UK: Implementation of changes to criminal record filtering

19th November 2020

In July 2020, progressive changes to the filtering rules in England and Wales were announced by the government. These changes to the rules on what is disclosed and removed from standard or enhanced criminal record checks were issued by the Disclosure and Barring Service (DBS) in response to a Supreme Court ruling in 2019, following campaigning by Unlock over many years. While a date for the implementation of these changes had not been confirmed, the Ministry of Justice has confirmed that they are expected to come into effect on 28 November 2020.

Filtering rules determine the convictions and cautions that will no longer appear on standard and enhanced criminal record checks in England and Wales. Some cautions and spent convictions can become ‘protected’; once protected, they are ‘filtered’, meaning they won’t be disclosed in either standard or enhanced DBS certificates. Similar to the practice in Ireland, rules around disclosure of convictions are separate to filtering rules.

There are two main changes to the current filtering rules:

1. Reprimands, final warning and youth cautions are no longer disclosed: Regardless of the offence, reprimands, final warnings and youth cautions will no longer be disclosed on any DBS check.
2. Multiple convictions can be filtered: Provided the offence is eligible and didn’t lead to a suspended or custodial sentence, convictions can now be filtered from standard and enhanced DBS checks after the relevant time period has passed, even if there is more than one conviction or offence on record.

Unlock has produced a guide giving an outline of the changes, and a series of examples to help understand how and where the new rules will apply.

The implementation of these new rules follows changes made by the DBS to their IT system to guarantee that criminal records disclosure mirrors the new legislation. By the government’s own analysis, approximately 45,000 people are expected to benefit from these new rules. 

While there are two key changes to the filtering rules being implemented by the end of this month, many rules remain the same:

1. The list of offences (known as the “offence rule”): The list of offences that cannot be filtered has not changed. A list of common offences that can be filtered can be found through Unlock here. The full list of offences that cannot be filtered, published by the DBS, can also be found through Unlock here.
2. Prison sentences (known as the “sentence rule”): Convictions that resulted in a prison sentence (or suspended sentence) cannot be filtered.

• Time periods: The time periods before adult cautions and spent convictions can be removed remain the same. A caution received when over 18 is filtered after 6 years; a conviction received when under 18 at conviction is filtered after 5.5 years; and a conviction received when over 18 is filtered after 11 years.

While this is a welcome step in the right direction, there is still scope for more progressive changes to allow more people with convictions histories to move on with their lives.