The Rehabilitation of Offenders Act 1974 provides that criminal convictions, cautions, warnings and reprimands in respect of certain offences are deemed to be "spent" after specified periods of time. Spent cautions and convictions will generally not need to be disclosed. However, a person applying for an excepted post (including work with children or vulnerable adults) may be asked whether they have any unspent convictions and cautions. In addition, excepted posts qualify for checking through the Disclosure and Barring Service (DBS) by means of a standard or enhanced DBS certificate.

In 2013 the government amended the filtering rules for criminal record checks  to allow offenders with single convictions that are non-violent, non-sexual and non-custodial to have the offence filtered out of a DBS check after 11 years (unless the offender was a minor when they committed the offence, in which case this time period was reduced to five years and six months). However no such provision was introduced for persons with multiple offences, meaning that where an individual has more than one conviction (of any kind) these must be disclosed. Please note that the filtering rules are separate to the rules in relation to spent convictions.

In R (on the application of P and others) v. Secretary of State for Justice and others, the Court of Appeal (the Court) held that these filtering laws are incompatible with human rights legislation as they only benefit single conviction offenders and fail to adequately protect other individuals' right to a private life.

This case involved an individual suffering from schizophrenia who had multiple cautions for shoplifting as well as a conviction for a bail offence; as a result of these she was unable to get a teaching assistant role. The Court rejected the government's case that it was clearer to have a 'no multiple offenders filter' rule than to spend more time adjusting the filter depending on the circumstances. The judge stated:

"I recognise that where a pattern of offending behaviour is demonstrated, it is entirely legitimate to conclude that such information should be available to potential employers. The difficulty with the bright line, however, is that it is not a necessary inference that two convictions do represent a pattern of offending behaviour; indeed on many occasions they will not."

The Court went on to say that it should be possible to create a filter that takes into account the nature of any offences as well as the length of time that has passed since any convictions; alternatively a mechanism for review in specific circumstances could be introduced (as is the case with removal from the sex offenders' list).

As a result of this case there are now calls for the government to reform the criminal records system, although this will, in all likelihood, take a back seat in light of the snap election and Brexit. However if such changes are made it is likely that (1) fewer offences would appear on the criminal records register; (2) individuals would receive a greater degree of protection from minor offences that occurred in the past; and (3) there would be less serious implications in terms of employment prospects for minor re-offending.

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