The Disclosure and Barring Service

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What is the Disclosure and Barring Service?

The Disclosure and Barring Service (DBS) was established under the Protection of Freedoms Act 2012. It is a non-departmental public body sponsored by the Home Office and supplies details of a job applicant’s previous convictions to prospective Employers. Under the Rehabilitation of Offenders Act 1974 (ROA 1974) you do not have to disclose spent convictions and cautions for criminal offences to your Employer or prospective Employer. If your Employer dismisses you because of a spent conviction, it would be an automatically unfair dismissal. The Rehabilitation of Offenders Act 1974(Exceptions) Order 1975 (the Exceptions Order) contains exceptions to this protection, so that you have to disclose a criminal record in certain specified professions and employment such as lawyers, working with children or vulnerable adults, and some Financial Conduct Authority approvals.

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The Exceptions Order

For the specific types of employment listed in the Exceptions Order, the standard or enhanced certificates given by the DBS would list all previous convictions, for whatever offence, whenever it was committed. DBS is required to issue a criminal record certificate (CRC) or an enhanced criminal record certificate (ECRC) to any person who applies for such a certificate on an application countersigned by a “registered person”. An ECRC includes matters formally included in police records as well as information which the relevant police force reasonably believes to be relevant to the enquiry made and which ought to be included, known as soft intelligence.

This scheme was amended after the Supreme Court ruling in T v Chief Constable of Greater Manchester [2014] by the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013  which introduced a filtering process to reduce the effects of the law so that single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence or a suspended sentence are filtered out and not disclosed after 11 years, or 5 ½ years if the person was under the age of 18 at the time of the offence. Where a person has more than one conviction, they will always be disclosed on a CRC or ECRC.

This was the situation until the case of R (on the applications of P and A) v Secretary of State for Justice [2016] where the High Court decided that the criminal records disclosure scheme is not in accordance with Article 8 of the European Convention on Human Rights and Fundamental Freedoms (the right to respect for private and family life).

Article 8 says that:

“Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

The applicants in this case were trying to get work in teaching and finance, but did not fall within the newly introduced single conviction exception. Both of them had been convicted of two or more minor offences, many years ago. One was about minor theft offences and the other case was for minor offences that had arisen when the applicant was severely mentally ill.

These convictions had to be disclosed and in the case of the applicant who had been mentally ill, she would have to reveal her medical history to potential employers. The High Court concluded that the criminal records disclosure scheme does not contain any mechanism to make sure that it does not interference with Article 8 rights, and therefore is arbitrary and unlawful.

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Pre-employment Checks

Employers can request information about the criminal record of a job applicant by asking questions or getting confirmation through a certificate from DBS. The same rehabilitation protections (and exceptions) apply for questions asked by a prospective Employer and DBS checks. [see How to deal with a bad or inaccurate job reference, Letter before Claim – Bad Job Reference, Disclosure Calculator]

The level of DBS check will depend on the position you are applying for. Normally, as a job applicant, you have no legal obligation to reveal spent convictions. There are certain areas of employment that are exempt under the ROA 1974 (Exceptions) Order 1975. Here, Employers can ask about spent convictions. This is called “asking an exempted question”. You have a legal obligation to reveal spent convictions if applying for exempt employment. The minimum age at which someone can be asked to apply for a criminal record check is 16. If you have a conviction that has become spent, your Employer must treat you as if the conviction had never happened. Refusing to employ a person because of a spent conviction, is unlawful under ROA 1974.

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What Employers can Request

Employers can request;

• A criminal record certificate (CRC) if the position is included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.
• An enhanced criminal record certificate (ECRC) if the position is:
• included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975; and
• prescribed in the Police Act 1997 (Criminal Records) Regulations 2002barred list if the position is eligible for an ECRC and prescribed in the Police Act 1997 (Criminal Records) Regulations 2009 as one for which the children’s or adults barred list may be checked.

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DBS Online Update Service

You can subscribe to the online DBS Update Service .  It allows you to keep your certificate up to date and can be used between organisations. Your Employer or prospective Employer can check it with your consent.

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Filtering Protected Convictions and Cautions

Old and minor convictions, as well as cautions are protected. This means that they are filtered out of your DBS check, you don’t need to disclose them to a prospective Employer and a prospective Employer cannot take them into account when deciding whether to employ you.

Certain offences are called “Listed Offences” and they will never be filtered out.

A conviction will be filtered out where:

• the offence was not a listed offence;
• it did not result in a custodial sentence (or sentence of service detention);
• it is your only conviction; and
• if you were an adult when you were convicted, 11 years or more have passed since the date of the conviction (five years six months if you were under 18 at the time).