How to Navigate the World of Spent and Unspent Convictions on a Criminal Record
Though a criminal record is just a document, it can carry lifelong consequences for you and your loved ones and can dictate where you work, where you live, where you can go, and a myriad of other conditions that impinge on your freedom. A criminal record contains a list of one’s past convictions and interactions with the police (including arrests) – a record of one’s interactions with the justice system. Employers, housing, the ability to freely travel, are affected by your criminal record and can continue to haunt you for decades to come.
In the UK, there are various types of criminal records maintained by the police, and their disclosure can depend on the employer that’s requesting a background check, and the type of role you are applying for. All recordable offences, cautions, and convictions are retained on the Police National Computer (PNC) until the individual turns 100 years old.
Types Of Criminal Records
Employers can check your criminal record using the Disclosure and Barring Service (DBS); they do so by requesting a DBS check. There are currently four types of DBS checks that employers can request:
1. A basic DBS check – this will show all unspent convictions and cautions. Every employer can request this type of DBS check, and you can apply for this one yourself, if you wished.
2. A standard DBS check – this will show any spent and unspent convictions, any reprimands, or final warnings received by the police for minor offences. Only specific employers can request this type of check – for example, if you’re applying for a role where you are working with children, or vulnerable adults.
3. An enhanced DBS check – this will include the information mentioned in a standard DBS check, along with any information held by the local police that is considered to be relevant to the role. This would include information where you may have been suspected of an offence, but not charged or convicted.
4. An enhanced DBS check with barred lists will include the information mentioned in an enhanced check and will mention whether you are on the list of people barred from performing the role. For example, if your name is on the sexual offender’s list, you will be barred from working with children.
Types of Offences:
Not every offence is recorded on your criminal record, and how the police deal with it – and whether you’re found guilty – largely influences what does and does not show up on a DBS check.
For very minor offences like speeding, they will not show up on a criminal record. However, failure to pay speeding fines and other low-level criminal offences that are tried in the Magistrate’s Court will be a part of your criminal record and will show up accordingly.
In many situations, minor offences can be resolved within the police station, by way of a caution, or an out-of-court disposal. Depending on the offender’s acceptance of guilt and remorse, and the severity of the offence, the police can choose to issue a ‘caution’, where you agree to the offence, and avoid facing a trial and a potential prison sentence. An out-of-court disposal, on the other hand, will place some obligations on you – either by way of community service, a rehabilitation order, or some other form of community resolution. However, both cautions and out-of-court disposals will still be reflected in your criminal record. Rejecting a caution or out-of-court disposal, and wanting to argue your case in front of a judge, will see your offence be sent to the Magistrate’s Court.
Most minor offences are summary-only, which means that they are tried and sentenced (if found guilty) within the Magistrate’s court. The magistrate’s court is the lower-level court; there is no jury, and three magistrates and a legal adviser will try the case and pass the relevant sentence. The maximum punishment that the magistrate’s can pass is a 6-month prison sentence (12 months if there are numerous offences), a financial penalty, or both. If the offence requires a harsher sentence, the magistrate’s will pass the case onto the Crown Court.
The Crown Court consists of a judge and a jury, and there is no limit to the type of sentence the Crown Court can pass. This means that all serious offences, or indictable-only offences are tried here. If one wishes to appeal a decision made at the magistrate’s court, the Crown court will hear the appeal.
What is a Spent vs Unspent Conviction?
Under the Rehabilitation of Offenders Act 1974 (ROA), eligible convictions or cautions become ‘spent’ after a specified period of time, known as the ‘rehabilitation period’. If a conviction is spent, you are not legally obligated to inform an employer, and they will not show up on a basic DBS check. However, on standard and enhanced DBS checks, a spent conviction will still appear.
An unspent conviction, on the other hand, will show up on a basic DBS check, and you are legally obligated to inform an employer or relevant authority when applying for a job, regardless of what area of work it may be in.
Depending on the severity of the offence, and how old you were at the time of being sentenced, the period of time for a conviction to become ‘spent’ can vary. For example, a conviction is spent immediately if the punishment was an absolute discharge. For a fine or compensation order, the conviction will be spent after the payment has been made. However, if you have been sentenced to more than 4 years in prison, your conviction will never be spent.
For a sentence between 2.5 and 4 years, your conviction will be spent 7 years after the end of your sentence, if you’re above the age of 18. For a sentence between 6 months and 2.5 years, your conviction will be spent 4 years after your sentence has been completed, and for a sentence of up to 6 months, your conviction will be spent 2 years after your sentence has been complete.
If you are below the age of 18, the rules are slightly more lenient. Instead of a maximum of 7 years after the end of your sentence, the time limit is reduced to 5.5 years. However, the 4-year rule still applies – if you face a prison sentence of over 4 years and you were below 18 when you were convicted, that conviction will never be spent.
Expunging or Clearing Your Criminal Record
Expunging or clearing a criminal record is an extremely difficult process, and there is no national process in place. Instead, you can submit a request to your local police force – but it is up to the police force to choose whether or not your criminal record should be expunged.
In order to do so, you can request to have your record deleted from the PNC, along with any associated DNA and fingerprints via the ‘record deletion process’. This is outlined in the guidance suppled by the National Police Chiefs’ Council here. The PNC contains information on your criminal record, any past convictions or interactions with the police, and any fingerprint or DNA records. Locally held records like custody photographs are not covered by this process, and are managed by chief officers in accordance with the Authorised Professional Practice (APP) – Information Management.
However, it is rare for convictions to be removed this way. Usually, records are deleted if there is objective proof that the allegations were unproven, the person was entirely innocent, or if the arrest was unlawful.
The only other option would to be appeal your conviction via the appellate court. This can normally be done right after the conviction, and you should seek out legal advice to file an appeal. However, if you accepted your guilt (in turn for a lesser sentence), it will be extremely difficult to appeal the court’s decision.
Conclusion
A criminal record can carry lifelong consequences and can affect you and your family members – based on the effect it can have on your career, your reputation, where you live, where you can travel to, and a myriad of other societal factors. Expunging a criminal record is not easy, and accepting a caution or an out-of-court disposal can have lifelong effects. At Stuart Miller Solicitors, we understand how challenging it can be to navigate daily life with a criminal record. Contact our office today for a friendly no-obligation conversation about how we could help you.
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