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Created as a replacement for both the Criminal Records Bureau and the Independent Safeguarding Authority, the Disclosure and Barring Service (DBS) processes applications for background checks on individuals who are either working, or seeking work in, certain jobs.
The DBS has two main roles. First, it issues criminal record certificates; and second it determines whether individuals should be added to one of two lists barring people from working in regulated activity with children or adults.
For most people, the process of obtaining a clean DBS certificate which clears them for work is a straightforward experience. However, for some, the disclosure of certain types of non-conviction information (known as ‘soft intelligence’) can be devastating. Private, irrelevant and sometimes untrue information can, if unjustly disclosed, not only impact a person’s personal reputation, it can also destroy careers.
Hickman & Rose lead the way in Disclosure and Barring law. Our specialist Disclosure and Barring team has achieved significant success acting for individuals who have challenged proposed enhanced DBS certificate disclosures and also “minded to bar” decisions.
There are two types of DBS certificate: a standard DBS certificate and an enhanced DBS certificate.
A standard DBS certificate is required for a wide variety of jobs. It contains details of all unspent criminal convictions and cautions which are held on the Police National Computer (and which are not subject to the ‘filtering’ process by which certain old and minor offences are not revealed).
An enhanced DBS certificate is ordinarily required where an individual is either employed or seeking work in the child and/or the vulnerable adult workforce. An enhanced certificate contains the same details from the Police National Computer as a standard check, but can also contain details of any unspent criminal convictions, cautions and non-conviction information which are held locally by individual police forces
A wide variety of non-conviction information can be disclosed on an enhanced DBS check. This can include information such as an acquittal, an arrest which resulted in no further action or even an allegation which did not lead to an arrest.
Strict rules govern when this information can be revealed. Non-conviction information on an enhanced DBS certificate can only be disclosed in the following circumstances:
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 enhanced DBS disclosure is lawful or not.
The police decide what information should be disclosed in any DBS check with the final decision on what, if any, information should be disclosed resting with the force’s chief officer.
In order to be lawfully disclosed, information must be relevant to the job in question. The police should determine ‘relevance’ in any DBS case by following the Home Office’s Statutory Disclosure Guidance and quality assurance framework (QAF).
A problem experienced by some applicants for an enhanced DBS certificate is that chief police officers may construe the concept of ‘relevance’ too widely and rule in favour of disclosing non-conviction information with very little, or even no bearing on the job in question.
Anyone who fears they have been – or will be – subject to a potentially unlawful disclosure may be able to challenge this.
It is possible to challenge the disclosure of non-conviction information on an enhanced DBS check.
In some cases anyone whose non-conviction information may be subject to disclosure on an enhanced DBS certificate will be made aware of this possibility (and given the opportunity to make representations) before a final decision on disclosure is taken. Even if disclosure occurs without warning, it may be possible to seek to challenge the content of an enhanced DBS certificate before it is disclosed to an employer.
Precisely which legal arguments and tactics should be best deployed in challenging the disclosure of non-conviction information will always be case-specific.
However, it is sometimes the case that the police, in deciding to disclose non-conviction information, rely on incomplete or 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. Determining “relevance” can also be key here.
If the decision-making process has been influenced by any one of these factors then this could result in a 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 two so-called ‘barred lists’. These lists prevent people from working in regulated activity with children and/or 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. Careful legal representations can often make the difference where it can be argued that such inclusion would be unlawful.
Hickman & Rose leads the way in Disclosure and Barring law. Our expert solicitors have acted for individuals who sought 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 impact 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.
Early legal advice often helps. 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 unlawful.
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