What Data is Held?
The DBS holds three classes of information:
Class 1: spent and unspent convictions, cautions, reprimands and final warnings
Class 2: class 1 information plus police intelligence information (for example the fact that someone has been arrested for a crime)
and
Class 3: A list of people on ‘barred lists’ who are prevented from working with children or vulnerable adults
What can an employer require?
This depends on what the organisation is. So, for example, if you applied for a job at a local supermarket, only class 1 information would be available, as the job is not sensitive in any way. In such a situation the certificate available would merely show whether there were any unspent convictions that ought to be disclosed. It would be the prospective employee who would request the certificate (called a ‘basic check’).
For many occupations, an enhanced certificate can be required, which could lead to the disclosure of class 2 and 3 information.
There are obvious examples of such employers, for example, the police service, or professions such as solicitors. But there is also a very wide range of organisations who employ people who may come into contact with children or adults, such as nursing or childcare.
What is on an enhanced certificate?
Unspent convictions will appear on the enhanced certificate.
However, whether spent convictions and police intelligence appear depends on the application of filtering guidelines and individual decision making. So, it may well differ depending on the relevancy of the information to the role.
Surely, it’s not fair that a spent conviction, an allegation or an arrest not resulting in prosecution will be disclosed?
This is one of the most frequent questions that we receive, and it is not always easy to answer, in part because we are awaiting some important judgments and a decision from the government in relation to some aspects of DBS.
The starting point is that it is likely that DBS will continue to retain all conviction and intelligence information. This follows a key recommendation following the Soham murders.
The issue for most people is not so much the storing of the information, but the disclosure of irrelevant information.
There is a complex filtering process which will lead to the inclusion or removal of information:
The rules as to when a conviction or caution will be filtered are set out in legislation. This states that a certificate must include the following:
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- cautions relating to an offence from a list agreed by Parliament
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- cautions given less than 6 years ago (where individual 18 or over at the time of caution)
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- cautions given less than 2 years ago (where individual under 18 at the time of caution)
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- convictions relating to an offence from a prescribed list
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- where the individual has more than one conviction offence all convictions will be included on the certificate (no conviction will be filtered)
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- convictions that resulted in a custodial sentence (regardless of whether served)
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- convictions which did not result in a custodial sentence, given less than 11 years ago (where individual 18 or over at the time of conviction)
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- convictions which did not result in a custodial sentence, given less than 5.5 years ago (where individual under 18 at the time of conviction)
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- A list of offences which will never be filtered from a criminal record check has been taken from legislation.
The list includes a range of offences which are serious, relate to sexual or violent offending or are relevant in the context of safeguarding. It would never be appropriate to filter offences on this list. Also, the legislation covers equivalent offences committed overseas.
Positions where filtering does not apply
There are a small number of defined positions where details of all convictions and cautions may be taken into account. These positions do not come through the DBS process. Some examples are police vetting and firearms licence applications.
If the position/occupation is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 but not subject to a disclosure by the DBS; the employer is entitled to ask about, and receive information about, all spent convictions and cautions.
The employer should, however, follow existing guidance and conduct a case-by-case analysis of any spent convictions and cautions and consider how, if at all, they are relevant to the position sought.
It would be advisable for the employer to keep records of the reasons for any employment decision (and in particular rejections), including whether any spent convictions or cautions were taken into account and, if so, why.
If the employee fails to disclose any spent convictions or cautions when required by law to do so, he/she will not be protected from the consequences of this (i.e. the Rehabilitation of Offenders Act will not apply).
Is there anything I can do?
You need to understand before an application is made what is likely to be disclosed. That will enable you to act quickly if notified that disclosure is to be made (but please note that the police are not obliged to notify you in advance).
It is also important to note that the filtering process does not deal effectively with police intelligence information, for example, arrest not resulting in prosecution. The police will apply ‘statutory disclosure guidance’ alongside a ‘Quality Assurance Framework’ when making a disclosure decision.
You will be able to make representations to the ‘Independent Monitor’, and in some instances, it may be possible to take court action to prevent future disclosure.
We have seen a large number of court challenges to the DBS processes, and the High Court ordered another significant change as recently as October 2017 (R (R) v The National Police Chief’s Council & Anor [2017] EWHC 2586 (Admin)).
How we can assist
There is no instant answer that can be given to the often-complex scenarios that we are presented with.
The disclosure of irrelevant information can be extremely harmful, and therefore each case must be analysed with the utmost care to ensure against wrongful disclosure.
We have an intimate understanding of the DBS process and are happy to advise, guide and make representations on your behalf, and if appropriate, advice on legal remedies.
To discuss any aspect of your case please contact one of experienced team of criminal defence lawyers.