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Law Commission Report Calls for Reform of Disclosure & Barring System

A Law Commission report has found major flaws in the system for the disclosure of criminal records in England and Wales. The Home Office requested the Law Commission examine the effectiveness of what is known as "filtering". Filtering is a system by which an individual is not required to disclose their full criminal offending history if the convictions are for old and minor offences. The report came back with the conclusion that the law surrounding disclosure was confusing, and recommended a full review of the current regime.

The Disclosure and Barring Service (DBS) is a government organisation set up to replace the Criminal Records Bureau and the Independent Safeguarding Authority. DBS provide Certificates to employers wishing to carry out background checks of employees. There are different types of checks available; the standard DBS check will show spent, and unspent convictions, cautions, reprimands and final warnings – and the enhanced check will show any other relevant information held by the Police, and also makes a ‘Barred List’ check on the employee. The Barred List is a record of persons deemed unsuitable to work with children and/or vulnerable adults. The DBS will notify Those who have committed certain offences that they have been put on the ‘Barred list’. Previous cautions and convictions may be a barrier to certain opportunities, such as obtaining employment and education opportunities and travelling. Some offences lead to an automatic bar and others require you to make representations as to why you should not be included on the Barred List, and ultimately, the decision to bar you will depend on your perceived risk.

The report, which was published on February 1st, came up with the following conclusions:

  • Introducing a new statutory instrument to create an ‘improved’ list of non-filterable offences is unlikely to produce the best solution to the broader problems with the system.
  • There is a compelling case for a wider review of disclosure system as a whole.
  • A statutory instrument should set out the full list of non-filterable offences, without reference to lists in other legislation.
  • The non-filterable offences list should be updated by amending the legislation in which it is contained to make it easier for non-lawyers to access the law.

The concern is that some individuals either have outdated, incorrect or irrelevant information on their record, and that there are some individuals who ought to have conviction records remaining on their disclosure certificates and have had them removed. Sometimes the police may have attributed the wrong offence or included factually incorrect statements on your certificate. Non-conviction information, such as unproven allegations, may also appear on a DBS certificate which are factually incorrect or unfair. In these circumstances and others, it is possible to undertake a DBS appeal.

Regulated Activity Test for Disclosure

A new test for ‘regulated activity’ now means the DBS can only bar a person from working with children or adults and where the person is believed to engaged in regulated activity, or where there is a possibility they could be engaged in regulated activity in the future. If the offence merits an automatic bar, however, this test does not apply.

Disclosure & Your Employer

Applicants with convictions should be aware that employers may request standard or enhanced checks where they do not have good reason, and therefore may gain information where they are not entitled.

If an enhanced certificate has been requested, a section entitled ‘other relevant information’ will be shown. This can and does include non-conviction information’ and police intelligence' such as Fixed Penalty Notices, Findings of Innocence, Acquittals, Cautions and Convictions of people you live with. Such information can have consequences for a person's employment opportunities. You have the right to appeal the Police authorities’. When an appeal is submitted, the Police will reconsider their decision to include the information following any representations made on your behalf. You can only challenge other relevant information’ if the information contained is not relevant; and/or it ought not to be included. The Chief of Police local to you decides what information should be contained in the ‘other relevant information’ section.

Mark Kelly Criminal Law Barrister UK

My professional experience, approachability and considerable expertise ensures you will be in good hands when it comes to your defence, and my track record is second to none. I consistently obtain favourable results for clients accused of a variety of criminal offences, and so I am well placed to support, advise and represent you in respect of your case. If you wish to discuss allegations made against you, or if you feel a DBS decision on barring or reporting is unfair, please do not hesitate to get in touch with one of my clerks. Alternatively, speak to one of our team on 0845 210 5555.

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