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Tag: Filtering

Do you know whether your cautions and/or convictions will be removed from your standard or enhanced DBS? Changes from 28 November

Today (28 November 2020) the long awaited changes to the rules on what is disclosed on (and removed from) standard and enhanced criminal record checks come into effect. This is something Unlock has campaigned for over seven years.

Today we’ve published updated guidance which explains the new rules. You can:

If you’re applying for a job that involves a standard or enhanced Disclosure and Barring Service check, cautions or convictions that would be removed (filtered) won’t be included on your standard or enhanced certificate.

It’s thought that these changes will mean around 45,000 people a year will now have a clear standard or enhanced DBS check, although we know many more people have been put off applying in the past, so we think the number that benefit from these changes will be much higher, so it’s worth finding out whether you’ll be one of them.

More information

Government announces date when planned changes to criminal record disclosure rules will take effect

The government has today confirmed that planned changes to the rules on filtering will come into effect on Saturday 28 November. After years of campaigning for change, and after many months of holding the government to account on the implementation of the changes, the news was confirmed in a letter to Unlock from the Home Office yesterday.

The changes are simple; for jobs and voluntary roles that involve a standard or enhanced criminal record check issued by the Disclosure and Barring Service, childhood cautions will no longer be disclosed, and a rule that meant someone with more than one conviction had all their convictions disclosed, regardless of offence or length of time, has been abolished. For people who have been held back from employment and volunteering to help others because of mistakes they made years ago, the impact will be life changing.  

According to Home Office data, these changes will mean around 45,000 people a year will now have a clear standard or enhanced DBS check. One in five people who under the old rules would have had their criminal records disclosed, will now have a clear certificate. Clearly this shows that we still have a long way to go; we hope to see further reforms that allow more people to leave their past behind. 

These changes come as a result of a Supreme Court ruling in January 2019. Unlock intervened in that vital case because we know thousands of people are unnecessarily anchored to their past due to an arbitrary regime which forces the disclosure of old and irrelevant information. Until now, about 25,000 childhood cautions were disclosed in criminal record checks every year, most of which were for incidents that happened over five years ago. These changes will end the disclosure of childhood cautions.  

Christopher Stacey, Co-director of Unlock, said: 

It shouldn’t have needed individuals to bring legal challenges against the government, who fought the case all the way to the highest court in the land, but I am proud that Unlock played a crucial role over the last seven years, working with other charities, to make sure this moment came. The changes coming in on 28 November are a crucial first step towards achieving a fair system that takes a more balanced approach towards disclosing criminal records.  

However, we are still left with a criminal records system where many people with old and minor criminal records are shut out of jobs that they are qualified to do. We found that over a five year period, 380,000 checks contained childhood convictions, with 2,795 checks including convictions from children aged just ten. Many of these childhood convictions will continue to be disclosed despite these changes. Reviews by the Law Commission, Justice Select Committee, former Chair of the Youth Justice Board Charlie Taylor and David Lammy MP have all stressed the need to look at the wider disclosure system. The government’s plan for jobs should include a wider review of the criminal records disclosure system to ensure all law-abiding people with criminal records are able to move on into employment and contribute to our economic recovery.”  

Sam Grant, Policy and Campaigns Manager at Liberty, said:

“We all want a criminal justice system that treats us with humanity, and allows people to move on from mistakes. For too long a blunt and bureaucratic system has meant that if you made mistakes in your past, you were prevented from moving on.

“The Government had to be taken to the highest court, then took nearly two years to accept it had lost, but this injustice will finally be fixed. This case shows that through bravery and persistence a few individuals can use our legal system to stand up to power and obtain justice that will help countless people in similar situations.”

Jennifer Twite, Head of Strategic Litigation at Just for Kids Law, said:

“Every year, about 25,000 youth cautions are disclosed in criminal record checks, most of which are for incidents that happened over five years ago. This new legislation will help to ensure that no child who is given a caution ends up with a lifelong criminal record that robs them of the chance to get their lives back on track.”

It is important that both individuals with a criminal record and employers understand the impact of these changes. That’s why we’ll be publishing updated guidance for both individuals and employers. 

Government announces date when planned changes to criminal record disclosure rules will take effect

The government has today confirmed that planned changes to the rules on filtering will come into effect on Saturday 28 November. After years of campaigning for change, and after many months of holding the government to account on the implementation of the changes, the news was confirmed in a letter to Unlock from the Home Office yesterday.

The changes are simple; for jobs and voluntary roles that involve a standard or enhanced criminal record check issued by the Disclosure and Barring Service, childhood cautions will no longer be disclosed, and a rule that meant someone with more than one conviction had all their convictions disclosed, regardless of offence or length of time, has been abolished. For people who have been held back from employment and volunteering to help others because of mistakes they made years ago, the impact will be life changing.

These changes came as a result of a Supreme Court ruling in January 2019 which Unlock intervened in and, according to Home Office data, these changes will mean around 45,000 people a year will now have a clear standard or enhanced DBS check. One in five people who under the old rules would have their criminal records disclosed, will now have a clear certificate.

Some practical points

It’s important to remember that certificates applied for prior to 28 November 2020 will be produced in accordance with the current disclosure rules. Therefore, if you need to apply for a standard or enhanced DBS and you know that you will benefit from the changes being made, we would recommend delaying your application to the DBS until after 28 November.

If you subscribe to the DBS Update Service any cautions or convictions removed from your standard or enhanced certificate after 28 November would not result in a status change. Status changes are only prompted when new information is added, or an offence is changed or amended, whereas an offence which is filtered would result in information being removed. If you wish to have a new DBS certificate which does not disclose your newly removed cautions/convictions, you will need to apply for a new DBS check.

It is important that individuals with a criminal record understand the impact of these changes and we will be publishing updated guidance prior to the changes coming into effect.

Changes to filtering rules – Will you still need to disclose your criminal record?

On the 30 January 2019, the Supreme Court directed the government to fix the broken Disclosure and Barring Service system.

The Supreme Court ruled that two aspects of the filtering regime – as it applied to multiple convictions and childhood cautions – was disproportionate and in breach of Article 8 of the European Convention on Human Rights.

Unlock intervened in that case and we were pleased to hear last week the government announce that it intended to fully comply with the Supreme Court ruling on filtering.

The planned changes will remove the automatic disclosure of:

  • youth cautions, reprimands and warnings (an out of court disposal issued to young offenders that were replaced by youth cautions in 2013); and
  • all spent convictions where the individual has more than one conviction (except where disclosed under the other rules).

We believe that the changes are the first step towards achieving a fairer system that takes a more balanced approach towards disclosing criminal records.

You can read our response to the governments plans, and find out more about the impact these changes will have on you; there’s also a brief guide available to download.

We will be updating this page regularly so keep a look out for new information. Alternatively sign up to our mailing list to receive regular updates.

More information

Supreme Court judgment – What does it mean?

Following the judgment by the Supreme Court on the current criminal records disclosure regime, we thought it would be useful to highlight the main points of the decision and to set out what is likely to happen next.

What does the judgment say?

The Supreme Court ruled that two aspects of the filtering regime – as it applies to multiple convictions and childhood cautions – are disproportionate and in breach of Article 8 of the European Convention on Human Rights

The judgment was a majority decision, with Lords Sumption, Carnwath and Hughes and Lady Hale in agreement. Lord Kerr gave a dissenting opinion.

The court ruled that:

  1. A category based system, where some offences are filtered and others not, is in accordance with the law, although the court recognised that this creates difficulties for some.
  2. Despite this, there are two elements that are disproportionate:
  • The ‘multiple conviction’ rule
  • The approach to reprimands/warnings/youth cautions of children.

The full judgment is available here, but a helpful summary can be found here.

How does the filtering system work at the moment?

The current filtering rules have four elements to them:

  1. The number – Only single convictions can be filtered (multiple cautions can be filtered).
  2. The seriousness – The single conviction cannot have resulted in a prison (or suspended) sentence.
  3. The type of offence – There is a long list of offences – including drug supply, violent or sexual offences – which cannot be filtered.
  4. The length of time – If cautions or convictions have got through the 3 aspects above, there is a set period of time, depending on whether it was a caution or conviction, after which it is filtered (i.e.removed) from a standard or enhanced check.

Our flowchart sets out the way the filtering process currently works.

Multiple convictions

The multiple conviction rule means that anyone with more than one conviction would have to disclose all convictions indefinitely, no matter what the offence. The court found that this rule is not necessary or proportionate since it applies ‘irrespective of the nature of the offences, of their similarity, of the number of occasions involved or of the intervals of time separating them’.

Warnings and reprimands

Warnings and reprimands (given to children) were never intended as punishment – their aim was always one of rehabilitation. The Supreme Court found that ongoing disclosure of warnings and reprimands is an ‘error of principle’. This reasoning should also apply to youth cautions (which replaced warnings and reprimands).

Case of W and the list of offences

The case of W involved a person now in their 50’s with an Actual Bodily Harm (ABH) conviction when they were 16 years old. The court broadly agreed that ABH should continue to be disclosed as ‘it may be’ a serious offence. This will be disappointing to those with a conviction for low level ABH and other offences that cannot be filtered. It’s worth noting that there has been criticism from other places on the current operation of this list of offences – such as by the Law Commission and the Justice Committee – and we will continue to highlight cases where the category approach creates injustice.

Seriousness

None of the cases before the court involved prison (or suspended) sentences so the judgment does not comment on that aspect of the filtering system.

What happens next? Does this mean my caution/conviction no longer needs to be disclosed?

The court ruled that the criminal records disclosure scheme as it applies to multiple convictions and childhood warnings/reprimands was disproportionate. The government will now need to consider the judgment and work out how to respond. You can see in our press release what we’re calling for the government to do next. There is no immediate change but, as these rules have been found disproportionate and a breach of human rights, we want to see the government act swiftly to change them.

Thousands of children are given cautions every year. Thousands of adults have convictions for less serious offences, often committed many years ago. When the government acts to comply with this ruling, those people will be able to move on, find employment or training without having to reveal a past that is no longer relevant. We’ll continue to publish updates as part of our policy work on the filtering regime.

What can you do to help?

You can contact your MP to ask them to take an active interest in the government’s response to this judgment.

You can continue to tell us how disclosing warnings/reprimands or multiple convictions has affected your employment prospects and your ability to move on positively with your life.

We’ll continue to update the filtering policy page on our main website.

 

Disclosure of police intelligence on enhanced DBS checks

Although Unlock as a charity primarily focuses on people with convictions and cautions, a recent case about a rape acquittal is an important one for a lot of people that use our website that have other things on their police record. 

At the end of July 2018 a case was heard in the Supreme Court [R (AR) -v- Chief Constable of Greater Manchester Police and another] relating to the lawfulness of the disclosure of a rape acquittal on an Enhanced Criminal Record Check (ECRC).

The details of the case are that in 2011 AR was acquitted of rape. At the time he was working as a taxi driver and it was alleged that he raped a 17 year old passenger in his taxi. His defence was that there had never been any sexual contact with the alleged victim.

Following acquittal, he applied for an enhanced DBS check in relation to a job he’d applied for and, under the ‘other relevant information’, the following statement was included:

On … police were informed of an allegation of rape. A 17 year old female alleged that she had been intoxicated and travelling in a taxi. The driver had conveyed her to a secluded location where he forcibly had sex with her without her consent.

AR was identified as the driver and was arrested. Upon interview he stated that the female had been a passenger in his taxi, but denied having sex with her, claiming that she had made sexual advances towards him which he had rejected. Following consideration by the CPS, he was charged with rape and appeared in court where he was found not guilty and the case was discharged.

In the Court of Appeal, AR argued that the criminal record check infringed his rights under Article 6(2) of the Human Rights Act because it effectively treated him as if he were guilty of the offence of which he had been acquitted; also the disclosure was disproportionate. The Court of Appeal rejected these arguments and dismissed the appeal.

The Supreme Court was asked to consider whether:

  1. The disclosure was a breach of the presumption of innocence
  2. The disclosure was procedurally unfair because it was inconsistent with AR’s acquittal and/or occurred without consultation
  3. The retention and disclosure of the data was a breach of article 8 of the Human Rights Act.

The appeal against the disclosure was dismissed as it was deemed reasonable, proportionate and no more than necessary to secure the objective of protecting young and vulnerable persons.

The court did not believe that it was appropriate for those responsible for an enhanced DBS check to conduct a detailed analysis of the evidence of the trial. Therefore it was not the case that disclosure could only be justified if the officers were in a position to form a positive view of likely guilt. The court held that the information was a matter of public record and might have come to the employer’s knowledge from other sources.

The court did state however that the case gave rise to more general concerns about the procedure as there is no clear guidance as to what weight should be given to an acquittal in different circumstances as well as a lack of information about how an employer would treat the disclosure.

Although the outcome of the case is disappointing, it’s important to note that relevant information is only disclosed in a small number of cases. The data provided by Greater Manchester Police (GMP) showed the following between April 2017 and March 2018:

Ms Richards acting for GMP was at pains to emphasise that an enhanced DBS check is only part of the information available to employers and would not necessarily lead to failure. The Supreme Court had been shown reports which emphasised the importance of not excluding those with convictions for employment but they said nothing about those who had been acquitted. The court stated that there was little guidance given to employers as to how to handle these issues but they believed that even when relevant information was expressed in entirely neutral terms, there must be a danger that the employer would infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt.

Although this case is separate to the Supreme Court filtering case that Unlock is involved in (which is still pending judgment), it will be interesting to see whether (if and if so how) the outcome of this case will feature in the judgment that the court gives on the filtering case.

For more information

  1. For practical self-help information – More information is available on disclosure of police intelligence and enhanced checks
  2. Our policy work – Read about the policy work we’re doing on challenging the DBS filtering process
  3. Questions – If you have any questions about this, you can contact our helpline.

Problems with the filtering of conditional cautions

Conditional cautions like simple cautions may be filtered from standard and enhanced DBS certificates after 6 years, providing you’ve not been cautioned for a non-filterable offence.

However, our helpline has been contacted recently by several people who’ve had conditional cautions which are eligible for filtering disclosed on their enhanced DBS certificate as a  conviction. Further investigations by Unlock have revealed that this is due to the way in which conditional cautions are recorded on the Police National Computer (PNC); as a conviction rather than a caution. Therefore, instead of being eligible for filtering after 6 years, the DBS filtering system doesn’t consider them to be eligible for 11 years.

This anomaly has resulted in several individuals having difficulties in either getting or keeping a job.

Example one

Mr D received a conditional caution in 2009 which was eligible for filtering in 2015. Although he’d always worked successfully as a teacher despite having to disclose his conditional caution, he was delighted to be able to apply for a teaching role without having to disclose it. However, on receipt of his enhanced certificate, his conditional caution had been disclosed as a conviction and his employers threatened to dismiss him as they considered his failure to disclose as a breach of trust.

Example two

Mr E’s conditional caution was eligible for filtering in April 2016 but had been disclosed on a recent enhanced DBS certificate under the convictions section. Although Mr E had raised the issue with the DBS Dispute Service, he believed that his job offer was likely to be withdrawn due to the length of time the check had taken.

Example three

Knowing that her conditional caution was eligible for filtering in May 2016, Ms D did not disclose it to her new employer after being offered a teaching assistant job at her local school. She was horrified to see the conditional caution on her enhanced certificate and immediately raised a query with the DBS. However, as she was unable to start work without the certificate, she was extremely worried that the school would withdraw the job offer.

Example four

Ms R’s conditional caution appeared on her enhanced DBS certificate despite being eligible for filtering in August 2015. As the conditional caution appeared in the conviction section on the certificate, her new employers had raised questions about the non-disclosure of the ‘conviction’ and were minded to revoke the job offer unless she was able to provide them with a ‘blank’ certificate.

Raising a query with the DBS

In all the above cases, the individuals raised a data query with the DBS and were able to get a new DBS certificate with the conditional caution removed. However, all of them suffered unnecessary stress and anxiety as a result of their conditional cautions being disclosed and, in some cases, their employers becoming aware of something that they shouldn’t have had any knowledge of.

We’ve raised this issue with the DBS but we’re keen to hear from anybody that has had a similar problem with a filtered conditional caution appearing on their standard or enhanced DBS certificate. Please send your examples to feedback@unlock.org.uk.

If you’re applying for a job but believe you’ve got a conditional caution which is eligible for filtering, make sure you request the certificate is sent to you. If the caution does appear, you’ll be able to raise a query with the DBS before your employer’s have sight of it.

For more information

  1. For practical self-help information – More information is available on filtering and criminal record checks for employment
  2. Questions – If you have any questions about this, you can contact our helpline.

Government loses criminal records disclosure appeal

The Court of Appeal has rejected the Government’s appeal to a decision of the High Court, which ruled that the criminal records disclosure scheme was disproportionate and unlawful.

Reporting on the news, The Law Society Gazette said that the government will have to go back to the drawing board. In the article, Christopher Stacey of Unlock explained that the charity is contacted by thousands of people every year because they are being unnecessarily anchored to their past as a result of a criminal record disclosure system and DBS filtering process which is blunt, restrictive and disproportionate. You can read the full article here.

Personnel Today also reported that the government will have to rethink the criminal record disclosure rules following the defeat. Featuring in their article, Christopher Stacey urged the next Government to take immediate steps to respond to the ruling by reforming the criminal records system. You can read the full article here.Christopher also featured on Sky News  where he welcomed the Court of Appeal’s decision.

 

Landmark Court of Appeal ruling – Government loses appeal against DBS filtering regime – Judgement will help thousands of people put their past behind them

For those of you that have been following the work we’ve been doing on challenging the DBS ‘filtering’ process, we’ve heard today that the Court of Appeal has rejected the Government’s appeal to a decision of the High Court in January last year. This ruled that the criminal records disclosure scheme was disproportionate and unlawful.

The judgement handed down today involved a number of cases that were heard in the Court of Appeal in February this year, including one from Liberty and one from Hodge, Jones & Allen, supported by Just for Kids Law.

The court heard the case of a man convicted in the 1980’s of ABH when he was 16 and received a conditional discharge. The President of the Queen’s Bench Division, Sir Brian Leveson, said in his judgement:

It is difficult to see how publication of this detail, 31 years on, is relevant to the risk of the public, or proportionate and necessary in a democratic society.

We’re delighted with the Court of Appeal’s judgement which will benefit thousands of people who have old or minor criminal records. The current system which was introduced in 2013, operates with inflexible rules meaning that, for example, someone with more than one conviction on their record will have them disclosed forever, regardless of the nature or circumstances. These shortcomings have now been recognised by the Court of Appeal.

We hope the next government will take immediate steps to respond to today’s ruling by reforming the current system and introducing a fairer and more flexible system.

More information

  1. Read Unlock’s full press release
  2. Find out more about our work on this issue on our policy page for challenging the DBS ‘filtering’ process
  3. For practical information on filtering, read our detailed guide
  4. Discuss this issue on our online forum.

Filtering process brought in for Scotland

Last week, the Scottish Government announced details of a process that will apply to Standard and Enhanced checks that are issued by Disclosure Scotland. The process started on the 10th September 2015.

This process will remove certain convictions and cautions from these types of disclosures.It’s similar to the filtering process that the Disclosure & Barring Service operates, but instead it will apply to checks issued by Disclosure Scotland.

An example that Disclosure Scotland provides on it’s website is below:

If a person is convicted of theft and is sentenced to 6 months in custody  – once the conviction is spent under the terms of the Rehabilitation of Offenders Act 1974, this will be disclosed for a further 15 years after which it will become a protected conviction and is then no longer disclosed.

Disclosure Scotland have issued guidance on their website about how the process works. For advice, contact Disclosure Scotland.

How is this relevant to us?

We regularly get contacted by people who live in Scotland. Our information & advice on this site covers England & Wales only, so this post is for information only, as well as providing a link to the guidance on the Disclosure Scotland website.

The process that the Scottish Government has introduced differs to the DBS process.

  • In some ways, it’s better – for example, it appears to cover more than one conviction.
  • In other ways, it seems worse – for example, it takes much longer for a conviction as a adult to become filtered – 15 years.

As part our policy work, we’ll be looking at how the Scottish process works as part of our work in pushing for the DBS filtering system in England & Wales to go further.

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