When an employer runs a check on me will they be able to see any old minor convictions?

Potential Employers and Criminal Record Bureau Checks

Often it will be the case that potential employers will wish to do as thorough background check on an individual as is reasonably possible before they decide to employ them. In many contexts this will include the employer wishing to do a Disclosure and Barring Service (DBS) check on that individual to see whether they have any criminal convictions.

Furthermore there will often be a disclaimer as part of the application process for that individual to state that they do not have any prior convictions.

Checks such as this are extremely important in certain jobs which may involve work with children but often are used just as good practice in other industries.

What would be the case if I have minor convictions from a long time ago?

Under the Rehabilitation of Offenders Act 1974 previous convictions can become spent after a certain period of time has elapsed. Under the act it is unlawful for an employer to discriminate against an individual due to a spent conviction.

The purpose of the act is to help people with few or minor convictions and is not intended to help people with serious convictions.

After how much time will a conviction become spent?

The time period to decipher when a conviction becomes spent depends upon the nature of the conviction – this is detailed in the Rehabilitation of Offenders Act.

Do I need to disclose any spent convictions when applying for a job?

You do not need to disclose spent convictions when applying for most jobs; however, there are certain jobs which require all convictions including spent convictions to be disclosed on application.

Will an employer be able to view any old minor convictions when running a DBS check?

The initial position in relation to this was viewed to be that employers would not be able to access information on old minor convictions when running a DBS check as under the Data Protection Act 1998 the police force would be infringing several of the data protection principles specified by the Act in retaining data relating to old minor convictions.

However, following a recent Court of Appeal decision this is no longer the case.

What was the subject matter of this decision?

The Information Commissioner initially received complaints from five different people that various police forces were retaining information that related to old minor convictions which they had been the subject matter of.

Four of the complaints arose from the convictions being disclosed as part of a DBS check and the other arose due to the individual requesting to know what information about her was being held by the police.

What action did the Information Commissioner take?

The Information Commissioner issued enforcement notices against five different Chief Constables to ensure that they deleted the information regarding the old convictions. This was appealed to an Information Tribunal where it was held that the convictions  should be deleted from the police national computer as their retention was viewed as an infringement of principles 3 and 5 of the Data Protection Act 1998 – that the data being held was excessive and was being kept for longer than was necessary.

This decision of the Information Tribunal was then appeal to the Court of Appeal.

What did the Court of Appeal say on the matter?

The Court of Appeal felt that it was necessary to stress that the issue here was not the actual retention of the records it was to do with the fact that the information could be disclosed when an individual was applying for a job.

What was the final decision of the Court?

The court looked at the requirement of data controllers to submit the purpose of how they will use the personal data collected when proving details to the Information Commissioners Office for inclusion on the data protection register.  As long as the purpose provided to the Information Commissioner by the data controller is lawful that data can be used in any way to fulfill that purpose.

What purpose did the police provide to the Information Commissioner when registering?

One of the main purposes identified by the police for retaining old data on the police national computer is to enable an accurate record of convictions can be supplied to the Crown Prosecution Service (CPS), the Courts and the DBS. It was viewed that due to this record needing to be complete the retention of old data could not be said to be excessive nor would it be held longer than was necessary for this purpose.

It was also stated by the Court that if the police reasonably believes that keeping a record of all convictions, however old or minor was useful to them then they should not be denied the right to do so.

What does this decision mean?

This decision means that it is lawful for the police to keep details concerning minor old convictions and if they do these convictions will be disclosed to a potential employer when running a DBS check on a potential employee. The provisions stated in the Rehabilitation of Offenders Act, however, will not be affected by this decision.