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Unlock responds to new statutory instrument which affects higher level DBS checks

Unlock's Policy Officer Brendan Shepherd explains what the change means

Unlock has noted a statutory instrument (SI) entitled The Police Act 1997 (Criminal Record Certificates: Relevant Matter) (Amendment) (England and Wales) Order 2023 has been laid in Parliament on 19 June 2023 that makes an amendment to the Police Act (1997).

This SI addresses anomalies regarding information disclosed on Disclosure and Barring Service (DBS) criminal record checks, which had previously resulted in certain cautions or convictions showing up on a Basic DBS check, but not on Standard or Enhanced checks (which are more stringent checks). This was a result of some cautions or convictions being “protected” – meaning they are filtered off Standard or Enhanced checks, even when they are unspent, while still showing up on Basic checks. For example, this could have been the case if there was a long-standing order attached to a conviction, thus making it unspent despite being eligible for filtering. The SI proposes that any unspent caution or conviction would also be disclosed on Standard or Enhanced checks. 

This anomaly is just one example of the way in which the criminal records process is legally complex, and therefore confusing for individuals and organisations to understand and navigate. In that context, we welcome any move to provide more clarity. However, Unlock is disappointed about this change for two reasons, one relating the level of complexity that remains in the system and the other to the fact that the solution taken is a restrictive one. 

Firstly, the SI provides some clarity in respect of what information is provided on a DBS check, but it does not address the issue of employers having to ask two separate questions if they want people to disclose the information that would then be disclosed on the checks. Specifically, they have to ask for people to disclose all unspent cautions or convictions as well as any cautions or convictions that have not been filtered. If employers are not clear in the way they ask those questions, there is greater potential for confusion regarding what should be disclosed, leading to either under- or over-disclosure.  

Secondly, the solution provided by the SI here is restrictive. The issue could have been resolved by stating that if a caution or conviction is filtered, then it automatically becomes spent. This would remove the confusing situation outlined above regarding disclosure. Two particular examples of when this issue is relevant illustrates why this approach would have been beneficial. The first example is where there is an order attached to a conviction which prevents it from becoming spent, even once it has been filtered. We would argue that if a conviction is able to be filtered, then any order which means it is unable to become spent is having a disproportionate impact. Often those orders no longer provide any benefit, but were put in place years before and have just not been rescinded by courts. The second example relates to youth conditional cautions, which will be immediately filtered while remaining unspent, as it cannot be spent until the conditions attached are complete.  

Changes to the filtering system relating to youth cautions were made following a 2019 Supreme Court case, which ruled that youth cautions should be filtered from DBS checks on the basis that they are intended for use in diversion and to aid individuals in their rehabilitation. The judgement stated that the purpose of such cautions in relation to children “is wholly instructive… its disclosure to a potential employer would be directly inconsistent with that purpose” (of promoting rehabilitation). This new SI proposes that even if youth conditional cautions are filtered, they are still disclosed for a period of three months (during which any conditions are completed). This would mean that more information will be disclosed for young people subject to a conditional caution or anyone with a criminal record where there is an ongoing order attached to a conviction. This appears to contradict the principles outlined in the Supreme Court judgement referenced above, and at Unlock we would argue that such disclosure hampers individuals’ potential to move on. 

Employers who are unsure about how to react to this change can contact Unlock on for advice. 

At Unlock, we’re always keen to hear about the impact of criminal records on you, so if this change has a particular impact please do get in touch. It is the experience of individuals that drives our work. You might also be interested in the work of the #FairChecks campaign which is calling for a major review of the criminal records system. 

Written by:

Brendan is Unlock’s Policy Officer


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