The retention and disclosure of criminal records

This note sets out the rules in England and Wales governing the retention and disclosure of conviction and non-conviction information held on the Police National Computer and the Police National Database.

Information held by the police

An individual who is convicted of a recordable offence will have a “nominal record” of that conviction placed on the Police National Computer. Nominal records will also be created for individuals who are cautioned, reprimanded, warned or arrested for such offences. An individual’s nominal record is retained until his 100th birthday.

The Police National Database is used to record details of “soft” police intelligence, for example details of criminal investigations that did not lead to a conviction. This intelligence will generally be retained for a minimum of six years, longer if it relates to allegations of a serious offence or if the individual concerned is considered to pose an ongoing risk.

Criminal record checks

When a person applies for a so-called “excepted position”, then he or she may be required to provide details of his criminal record by way of a standard or enhanced criminal records check from the Disclosure and Barring Service (formerly the Criminal Records Bureau). Excepted positions cover (for example) work with children or vulnerable adults or roles in certain licensed occupations or positions of trust (e.g. police officers, solicitors).

The disclosure of non-conviction information and old and minor convictions

There has been some debate over two particular issues relating to criminal records checks: the disclosure of non-conviction information and the disclosure of old and minor convictions.

The Government legislated (via the Protection of Freedoms Act 2012) to introduce a number of new safeguards relating to the disclosure of non-conviction information, such as a new independent disputes process.

Legislation introducing a new filtering mechanism to restrict the disclosure of old and minor convictions came into force on 29 May 2013. This followed a Court of Appeal ruling in January 2013 that the mandatory and blanket disclosure of convictions as part of a criminal records check was incompatible with Article 8 of the European Convention on Human Rights (right to respect for private life). 

A judgment of the Supreme Court in January 2019 said that two specific aspects of the filtering mechanism, concerning multiple convictions and the disclosure of warnings and reprimands received by children, were disproportionate and therefore incompatible with Article 8.

There have been calls for wider reform of criminal records disclosure, including from the Law Commission, the Justice Committee, Charlie Taylor in his review of youth justice and David Lammy in his review into the treatment of and outcomes for BAME individuals in the criminal justice system.