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Thursday, March 29th, 2018

Legal update: criminal record checks

The following update has been received from Sandy Adirondack, voluntary sector legal expert – www.sandy-a.co.uk

Basic criminal record checks

The Police Act 1997 included provision for standard and enhanced criminal record checks for people undertaking specified types of work – for example accountancy, and work with children and vulnerable adults – and basic checks for any purpose. Nearly 21 years later, on 17 January 2018, basic checks finally became available in England and Wales from the Disclosure and Barring Service. (Prior to this, basic checks were available in Scotland and Northern Ireland, but were only available for individuals in England and Wales through Disclosure Scotland.) Basic checks show only unspent convictions, and are available to any individual for any purpose, whether work related or personal. Any organisation can ask a potential or current employee, volunteer, contractor or other worker for a basic check, regardless of the nature of their work. This will be of benefit for organisations which would like criminal record information for some or all workers, but are not eligible to carry out standard or enhanced checks for them.

Spent and unspent convictions

The Rehabilitation of Offenders Act 1974 (ROA) is a form of equal opportunities legislation, intended to reduce discrimination against ex-offenders who have not re-offended during their rehabilitation period. The rehabilitation period depends on the nature of the offence and the penalty, and the person’s age when the offence was committed.

  • For most jobs or types of work, the Act gives ex-offenders the right not to reveal convictions, even if asked, if these have become spent after a specified rehabilitation period. A conviction that has not become spent is unspent. Serious convictions never become spent, so are always unspent.
  • For most jobs, the Act makes it unlawful (although there is no penalty) for an employer to dismiss an employee or refuse to employ a person because he or she has a spent conviction. But it is not unlawful to dismiss or refuse to employ because of an unspent conviction.
  • The Act defines some jobs, occupations and types of work as exempt, where the person must declare both spent and unspent convictions, and where the employer can refuse to employ the person or can dismiss him or her because of the conviction. These exceptions are set out in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and subsequent orders, which specify the positions, professions, offices, employment, other activities and licences where an individual can be asked about spent as well as unspent convictions..
  • Where the Disclosure and Barring Service (DBS) has barred someone from working with children and/or adults, it is unlawful for an organisation to take on that person to work with that group, and it is also unlawful for the person to apply for or take on the work. This applies whether the work is paid or voluntary.

Types of criminal record checks (disclosures)

Basic checks are fundamentally different from standard and enhanced checks.

  • Standard checks can be carried out only by an organisation, not the individual, and only if the position or type of work is defined as exempt in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and subsequent orders. The disclosure certificate contains details of spent and unspent convictions, cautions, reprimands and final warnings from the police national computer (PNC). Some information about old and minor convictions and cautions may  be “filtered” and not be included. The organisation applying for the application may be the employer if it is a registered with the DBS, or by a registered umbrella body which carries out checks for other organisations.
  • Enhanced checks are also obtained by a registered body or registered umbrella body, for individuals carrying out certain activities or working in regulated activity with children or adults, applicants for gaming and lottery licences, and judicial appointments. To be eligible for an enhanced check, the position or type of work must be listed not only in a ROA  exception order, but also in regulations made under the Police Act 1997. The certificate contains the same information as a standard check, plus relevant information from police records held locally. Regulated activity in this context means activities currently defined as regulated activity under the Safeguarding Vulnerable Groups Act 2006 as amended by the Protection of Freedoms Act in 2012, as well as activities which had been regulated under the Act but ceased to be when it was amended. (Roles which ceased to be regulated but remain eligible for an enhanced check group include, for example, being a trustee of a children’s or vulnerable adults’ charity.)
  • Enhanced checks with children’s and/or adults’ barred list check (“enhanced + barred”) are only available for individuals engaged in regulated activity with children or adults, where the role is listed in Police Act regulations. The certificate contains the same information as an enhanced check, plus a check against the DBS’s lists of people barred from work with children and/or adults. Regulated activity in this context means only activities currently defined as regulated.
  • Basic checks, unlike standard and enhanced checks, include only unspent convictions and conditional cautions and can be used for any work or personal purpose. In England and Wales they are obtained by the individual from the DBS, through the Gov.uk website or through a responsible organisation which applies on behalf of the individual. An employer or other organisation, even if registered with the DBS, cannot apply directly for a basic check, but can apply on behalf of the individual through a responsible organisation. Responsible organisations are not the same as registered umbrella bodies through which organisations can apply for standard and enhanced checks. Basic checks have previously been available in Scotland and in Northern Ireland, but only became available in England and Wales from the DBS since 17 January 2017. Disclosure Scotland no longer carries out checks for individuals in England and Wales, as it did prior to 17 January.

The fee for a DBS basic check is £25, and the DBS says most basic checks will be processed within 14 days.

Ex-offenders as staff and volunteers

Now that any individual working or potentially working in any paid or voluntary role can be asked to provide a basic DBS check, organisations may be tempted to require this from everyone. For some organisations or some types of work,  automatically obtaining a check on everyone working or potentially working for the organisation may be justifiable. But more than 20% of the working age population has a criminal record, and carrying out checks unnecessarily can be a deterrent to people volunteering or applying for jobs; can lead to an organisation discriminating unjustifiably because of a conviction or other information obtained through a check; and can contribute unnecessarily to reoffending rates if an ex-offender cannot find work and, as a result, commits crime. On the other hand, not obtaining checks where the organisation is entitled to do so could be seen as negligence, if the individual subsequently harms people or the organisation.

Good practice is for the organisation to decide, based on a relevant risk assessment, whether there is adequate reason to obtain a check for specific roles where the organisation is not required to do so. Even where checks are obtained, it is essential always to remember that many offenders of all types never come to the attention of the police, and DBS checks generally only reveal information about those who do. Other elements of good management — a good recruitment process, taking up references, proper induction, ongoing training, supervision, risk assessment — are ultimately more important than DBS checks. NACRO, a charity working with ex-offenders, has an essential guide for employers on good practice for DBS checks at all levels [see Resources below].

What organisations can’t do

In the past, organisations which were not eligible to carry out a standard or enhanced check for a specific role often asked the individual to get a copy of their full criminal record through a data protection subject access request to the police. This included not only unspent convictions, but also spent convictions which the employer had no legal right to know about, and the individual had no legal obligation to tell the employer about. Requiring a potential or existing employee, volunteer, contractor etc to obtain their criminal record through a subject access request has been unlawful since 10 March 2015, under s.56 of the Data Protection Act 1998.

Resources

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