The DBS is a government organisation responsible for reporting convictions and additional information to employers and other relevant organisations. The information that they report to employers and other organisations can vary depending on which sector they are in and the reason for the DBS request.
What Data is Held?
The DBS has three different 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)
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 is dependent on the type of organisation. If you applied for a job at a neighbourhood grocery, for example, only class 1 information would be exposed because the position isn’t sensitive in any manner. The certificate available in this circumstance would only reveal whether there were any unspent convictions that needed to be disclosed. The certificate (sometimes known as a ‘basic check’) would be requested by the potential employee.
Many occupations may demand an enhanced certificate, which could result in the revealing of class 2 and 3 information.
The police force, for example, or professions like solicitors, are apparent examples of such employers. However, a wide range of organisations, such as nursing and childcare, employ employees who may come into touch with children or adults.
What is on an enhanced certificate?
Convictions that have not yet been served will appear on the enhanced certificate.
The appearance of spent convictions and police intelligence, on the other hand, is dependent on the application of filtering standards and human decision-making. As a result, it may vary based on the information’s relevance to the position.
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 frequently asked questions, and it’s not always easy to respond, partly because we’re waiting for some important judgments and a government decision on some aspects of DBS.
The beginning point is that all conviction and intelligence information will most likely be retained by DBS. This is in response to a significant recommendation made in the aftermath of the Soham murders.
For most people, the problem is not so much with keeping information as it is with disclosing irrelevant information.
There is a complicated filtering mechanism that determines whether information is included or removed:
Legislation establishes the criteria for when a conviction or caution will be filtered. According to this, a certificate must include the following information:
- 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 variety of significant offences that are related to sexual or violent crime or are pertinent to safeguarding. Filtering offences on this list is never a good idea. In addition, the legislation covers crimes committed overseas.
Positions where filtering does not apply
Details of all convictions and cautions may be taken into account in a small number of defined roles. These jobs aren’t filled through the DBS system. Police screening and guns licence applications are two examples.
The employer has the right to enquire for and receive information about any spent convictions and cautions if the position/occupation is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 but not subject to a DBS disclosure.
However, the employer should follow existing recommendations and do a case-by-case study of any spent convictions and cautions, weighing how relevant they are to the position sought, if at all.
It is recommended that the employer keep track of the reasons for any employment decision (especially rejections), including whether any spent convictions or cautions were considered and, if so, why.
The employee will not be insulated from the repercussions if he or she fails to reveal any spent convictions or cautions when required by law (i.e. the Rehabilitation of Offenders Act will not apply).
Is there anything I can do?
Before submitting an application, you should be aware of the information that will most likely be disclosed. If you are told that disclosure is required, you will be able to act swiftly (but please note that the police are not obliged to notify you in advance).
It’s also worth noting that the filtering procedure doesn’t work well with police intelligence material, such as arrests that don’t result in prosecution. When making a disclosure decision, the police will use’statutory disclosure guidance’ and a ‘Quality Assurance Framework.’
You will be allowed to make representations to the ‘Independent Monitor,’ and in some cases, legal action to block future disclosure may be conceivable.
The DBS processes have been the subject of numerous court challenges, and the High Court recently ordered another significant reform (R (R) v The National Police Chief’s Council & Anor  EWHC 2586 (Admin)).
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact our team of criminal defence specialists on: 01376 511819