Deletion of Absolute & Conditional Discharges

Aug 5, 2020Data Protection & Privacy, Police Record Deletion

What can you do about an absolute discharge once you receive one, and what are the implications of an absolute discharge and also a conditional discharge? Is it possible to have an absolute or a conditional discharge deleted from the PNC or is it only possible to appeal an absolute or conditional discharge?

Deletion of Absolute Discharges & Conditional Discharges

Deletion of Absolute Discharges & Conditional Discharges

Absolute and conditional discharges are issued by courts in England and Wales, most often they are issued by Magistrates Courts, but can be issued by Crown Courts.

An absolute discharge or a conditional discharge can be ordered by a court where the Court feels it would be ” inexpedient to inflict punishment”. Typically this means where the offence is very minor, and the court feels that the defendant has already essentially been punished enough.

For example for a minor drugs possession case, or a minor assault where there are no aggravating features, the court may feel, if the defendant has already spent a night in police custody, and where genuine remorse has been expressed, that an absolute or conditional discharge is appropriate.

If an absolute discharge is issued, then that would be the end of your case. If you received a conditional discharge, the court discharges you but subject to the condition that you commit no further offences for up to three years. If you breach the order, then you can be resentenced, and the conditional discharged is voided. Typically a discharged period would last for 12 months.

What are the consequences of an Absolute or Conditional Discharge?

There are a number of consequences if you are absolutely or conditional discharged.

The first consequence is that the discharge will be recorded on the Police National Computer (PNC). The PNC is the central repository of all criminal records, and is the primary system that all DBS checks are run against.

DBS Checks and Absolute and Conditional Discharges

There three levels of DBS check; basic, standard and enhanced.

For a basic check an absolute discharge will be “spent” immediately and will not show.

For a conditional discharge it will become “spent” on the last day of the order. So if the conditional discharge is for 12 months, the conditional discharge will become spent after 12 months. After 12 months it will not longer show on a basic DBS check.

Standard and Enhanced DBS Checks

For a standard and Enhanced DBS check, both an absolute and conditional discharge will become “protected” after 11 years and will not show after that point – namely after 11 years the discharge will become filtered.

The two exceptions to this are if the absolute or conditional discharge was issued for an offence that was on the DBS’s list of unfilterable offences.

Also facts related to the discharge can be disclosed on an enhanced DBS check if the police think they are relevant to regulated role (namely one related to work with children or vulnerable adults).

ACRO Police Certificates

For the an ACRO police certificate, which are typically required for long term Visa or citizenship applications, ACRO apply the “Step Down” model.

The step down model does not specifically refer to conditional discharges or absolute discharges, but in practice ACRO lumps them under the “conviction” heading – and so they will be disclosed for 20, 15 or 12 years on your Police Certificate, depending on the offence category (A, B or C).

After the step-down period has elapsed, a Police Certificate will state “no live trace”. If you have never been convicted or cautioned, then a Police Certificate will simply state, “no trace”. A “no live trace” record will therefore tell any foreign nation that you have a criminal record (albeit an old and/or minor one) and this will often precipitate foreign embassies to ask further questions, and will likely request a complete history of your criminal record.

Can Absolute or Conditional discharges be overturned, appealed or deleted?

In the first instance you should always consider trying to appeal your absolute or conditional discharge, if you believe you were wrongly issued one.

You will need to appeal your absolute or conditional discharge from the Court that issue you the record, if it was the Magistrates Court you will need to appeal your absolute or conditional discharge to the Crown Court. If the Crown Court issued you with the discharge, you will need to appeal your absolute or conditional discharge to the Court of Appeal.

You will need to act promptly as there are set time frames for these appeals. If you are out of time, you can still appeal your absolute or conditional discharge, but you will need to provide good reasons for being out of time.

If you have appealed your absolute or conditional discharge, and this has failed, you can potentially appeal your discharge to the Criminal Cases Review Commission (CCRC); this is a very slow process, and you do need to show that something has gone seriously wrong in your case. It cannot just be the case that you are unhappy with the verdict.

If you have appealed your absolute or conditional discharge and this has failed, or you just don’t think you have a basis for appeal (for example because you pleaded guilty, and you didn’t  challenge the prosecution’s case) is there anything that you can do?

Deletion of Absolute and Conditional Discharges?

If you have read this far in our article, this section is probably the part you are most interested in.

Most likely your absolute or conditional discharge order is causing issues with respect to overseas travel/citizenship, or possibly employment.

So, if you cannot appeal your absolute or conditional discharge order, is there someway to get it removed from the PNC?

At present ACRO/NPCC guidance on the deletion of records from the PNC states that discharges cannot be deleted … however please read on …

… ACRO’s website states that if you were “issued a Conditional Discharge or an Absolute Discharge in Court” then you are ineligible to apply for deletion. However you will note that they make a distinction between a discharge and “a Court Conviction (as an adult or juvenile)” – namely they do not consider a discharge, in the same way as a conviction. They directly state that a “conviction” can not be overruled by the police. They state “Individuals cannot apply to have a court conviction deleted under the RDP because chief officers cannot overrule the convictions handed down by the courts.  However, if new evidence emerges, there is an opportunity for you to apply to the court to appeal.”

So there is clearly a distinction between the two, namely a discharge is not a conviction.

The reasoning for this distinction stems from the case of  R v P [2006] EWCA Crim 2689. In this case the defendant had been charged with fraudulently failing to disclose a “conviction” – namely a conditional discharge. She had applied for a role as a civilian staff member in the MET, and had not disclosed her conditional discharge during the recruitment process.

The Court concluded that a discharge order was not in fact a conviction, and was only a finding of guilt before a Court – the case against the defendant was dismissed.

What this means is that a conditional or absolute discharge are in an odd hinterland between being a criminal conviction, and something akin to a simple police caution (absolute discharge) and a conditional caution (conditional discharge). The main difference however (at present) is that a caution is amenable to deletion under the NPCC’s deletion process, but a discharge is not. In our opinion this is wrong and is open to challenge under the GDPR/Data Protection Act 2018.

Deletion of Absolute and Conditional Discharges from the PNC

All criminal records, ranging from the most serious convictions, all the way down to the most minor records, such as Penalty Notices, are managed by the police force who initiated the case. The police force concerned is, in Data Protection Act vernacular, the “Data Controller” – at present the NPCC, the body that sets down the rules in relation to the management of the PNC, states that “conviction” records cannot be deleted as they were issued by a court, however there is actually nothing in statutory law that says they must do this – and they do, at the very least, acknowledged a distinction between a “conviction” and a discharge.

In 2009 there was a judgement (the “Five Constables Case”) which decided that there must be a “complete record” of all cautions, convictions and arrests, and these could be kept until someone was 100 years of age, but this case was decided under the old 1998 Data Protection Act, and has not been tested since the introduction of the new 2018 Data Protection Act (DPA), and the GDPR. The GDPR and the 2018 DPA put a much greater emphasis on the rights of “data subjects” and the right to erasure; records can only be retained if there is a legitimate policing purpose.

Absolute and conditional discharges are very often issued for offending that is right at the lower end of the spectrum , and could often have been dealt with by a police caution. In our view discharges, as they are not legally considered to be convictions (although in practice the DBS/ACRO treats them as such) should be amenable to deletion from the PNC, and we are looking for a suitable client(s) to challenge this point.

2021 Update

The High Court has decided that the 100 year PNC retention rule with respect to convictions should remain in place. You can read the judgement here: QSA & Ors, R (On the Application of) v National Police Chiefs’ Council & Anor

In the judgement the Court endorsed the retention of all conviction records until a data subject reaches 100 years of age. Conditional and Absolute Discharges were not directly mentioned in the judgement, and so there may still be room to distinguish Discharges from convictions for the purposes of PNC record retention, but this judgement will certainly make any challenge much harder. In our opinion the ruling gives a good indication of how the Court would decide a challenge to the retention of Discharges. In our assessment any challenge would need to be pursued all the way to the Supreme Court/Europe.

Underlining this belief, we also separately applied to the national lead on police information management, Commissioner Dyson, who gave evidence in the above case. In our case Commissioner Dyson refused to delete a historic conditional discharge from the PNC. Although sympathetic to our client’s case, he underlined the police’s view that they require a “complete record” of all Court issued records as they continue to serve a necessary policing purpose. Our client in this case did not have the time/resources to pursue the matter to Court. The police, for the foreseeable future, will therefore continue to treat Discharges as if they were convictions for the purposes of their PNC retention policy.

In our opinion taking a challenge against the 100 year retention rule with respect to Discharges would require a concerted effort, appealing the case to the Supreme Court/European Court of Human Rights. If such an appeal is possible it would take a number of years, and would entail extensive costs – some of which may possibly be funded by crowd funding, but would likely require significant funds from any potential litigant. We unfortunately do not provide legal aid.  

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