Criminal records

Requesting information about criminal convictions from potential employees

Before you hire someone for a role, you may need to do a criminal record check.

A criminal record includes convictions and cautions. A caution includes conditional cautions, reprimands and final warnings.

For certain roles, criminal record checks are legally required, and any job offer should be made conditional on the results. These roles usually involve contact with children or vulnerable adults or require a professional qualification (see Spent convictions and excepted roles and occupations below).

Other types of roles or occupations may not need a criminal record check. However, as you have a duty to protect the health, safety and welfare of your staff, in some cases you may want to carry out a criminal record check if you believe that employing someone with a criminal conviction may pose a risk.

If you don't do a criminal record check, it may prove difficult to take disciplinary action against someone you later employ if they don't disclose their conviction when they should have.

If you do ask an applicant if they have a criminal record, you should do so when they have been short-listed for the role.

There are two areas of law to consider before you ask about criminal records or conduct a criminal record check:

1. Data protection: the UK General Data Protection Regulation and the Data Protection Act 2018 (DPA).

2. The Rehabilitation of Offenders Acts (or Orders in Northern Ireland) and their associated exceptions orders.

Data protection

If you request and process information relating to criminal offences, you must comply with the UK General Data Protection Regulation and the Data Protection Act 2018.

For general information, see our section on Data protection. You may also wish to refer to the Information Commissioner's Office's website, in particular its UK GDPR guidance and resources.

Lawful bases for processing criminal record data

Data protection laws require any information (including information obtained for a criminal record check) to be processed only if you have a lawful basis (reason) and if it's necessary.

There are 6 lawful bases for processing personal data, but for employment purposes, typically only 2 are relevant:

• It's needed to comply with a legal obligation (i.e. the role legally requires you to do a criminal record check); or
• It's necessary for your legitimate interest or that of a third party (such as other staff members).

If a criminal record check is not legally required for a role, you must think carefully about whether the role requires one. This often depends on whether hiring someone with a criminal conviction could pose a risk to your customers or other staff.

A criminal record check is also likely to be necessary for data protection reasons if the role could involve occasional or short periods of contact with children or vulnerable adults (e.g. a shop assistant) or where a degree of trust and honesty is required (e.g. a cleaner).

If a criminal record check is legally required, you must make an official request for one through a government website (see below).

Asking for criminal record data on a job application form

For confidentiality and data protection reasons, you shouldn't ask an applicant on the job application form if they have any criminal convictions. Instead, use another (separate) form to get this information from them.

Spent convictions and rehabilitation periods

A spent conviction is a criminal conviction that's considered to be forgotten after a period of time passes, known as the rehabilitation period.

The length of a rehabilitation period depends on the type of crime, length of sentence, and the offender's age when they were convicted.

More severe crimes with longer sentences will usually have longer rehabilitation periods, therefore taking more time before a conviction is spent (or forgotten).

The length of a rehabilitation period differs slightly for each country.

In Scotland and Northern Ireland, the rehabilitation periods start from the date of conviction.

In England and Wales, rehabilitation periods are based on the length of the sentence plus an additional specified period that depends on the crime the offender committed.

For more information on the rehabilitation periods for each country, see:

• GOV.UK (England and Wales)
• Gov.scot (Scotland)
• nidirect (Northern Ireland)

Note: The rehabilitation periods that apply depend on where the offender lives. For example, if they live in England, but the offence is committed in Scotland, the rehabilitation period for England will apply.

An offender with a spent conviction must be treated as a person who has not committed (or been convicted of, or charged with) a criminal offence, i.e. you must regard them as having a clean criminal record.

This means that any spent convictions they have should not be disclosed to, or requested by you, unless the applicant is applying to work for you in certain 'excepted' roles or occupations that require them to be given.

Spent convictions and excepted roles and occupations

Applicants applying for roles that involve some contact with children or vulnerable adults or that require a professional qualification, must disclose certain spent (forgotten) and unspent criminal convictions.

These are known as excepted roles or occupations and require nearly all criminal convictions and cautions to be disclosed (some old and minor convictions or convictions when they were under 18 don't need to be disclosed).

The list of excepted roles or occupations broadly covers:

• Working with a professional qualification, e.g. doctors, dentists, opticians, nurses and midwives, solicitors, pharmacists, teachers and vets.
• Working in the health service or social services where there is access to patients, people with disabilities, the young, the elderly, the sick or other vulnerable adults (including management of a private hospital or nursing home).
• Working in occupations involving the administration of justice, e.g. court officials, the police, probation officers, prison staff.
• Working in a role that involves contact with children (under 18) or vulnerable adults. In England, Wales and Northern Ireland these called roles in a 'regulated activity'. In Scotland, they are known as a 'regulated roles' and usually require membership of the PVG scheme.

Checking criminal records

You must apply to an official government scheme to check an applicant's criminal record if they are applying for roles that involve some contact with children or vulnerable adults or require a professional qualification.

The methods of obtaining a criminal record check and the type of information available vary slightly between England & Wales, Scotland and Northern Ireland.

England & Wales

Criminal record checks for England and Wales are undertaken by the Disclosure and Barring Service or DBS. The following types of criminal record checks can be done:

• Basic check: This is the only check that can be requested by the applicant themselves and not only by you. It only contains details of any unspent convictions.
• Standard disclosure: This will contain unspent convictions and cautions and certain spent convictions, but will usually exclude some old and minor convictions. It should be obtained for occupations and roles that are exempt and which do not involve regular contact with children or vulnerable adults (generally those requiring a professional qualification).
• Enhanced disclosure: This will contain unspent convictions and cautions and certain spent convictions (excluding some old and minor convictions) and will include any additional information held by the local police force that they reasonably consider to be relevant and appropriate to the role.
• Enhanced check with barred lists: This shows the same information as an enhanced disclosure check and whether the applicant is on the list of people barred from working with children or vulnerable adults (usually for roles that involve working with children or vulnerable adults in a regulated activity).

You can use the DBS online tool to find out which check is right for the applicant.

See the DBS guidelines on basic and standard and enhanced checks for more about checking an applicant's identity.

Note:

• You will break the law if you submit an application for a Standard, Enhanced, or Enhanced with Barred List(s) DBS check if the role is not eligible for them.
• You must notify the DBS if you dismiss or move an employee if you believe that they pose a risk to children or vulnerable adults. Failure to do so will also be a criminal offence.

Scotland

In Scotland, criminal record checks need to be carried out through Disclosure Scotland. The following types of criminal record checks can done:

• Level 1 disclosure (previously called a basic check): This is the only check that can be requested by the applicant themselves and not only by you. It only contains details of any unspent convictions.
• Level 2 disclosure (previously called a standard disclosure): This will contain unspent convictions and cautions and certain spent convictions, but will usually exclude some old and minor convictions. It should be obtained for occupations and roles that are exempt and which do not involve contact with children or vulnerable adults (generally those requiring a professional qualification).
• Level 2 disclosure with barred list check (previously called an enhanced disclosure): This will contain unspent convictions and cautions and certain spent convictions (excluding some old and minor convictions) and include if the applicant is on (or under consideration to be placed on) the barred lists for working with children or adults. It's only used for specific activities, such as adopting a child.
• Disclosures under the Protecting Vulnerable Groups (PVG) scheme: The PVG scheme is a membership scheme that people working with children or protected adults in regulated roles must join. Employers are usually required to start the application process. You can check if a role needs a PVG membership using the mygov.scot online service.

Northern Ireland

In Northern Ireland, criminal record checks need to be carried out through Access NI. The following types of criminal record checks can done:

• Basic check: This is the only check that can be requested by the applicant themselves and not only by you. It only contains details of any unspent convictions.
• Standard disclosure: This will contain unspent convictions and cautions and certain spent convictions, but will usually exclude some old and minor convictions. It should be obtained for occupations and roles that are exempt and which do not involve contact with children or vulnerable adults (generally those requiring a professional qualification).
• Enhanced disclosure: This will contain spent and unspent convictions and cautions but will usually exclude some old and minor convictions. It will disclose whether the applicant is on the list of people barred from working with children or vulnerable adults and can also disclose non-conviction information if the police believe it's relevant to the role. It should be obtained for occupations and volunteer roles where the applicant will be providing services to, or closely and regularly supervising, children or vulnerable adults, known as roles in a regulated activity.

Old and minor convictions and cautions

Although applicants for excepted roles and occupations must usually reveal all spent convictions, some old or minor ones will usually be removed from a criminal record check. The rules about this vary between each country.

England and Wales

The following old or minor convictions and cautions will usually be removed from the results of a Standard or Enhanced criminal record check, as they are protected from being disclosed:

• A conviction for a non-specified offence that didn't result in a prison (or suspended) sentence, received 11 or more years ago when they were an adult (18 or over).
• A caution for a non-specified offence, received 6 or more years ago when they were an adult.
• A conviction for a non-specified offence that didn't result in a prison (or suspended) sentence, received 5-and-a-half years ago or more, when they were under 18.
• Any caution, reprimand or a warning received when they were under 18.

A specified offence is one that will always be disclosed (i.e. never removed from a Standard or Enhanced criminal records check). The list of specified offences covers serious crimes, such as those of a violent or sexual nature or offences against children or elderly people. A non-specified offence is one that's not on this list.

Enhanced criminal record checks can include a protected conviction or caution if the police consider that it's relevant. For more information see the rules about which convictions and cautions can be removed from a criminal records check.

Northern Ireland

The following old or minor convictions and cautions will usually be removed from the results of a Standard or Enhanced criminal record check, as they are filtered (removed) from being disclosed:

• A conviction for a non-specified offence that didn't result in a prison (or suspended) sentence, received over 11 years ago when they were an adult (18 or over).
• A caution for a non-specified offence received over 6 years ago, when they were an adult.
• A conviction for a non-specified offence that didn't result in a prison (or suspended) sentence, received over 5-and-a-half years ago, when they were under 18.
• A caution (including restorative cautions) for a non-specified offence, or a diversionary youth conference received over 2 years ago, when they were under 18.
• An informed warning (at any age) for a non-specified offence, received over one year ago.

A specified offence is one that will always be disclosed (i.e. never removed from a Standard or Enhanced criminal records check). The list of specified offences covers serious crimes, such as those of a violent or sexual nature or offences against children or elderly people. A non-specified offence is one that is not on this list.

See the nidirect website for more information.

Scotland

The following old or minor convictions may be removed from the results of a Level 2 check, Level 2 with barred list check or PVG scheme check, as they are protected from being disclosed:

1. A spent conviction that's not in either the list of offences that must always be disclosed or the list of offences that must be disclosed according to rules.

2. A spent conviction that's in the list of offences that must be disclosed according to rules, but either:

• the conviction was over 15 years ago, and they were 18 or over at the time; or
• the conviction was over 7-and-a-half years ago and they were under 18 at the time; or
• they received a sentence of absolute discharge from a court, or discharge from a children's hearing.

See the mygov.scot website for more information.