The Disclosure and Barring Service (DBS) issues criminal record certificates and helps to safeguard vulnerable people by determining whether individuals should be added to one of two lists barring people from working with children or adults.
Created in 2012 as a replacement for both the Criminal Records Bureau and the Independent Safeguarding Authority, the advent of the DBS has seen many more people than previously undergo background checks.
For most people, the process of getting a certificate has been an unremarkable, straightforward experience. For some, however, the disclosure of non-conviction information known as ‘soft intelligence’ has had a devastating impact on their ability to work, their reputation and their right to privacy.
In these instances, early legal advice can help. Unlawful disclosure does happen and specialist advice is often needed to navigate this complex area of law and, where appropriate, prepare representations aimed at preventing disclosure which may be contrary to the rules.
There are two types of DBS certificate. A standard DBS certificate is required for a wide variety of roles. It will contain details of unspent criminal convictions and cautions held on the Police National Computer which are not subject to filtering.
An enhanced DBS certificate is ordinarily required where an individual is employed (or seeks work) in a particular sector (typically in the child or vulnerable adult workforce). An enhanced certificate will contain the same details as the standard check, but can also contain details of unspent criminal convictions, cautions and non-conviction information held locally by police forces.
Non-conviction information on an enhanced DBS certificate can only be disclosed in the following circumstances:
This information could include an acquittal, an arrest which resulted in no further action or even an allegation which did not lead to an arrest. Questions as to what non-conviction information is relevant, and if so whether it ought to be disclosed, are therefore at the heart of determining whether disclosure is lawful or not.
The DBS disclosure system relies on the police to accurately determine the relevance of non-conviction information.
In order to do this, police forces must follow the Home Office’s Statutory Disclosure Guidance and should also adhere to a quality assurance framework (QAF), which has been approved by both DBS and the National Police Chiefs Council.
The QAF is a decision-making tool. It sets out the requirements the police should use when assessing the relevance of non-conviction information. These include the need to consider both the gravity and reliability of the information in question as well as the time that has elapsed since the event(s) in question.
While many chief police officers have construed the concept of relevance widely and have thus ruled in favour of disclosure, this has not always been done lawfully. Anyone who fears they have been – or will be – subject to a potentially unlawful disclosure may be able to challenge this.
The disclosure of non-conviction information on an enhanced DBS check is commonly open to challenge.
Routinely (and where the question of disclosure is finely balanced) anyone whose non-conviction information may be subject to disclosure is made aware of this and given the opportunity to make representations before a final decision is taken. If this does not happen, it can be possible to seek to challenge the content of an enhanced DBS certificate.
The legal arguments and tactics deployed in any such representation will always be case specific. However, it can often be the case that the police, in deciding to disclose non-conviction information, have relied on incomplete and out-of-date material. They may also not have fully appreciated the nuances of the employment role sought, nor the degree of supervision in the workplace.
If one (or more) of these factors has influenced the decision making process, it may enable the successful challenge of the decision to disclose, in cases where such disclosure could result in either the end of a career or an inability to enter a chosen profession.
As well as issuing certificates to employers, DBS maintains the ‘barred lists’. One lists people barred from working with children; the other lists people barred from working with vulnerable adults.
Individuals may be placed on either or both lists in one of the following circumstances:
Anyone who is not the subject of an automatic barring decision will ordinarily be given the opportunity to make representations against inclusion. This will often come in the form of a “minded to bar” letter, inviting representations from the affected person.
Challenges to proposed inclusion on either barred list is fact-specific and careful representations can often make the difference where it can be argued that such inclusion would be unlawful.
Hickman & Rose have led the way in this area of law. We have acted for a number of individuals seeking to challenge either an enhanced DBS certificate or a minded to bar decision. Where necessary, this has included applications to court.
Our lawyers recognise the extreme significance that unjust DBS disclosure and barring decisions can have on individuals’ lives and livelihoods. By carefully considering the applicable legal framework in relation to such issues, we can assist in seeking to prevent the damage this would cause.