Certainly, Simon. Here's a clear breakdown of the key points based on the
emails and the legal framework detailed in the webpage:
What
is Allowed:
- Rehabilitation of Offenders Act (ROA) 1974:
- Convictions can become "spent" after a
specific rehabilitation period, depending on the sentence and the
individual's age at the time of conviction.
- Custodial sentences of up to 4 years (excluding
Schedule 18 offences) become spent after 7 years from the sentence's
completion, including any license period.
- Life sentences, sentences over 4 years for violent or
sexual offences, and certain severe offences (e.g., Schedule 18 offences)
are never spent.
- Right to Access Your Data (GDPR):
- You have the right to access all personal data held
about you through a Subject Access Request (SAR). This includes all
arrest and conviction records.
- Non-conviction information (e.g., cases marked as
"No Further Action" or "Not Guilty") can be included
but cannot typically be removed unless specific criteria are met.
- Eligibility for Record Deletion:
- Non-convictions such as cautions, warnings, or
records marked as "NFA" may be eligible for deletion through
the Record Deletion Process (RDP). These are reviewed case-by-case by the
police force responsible.
- Records for offences resulting in a pardon or royal
prerogative of mercy are eligible for deletion if actioned by the police
force.
- You can apply for the removal of incorrect data or
data taken unlawfully (e.g., mistaken identity or no crime committed).
- Impact of DBS Filtering Rules:
- DBS Filtering rules determine what is disclosed for
employment purposes. Certain spent convictions and cautions may no longer
appear on DBS certificates.
- A list of specified offences will never be filtered
from a DBS check, even if considered spent.
What
is NOT Allowed:
- Deletion of Convictions:
- Court convictions (whether spent or unspent) are
retained on the Police National Computer (PNC) until the individual is
100 years old.
- There is no process under the ROA or GDPR to delete
convictions from the PNC unless they are successfully challenged As “Inaccurate” Or “Unlawful.”
- Use of SAR for Employment Purposes:
- A Subject Access Request disclosure, which includes
all arrests and convictions, is for personal use only. It cannot be used
for employment purposes.
- Sealing Records:
- The UK does not have a legal provision for
"sealing" criminal records. Spent convictions remain on the
PNC, even if not disclosed for certain purposes.
- Expungement Legislation:
- There are no current legislative frameworks in the UK
for the full expungement of convictions, although certain pardons and
specific processes (e.g., for decriminalized offences) may apply.
- Exceptions for Certain Professions:
- Spent convictions may still need to be disclosed for
professions listed under the ROA (Exceptions Order) 1975, such as those
working with children or vulnerable adults.
Eligible
Records for Review Under the Record Deletion Process (RDP):
- Penalty Notices for Disorder (PND):
- Eligible for review and possible deletion if deemed
appropriate by the owning police force.
- Cautions (Adult and Juvenile):
- Includes Youth Cautions, Adult Cautions, and
Conditional Cautions.
- Final Warnings (Juvenile):
- Can be reviewed under the RDP if eligibility criteria
are met.
- Reprimands (Juvenile):
- Eligible for consideration for deletion.
- Conditional Discharges and Absolute Discharges (Court-issued):
- May qualify for deletion under grounds such as errors
or incorrect processing.
- Arrests Not Resulting in Charge:
- Includes cases marked as "No Further
Action" (NFA) or dropped charges.
- Cases with Discontinuance (Minor Offences):
- Applicable where proceedings were discontinued for
minor offences without charges.
- Biometric Data Retention:
- DNA or fingerprints unlawfully taken or approved for
retention under mistaken identity are eligible for deletion under the
Protection of Freedoms Act 2012.
- Non-conviction Qualifying Offences:
- Biometric data retained for qualifying offences can
be reviewed, with approval by the Biometrics Commissioner or District
Judge.
Records
NOT Eligible for Deletion:
- Court Convictions:
- Retained on the Police National Computer (PNC) until
the individual is 100 years old.
- Includes Conditional and Absolute Discharges issued
by courts.
- Youth Custody and Life Sentences (Schedule 18 Offences):
- Excluded from rehabilitation under the ROA and cannot
be deleted.
- Penalty Fines:
- If tied to convictions, fines are recorded alongside
conviction details and are not removable.
- Non-convictions Approved for Retention:
- Serious offences with biometric retention approvals
are not eligible unless reviewed under specific grounds.
- Profession-specific Exceptions:
- Professions listed under the ROA Exceptions Order
1975 may require disclosure of spent convictions (e.g., working with
children or vulnerable groups).
Clarifications
on Penalty Fines, Reprimands, and Warnings:
- Penalty Fines: If tied to cautionary events or
disorder notices, may qualify for deletion under grounds such as mistaken
identity or incorrect processing.
- Reprimands: Juvenile reprimands can be reviewed for deletion under the RDP.
- Warnings: Final warnings (juvenile or adult) may be deleted depending on
circumstances.
Legal
Frameworks Supporting Record Deletion:
- Rehabilitation of Offenders Act 1974 (ROA):
- Provides rehabilitation periods for spent convictions
but does not authorize deletion of court convictions.
- Data Protection Act & GDPR:
- Non-conviction records may be removed under rights to
erasure if they are no longer legally necessary.
- Protection of Freedoms Act 2012:
- Governs the destruction of biometric data taken
unlawfully or based on mistaken identity.
- Police Act 1997:
- Addresses DBS disclosures and inclusion of
non-conviction information for employment purposes.
Additional
Points for Advocacy and Understanding:
- Impact of DBS Filtering Rules:
- Determines which spent convictions or cautions are
disclosed for employment purposes.
- Minor offences may no longer appear on DBS
certificates; severe offences are always disclosed.
- Youth-specific Provisions:
- Sentences for offences committed under 18 follow
adjusted rehabilitation periods, except exclusions like life sentences
and Schedule 18 offences.
- Eligibility for Pardon or Mercy:
- Convictions removed due to a pardon or royal
prerogative of mercy are fully deleted from the PNC.
- Judicial Recommendation or Public Interest:
- Courts may recommend deletion if supported by
judicial review or public interest concerns.
- Future Legislation:
- ACRO advises querying the Home Office regarding
potential future frameworks for expungement or sealing criminal records.
Next
Steps for You:
- Record Deletion Application: If you’re eligible, you can
submit a formal application through ACRO for the deletion of specific
non-conviction records.
- Judicial Review: For records causing human
rights infringements, you may pursue a judicial review if deletion is
refused.
- Legal Advice: Consider seeking specialized legal guidance to explore any
potential challenges to data accuracy or processing.
Let me know if you'd like further
clarification on any of these points or assistance with updating your
documentation!