Australia Criminal records in each state of Australia are covered by state law. In New South Wales, the relevant legislation is the Criminal Records Act 1991. Under the Act, an offender's criminal record may become spent if they do not re-offend for a period of 10 years. Offenses resulting in a prison term of more than six months will not become spent. Additionally, for certain employment occupations (e.g. education or child services), a "full disclosure" check is required, and spent convictions are still visible.
Canada In June 2018, the
Parliament of Canada enacted the
Expungement of Historically Unjust Convictions Act, in order to further promote
LGBT rights and cancel out certain criminal laws that were once effective. Under the Act, the
Parole Board of Canada must order expungement of a conviction in respect of an offence that relates to acts of
gross indecency,
anal intercourse or
buggery, as defined prior to 1969 and later on under the now repealed section 159 of the
Criminal Code, if the activity for which the person was convicted was between persons of the same sex, the persons other than the person who was convicted had given their consent to participate in the activity, and the persons who participated in the activity were 16 years of age or older at the time the activity occurred. When notified of the expungement order, the
RCMP and any federal department or agency must destroy or remove any judicial record of the conviction to which the expungement order relates that is in its repositories or systems. Provincial and municipal police forces and courts must also be notified of the expungement order. The person convicted of the offence is then deemed never to have been convicted of that offence.
Europe The European Court of Human Rights has ruled that a person has a right to have their convictions erased from all records after the passing of certain time. As of September 2020, there is currently a case pending with the Court which aims at the ruling that permanent keeping of the records is excessive.
New Zealand Expungement in
New Zealand is regulated by the
Criminal Records (Clean Slate) Act 2004.
South Africa In 2008 there was an amendment to sections 2 and 3 of the South African Criminal Procedure Act (51 of 1977) known as the Criminal Procedure Amendment Act (65 of 2008). This new law came into effect on 6 May 2009. In summary, the new law says that those convicted of a minor offense, determined by the type of sentence imposed, 10 or more years ago, qualify for the expungement of their criminal record. The sentence must have been a suspended jail term, correctional supervision or a fine.
United Kingdom In the
United Kingdom the term "stepping-down of convictions" is used. The relevant legislation is the
Rehabilitation of Offenders Act 1974. Offences punished by less than five years' imprisonment become spent after a period of time depending on the severity of the sentence; they remain on the offender's criminal record, but are not revealed in basic criminal record checks by the
Disclosure and Barring Service (DRB) or
Disclosure Scotland, are
inadmissible as evidence in certain circumstances, and in most cases may not be used as a reason to refuse or terminate insurance or employment. In the data retention model of the
Police National Computer, arrests which do not lead to a finding of guilt "step down" as soon as the relevant decision is made (typically a "not guilty" verdict or a dismissal of charges) and become visible to law enforcement only. Records of cautions and minor convictions do not step down and remain on the PNC and on enhanced DRB checks until the offender's 100th birthday. Since the passing of the
Protection of Freedoms Act 2012, people convicted for homosexual acts between consenting adults under section 12 of the
Sexual Offences Act 1956 can apply to have the conviction totally removed from their criminal record. Clause 96 confirms the effect of a successful application would ensure the person is considered as having not committed, nor been charged, prosecuted or convicted of a homosexual act.
United States In the United States, most states allow for expungement of criminal records, though laws vary significantly by state. The availability of expungement and the type of charge or conviction that may be expunged will depend upon the laws of the state in which the case was prosecuted. In some states, once sealed or expunged, all records of an arrest and/or subsequent court case are removed from the public record, and the individual may legally deny or fail to acknowledge ever having been arrested for or charged with any crime which has been expunged. Even after expungement, other states may maintain a public or confidential record of the charge and its disposition.
Eligibility for expungement State expungement Eligibility for an expungement of an arrest, investigation, detention, or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased. Requirements may include one or more of the following: • Fulfilling a waiting period between the incident and expungement; • Having no intervening incidents; • Having no more than a specified number of prior incidents; • That the conviction be of a nature not considered to be too serious; • That all terms of the sentence be completely fulfilled; • That no proceedings be pending; • That the incident was disposed without a conviction; and • That the petitioner complete probation without any incidents. Types of convictions that are often not eligible for expungement include: States have taken significantly different approaches when it comes to expungement for controlled substance violations such as marijuana and hashish. Typically, only convictions of possession or possession with the intent to distribute are eligible for expungement. Factors such as the weight/amount of the particular substance, age of the offender, and the number of offenses may impact eligibility for expungement as well. For example, in New Jersey, the threshold is 25 grams for marijuana and 5 grams for hashish if the offense occurred when the offender was 21 years of age or younger. Procedures for obtaining an expungement are different in each state, but tend to follow a similar process: • The petitioner verifies his or her eligibility for expungement under state law; • The petitioner prepares a petition for expungement, often using a standard petition form; • The petitioner files the petition with the court where the conviction occurred, and serves copies of the petition on other interested parties such as the prosecutor's office; • The court holds a hearing on the petition to verify that the petitioner is eligible for expungement and that the grant of expungement is proper; • The court issues an order either granting or denying the petition.
California California's expungement law permits someone convicted of a crime to file a Petition for Dismissal with the court to re-open the case, set aside the plea, and dismiss the case. In order for one to qualify for expungement, the petitioner must have completed probation, paid all fines and restitution, and not currently be charged with a crime. The CR does not remove or expunge anything negative from the individual's record; however, it places something positive on it. Among other requirements, the applicant must live in California and have done so for at least 5 consecutive years prior to applying, and been law-abiding for 7 years starting from the sooner of their release from prison or court supervision. After they meet all requirements and receive a CR, certain rights of theirs are restored and a request for a
pardon is automatically sent to the governor. California Penal Code 1203.4 allows most types of convictions may be expunged. To qualify, the person must have completed probation, satisfied all financial obligations, not currently be facing charges or court supervision, and not have been sentenced to prison or parole. California law allows an individual to reduce a "wobbler" offense from felony to misdemeanor, which will effectively restore firearm rights, provided that the individual has not been convicted of another felony or has not lost his or her firearm rights for another reason. Juvenile criminal court records remain unless the individual petitions to have them sealed. This may be done when they reach their 18th birthday, even though some states provide for automatic expungement of certain juvenile records regardless of age.
Federal expungement There is no post-conviction relief available in the federal system, other than a
presidential pardon. Congressman
Charles B. Rangel proposed the Second Chance Act in 2007, 2009, and 2011, which was intended to "[amend] the federal criminal code to allow an individual to file a petition for expungement of a record of conviction for a nonviolent criminal offense".
Washington, D.C. In
Washington, D.C., the Second Chance Act (2022) which goes into effect in 2027 will automatically seal and expunge felony records for some felons.
Firearm rights restoration One of the major benefits for the individual of expunging a criminal record is that there is a chance the individual may regain their right to possess a firearm. Federal laws deprive individuals with felony and domestic violence offenses of their firearm rights. Some states also have statutes depriving individuals of certain gun rights, usually for a definitive period of time. Expungement may restore
gun rights in some states but will not be sufficient to restore firearms rights in others. Seeking restoration of firearm rights may require that the petitioner specifically request restoration of those rights, or may require that the petitioner obtain a
pardon that fully restores his or her civil rights. == See also ==