The Disclosure and Barring Service (‘the DBS’) is a government organisation responsible for the reporting of convictions and other information to employers and other relevant organisations.

What data is held by the disclosure and barring service?

The Disclosure and Barring service holds three classes of information:

Class 1

Spent and unspent convictions, cautions, reprimands and final warnings.

Class 2

The class 1 information plus police intelligence information.  For example, this might include where a person has been arrested for a crime.

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 will depend on the type of the organisation.  As a result, if a person applied for a job at a local supermarket, only the class 1 information would be available.  This is because 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 from the Disclosure and Barring service.  This is called a ‘basic check’.

For many occupations an enhanced certificate can be required.  This could lead to the disclosure of information held that fall into classes 2 and 3.

There are obvious examples of such employers.  These will include 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 within the Disclosure and Barring service.  As a result, the outcome may well differ depending on the relevancy of the information to the role.

A recent Supreme Court decision in R (on the application of AR) (Appellant) v Chief Constable of Greater Manchester Police and
another (Respondents)  means that police forces can reveal whether individuals have been acquitted of criminal charges when issuing information for enhanced record checks.  The case establishes new guidelines in balancing an individual’s right to privacy when applying for employment against the need to protect public safety.

The full judgement in the case can be found here.

An enhanced criminal records certificate will include information on the basis simply of the chief constable’s opinion as to whether it “ought to be included in the certificate”.

Part of the reasoning given was that “In principle, even acquittal by a criminal court following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”

Is it 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.  It is not always easy to answer.  This is in part because we are awaiting some important judgments and a decision from the government in relation to some aspects of the Disclosure and Barring service.

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:

• cautions relating to an offence from a list agreed by Parliament
• cautions given less than 6 years ago (where individual 18 or over at the time of caution)
• cautions given less than 2 years ago (where individual under 18 at the time of caution)
• convictions relating to an offence from a prescribed list
• where the individual has more than one conviction offence all convictions will be included on the certificate (no conviction will be filtered)
• convictions that resulted in a custodial sentence (regardless of whether served)
• 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)
• 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)
• 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.

In relation to the latest decision at the Supreme Court, the following concerns were expressed as to how employers would treat the information:

“Nor does there appear to be any guidance to employers as to how to handle such issues. Even if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt.”

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 or occupation is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 but not subject to a disclosure by the Disclosure and Barring service then 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.  These reasons should include 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 or she will not be protected from the consequences of this.  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.  Please note, however, 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 Disclosure and Barring service processes.  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 you

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 are happy to advise, guide and make representations on your behalf, and if appropriate, advise on legal remedies in relation to the Disclosure and Barring service.

To discuss any aspect of your case please contact one of our solicitors at your nearest office.  Details can be found here.  Alternatively you can use the contact form below.