Challenging the DBS ‘filtering’ rules

The problem

Since 2013 the filtering rules have helped many people with old and minor criminal records to be free of the stigma and discrimination that so many face when they have something on their criminal record. However, the current system doesn’t go far enough: it is blunt, restrictive and disproportionate. The intention of the filtering rules was to prevent unnecessary disclosure of criminal records on standard and enhanced criminal checks. However, in practice the system is ineffective because it is limited by inflexible rules and only came about due to legal challenges.

Minor offences are being routinely disclosed. Disclosure of minor offences including shoplifting, common assault and possession of various forms of cannabis are some of the most commonly disclosed convictions.

The list of offences that cannot be filtered is too broad. Robbery (an offence than cannot be filtered) could be used as the offence where a 12-year-old pushes over a classmate and takes their mobile phone. Offence categories fail to take into account specific circumstances. For example, the production and distribution of sexual images of a child could relate to a 16-year-old sending a classmate a naked picture of themselves. When it comes to cautions, people may accept a caution for a relatively serious offence when, if they were charged, that offence would likely be downgraded or they might be acquitted. Offences of ABH and prostitution should not be on the list.

There is no discretion – The filtering system is made up of ‘bright-line’ rules:

• Age, seriousness and relevance are not considered where someone has more than one conviction.
• Disclosure is automatic – there is no provision to make prior representations if something does not fit within the automatic rules.
• There is no assessment of the relevance of the conviction/caution to the employment sought, or the extent the individual may be perceived as continuing to pose a risk.

There is no opportunity for review – The Independent Monitor is available to review the decision by a Chief Police Officer to disclose “relevant information” such as arrests and allegations. This function does not currently extend to reviewing the automatic disclosure of old/minor convictions and cautions.

Why it matters

A criminal record can be crippling for employment – Employers are risk-averse, and often assume that if something is flagged on a disclosure, they cannot hire the applicant. Yet it’s a sad irony that a criminal record only becomes a problem when someone decides to get on in life; a criminal record check is not required to sell drugs or join a gang, but it is to get a job or go to university.

It dogs people for decades – The current system affects people with a criminal record for longer and more profoundly than elsewhere in Europe. The current criminal record disclosure system acts as a significant barrier to them doing so and can have profound effects well into adulthood, and often indefinitely.

Large numbers of people are affected – In 2019/20, 237, 790 checks revealed convictions or cautions after filtering rules had been applied. In our experience, disclosure of a criminal record is a fatal blow to an application and it is more common to reject the applicant than to conduct an assessment and proceed to hire them.

What we think should change

We urge the government to take immediate steps to reform the system and make sure that old, minor or irrelevant convictions and cautions are not disclosed on criminal record checks.

We recommend the Home Office and Ministry of Justice:

1. Reduce the list of offences not eligible for filtering
2. Remove the restriction on prison sentences so they are eligible for filtering
3. Introduce a discretionary filtering system: Read more about discretionary filtering.
4. Enable applicants to apply for their DBS certificate before applying for jobs
5. Create a distinct system of disclosure for criminal records acquired in childhood

Read more about the supreme court case

• In June 2018, a landmark case on disproportionate criminal records disclosure regime reached Supreme Court.
• For the first time in Unlock’s we intervened in a case. Read our submission to the court.
• Watch the Supreme Court hearing (19, 20 and 21 June 2018 – there are more details on the Supreme Court hearing)
• Read a blog with some reflections on the hearing
• Read a summary of the cases at the Supreme Court (P, G, W and Gallagher)
• Read about the Supreme Court judgment
• Read about the Government response to Supreme Court ruling and its plans to change criminal records disclosure regime
• The new filtering rules