your caution for, and what type of job you are going for.

If you are only required to provide a standard DBS certificate, then  your caution will usually be filtered off a standard certificate after 6 years (since changes to the law implemented in 2013).

If however you have a caution for an offence on the prescribed list of offences, then your caution will always be disclosed on any level of DBS certificate (enhanced or standard).  Therefore, unless you are able to have your caution deleted, if your caution is for an offence on the prescribed list, then the caution will never become “protected” and will never be filtered from your DBS certificate. N.B. 2019 edit, Disclosure with respect to youth reprimands/warnings/cautions are subject to revision by the government.

NB, November 2020 edit: Youth cautions, warnings and reprimands are immediately  “protected” subsequent to changes implemented by the government. This means that even for offences that appear on the DBS list of unfilterable offences, they will not be automatically be disclosed on an enhanced and standard DBS check. It should be noted however despite the changes, it is still possible for facts related to youth cautions, warnings or reprimands to still be disclosed on an enhanced DBS certificate if the police feel the information is “relevant”. 

The DBS publish a long list off offences that appear on the prescribed list. Cautions for these offence will never become filtered from any DBS certificate.

Most offences on the DBS prescribed list are of a serious nature and you would be very unlikely to receive a caution for a great many of the offences on the list; also changes brought about in 2015 means there is now a greater level of scrutiny by the police if a caution is going to be issued for a serious allegation and may only be issued in exceptional circumstances.

Typically, a proscribed list caution will be for actual bodily harm (ABH), child cruelty,  or sexual assault. Often these types of cautions may relate to facts that might be relatively minor, however owing to a decision made be the police officers/CPS, a prescribed list caution is issued. A prescribed list caution can have a devastating impact on a professional career.

How to Challenge a Police Caution?

If you have been issued with a caution, youth caution, conditional caution, for an offence either on the prescribed list or not, we can help you challenge the retention of the caution.

There are many things that can go wrong at the police station that might have made your caution unfair, perhaps you were unfairly pressed into accepting a caution, the consequences of the caution were minimised (“it’s just a slap on the wrists”), or you never admitted the allegation.

In the first instance we will always fight to remove your caution without the need for costly court proceeding; however if court becomes necessary, we have extensive experience of challenge police cautions and arrest records via judicial review proceedings.

We have overturned many police cautions and have extensive experience of making representations to a wide range of police forces across the country.

DBS Certificates and Barred list Appeals

Along with challenging unfairly issued police cautions, we also have extensive experience of challenging DBS decisions to bar and/or applying for the removal of a barring decision .

The DBS have a wide discretion when placing someone on the barred list, or retaining a barring decision in place; we have extensive experience of the law and procedure in this specialised area of law and have had many clients prevented from being barred.

If you have received a DBS notice to bar letter then please get in touch, it is important that you act promptly – if you fail to make representations then the DBS may automatically bar you from your chosen profession.

DBS Filtering

If it is not possible to delete your caution, and it is not on the prescribed list, it will become “protected” after 6 years and, generally, will be filtered according to DBS rules.

If however you are required to undertake an enhanced DBS certificate check, then it is possible that information  related to your caution could still be disclosed on your certificate if it is deemed relevant to the role you are applying.

We have acted for many clients in making representations to the DBS to remove information from an enhanced DBS certificate relating to an arrest or caution, and have successfully removed such records so that employers do not become aware of unfavorable past criminal record information.

Police Cautions Solicitors

Please get in touch today to discuss your case, we can usually offer reasonable fixed fees.

* Click Here for the Proscribed List Offences