Changes to the DBS Filtering Regime
Many of my clients are very worried about the effect that a criminal conviction will have upon their employment and livelihood. After all, a sentence is often quickly served but the effect upon one's employment can last a lot longer. In this article I will examine recent changes to the Disclosure and Barring Service (DBS) disclosure of previous convictions and cautions in an attempt to assist an understanding of the current regime.
In 2013, the UK Government introduced the ‘filtering’ concept to the Disclosure and Barring Service previous conviction disclosure. This had the effect that certain convictions were no longer disclosable such as those received as a youth. There were certain time limits introduced whereby after 6 years cautions would be filtered and after 11 years convictions would be filtered.
There were a number of exceptions to this rule. There are certain offences which will never be filtered from a DBS check, these include serious offences of violence and sexual offences. There was also a rule where if a custodial sentence was passed, regardless of whether it was suspended, or where an individual had more than one conviction then no conviction on their DBS check would be filtered.
The filtering rules have been criticised since their introduction on the basis they produce an inconsistent result. Arising out of this was the 2019 Supreme Court decision in R (on behalf of P, G & W) v Secretary of State Home Department  UKSC 3. It was held that the serious offence and two conviction rule led to disproportionate interference with Article 8 ECHR rights.
In light of this decision, in July 2020 the UK Government conducted a review of the filtering rules and the effect that they have. These reforms were introduced on 28th November 2020 to strike a more appropriate balance between the interests of the individual and the protection of the wider public. There are two principal changes. Firstly, any caution/conditional caution/reprimand/warning received by an individual as a youth will now be filtered, regardless of the offence. Second, the ‘multiple conviction’ rule will no longer apply, as long as the offence is not an exempt offence (custodial sentence/serious offence).
It is important to be aware that where an offence is filtered from a DBS check, an employee is not required to disclose it. Whilst these offences remain on a police record, an organisation must be clear that when carrying out a DBS check for employment purposes any offence that has been filtered should be ignored. The new regulations were introduced by amending the Police Act 1997, in particular Section 113A.
Even where a caution is not filtered from a DBS check, an individual still has options to seek the deletion of any such entry. It is possible, in certain circumstances, to have a previous caution entry expunged from an individual’s record. It is also important to remember that even if an offence is filtered from a DBS check, it remains on a police record – likewise, these can be expunged.
In 2006, the Police introduced a policy called the ‘Exceptional Case Procedure’ which meant that no offences would now be deleted from the police record. This has now been replaced by the ‘Record Deletion Process’ as of May 2015, the ACRO guidelines set out the following examples of where a caution can be expunged:
- It can be proven that a recordable crime was not committed;
- Proven Alibi;
- The caution was incorrectly administered on one of the following grounds:
- The offender has not admitted the offence
- The offender was not willing to accept the caution
- There was not sufficient evidence to provide a realistic prospect of a conviction if the offender were to be prosecuted;
- The Police breached the Police and Criminal Evidence Act 1984 during the investigation.
- Another person is convicted of the offence;
- It is otherwise in the public interest for the caution / entry to be expunged.
It is rare that the ACRO will agree to delete a record. However, if they refuse then this decision can subsequently be challenged by way of judicial review if appropriate.
Quentin Hunt is an specialist Criminal Barrister with over 20 years experience in the Criminal Justice system. He accepts instructions from both solicitors and members of the public directly. If you have a DBS problem or face any issue relating to the Criminal Law you may contact Quentin for a free, no obligation conversation about your case.