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Ben Jones
Ben Jones, UK Lawyer
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Is it possible to get the criminal record of a legal caution

Resolved Question:

Is it possible to get the criminal record of a legal caution removed?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Are you subject to formal criminal checks?
Customer:

This is on behalf of my wife, who is not currently subject to checks, but may well wish to undertake work which would make her subject to a disclosure process. She was given a caution (quite unnecessarily) because of my stupidity in calling the emergency services after a domestic dispute which was caused by me. Unfortunately the police had moved to a position where one party in a domestic dispute had to be arrested and she refused legal advice and accepted a caution for abh. She was a teacher and was just coming up to retirement age, so the question of a CRB check was not a problem at the time. However she has been fearful of the caution being raised, so has not applied for work - either paid or unpaid - which my be subject to a check since.

Ben Jones :

Thanks for clarifying your position. Under the Rehabilitation of Offenders Act 1974 (“ROA”), subject to certain exceptions, those convicted of a criminal offence who have not re-offended during a specified period from the date of conviction will be deemed 'rehabilitated' and their convictions would be classified as 'spent'. Spent convictions do not have to be declared if an employer is asking if you have a criminal record, unless the employment is for an exempt position (you should be told in the application form if the position is exempt). However, a caution is not a criminal conviction and becomes spent immediately so if she is asked whether she has an unspent or spent conviction or a criminal record then she can say ‘no’.

If she is going to be subjected to a Disclosure and Barring Service (DBS) check (this replaced the old CRB check), then whether a past conviction will appear on it depends on what level DBS check is being undertaken. There are three main types of DBS check:



  • Basic - contains only unspent convictions

  • Standard – contains spent and unspent convictions, as well as cautions, reprimands and final warnings

  • Enhanced – same as a Standard but also includes local police intelligence considered relevant to the application


However, recent legislation has introduced a filtering system for some offences and they will not show up on a DBS check after a specified period of time has elapsed. The current guidelines are:

For those aged 18 or over at the time of the offence an adult caution will be removed from Basic and Standard checks after 6 years have elapsed since the date of the caution – and if it does not appear on the list of exempt offences, which you can find here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/229718/list_of_offences_that_will_never_be_filtered_from_a_criminal_record_check_v1.1__xls_.xls

The issue is if she is due an Enhanced check (if she is going to work with

Children or vulnerable adults), in which case the caution will not automatically be removed and it can always be mentioned in the ‘additional information’ section if the police believe it is relevant to the current application. So the answer to your question is that under certain circumstances, the caution will be automatically filtered out after 6 years have passed since the offence took place, however in Enhanced checks it can remain for life, although there is no guarantee that it will actually show up.

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

Customer:

Thank you Ben provides all the necessary information.

Customer:

I meant, of course, "that" provides.....

Ben Jones :

you are welcome, all the best

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