Legislation Update: Disclosure & Barring

From 17 June 2013, non-conviction information provided by police for a criminal record check will be based on the "workforce" the person is in, rather than the specific role or position.

The Disclosure and Barring Service (DBS) application form must now show whether the person is in the child workforce (working/volunteering with children); adult workforce (working/volunteering with adults); child and adult workforce; or other workforce.

From the above date DBS certificates will be sent only to the individual applicant, and no longer also to the employer or umbrella body which submitted the application. The purpose of this change is to allow the individual to review the certificate, and to dispute and make appropriate representations about the information in the certificate, without the information already having been seen by the organisation. The applicant may also potentially decide to withdraw from job applications or similar commitments if the certificate is adverse.

This means that organisations will have to rely on the applicant providing their copy of the DBS certificate, rather than receiving it direct. In the past, umbrella bodies have been responsible for examining certificates and contacting the organisation for whom they are obtaining certificates if they have any concerns. This will cease, and each organisation will need to have someone able to recognise fraudulent certificates and how to understand any conviction or other information.

A "portable" disclosure has been created which can be used for multiple jobs or roles, consisting of the original certificate, plus status checks whenever the person starts working or volunteering for a new organisation, changes role within an organisation, or needs to be re-checked under the organisation's provision for regular checks. There are specific registration requirements for this, and a status check can be carried out only if the individual being checked has subscribed to the service.

In a decision on 29 January 2013 relating to three cases, the court of appeal ruled that some aspects of criminal record checks, as then operating, were incompatible with the right to private life under article 8 of the European Convention on Human Rights. As a result of this decision, new rules came into effect on 29 May 2013, filtering certain old and minor convictions and cautions from DBS certificates.

Under the filtering rules that were put in place as a result of this decision, a conviction will not be included on a criminal record certificate if:

  • It is not a conviction for a specified offence as defined in s.4 of the order, such as sexual offending, violent offending and/or safeguarding); and
  • it is the person's only offence: and
  • it did not result in a custodial sentence: and
  • the person was aged 18 or over at the time of the offence and 11 years have elapsed since the date of the conviction; or the person was under 18 at the time of the offence and 5.5 years have elapsed since the date of the conviction.

If a person has more than one offence, details of all their convictions will always be included in the criminal record certificate.

A caution will not be included on the certificate if:

  • It is not on the list of specified offences; and
  • The person was aged 18 or over at the time of the caution and six years have elapsed since the caution; or the person was under 18 and two years have elapsed since the date of the caution.

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