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For people with criminal records
For people with criminal records

Unlock Category: 2. Disclosure and Barring Service

Criminal records that don’t show (stay) on standard and enhanced DBS checks (filtering and protected cautions and convictions)

Aim of this information

In July 2020 the government announced plans to change the rules on what is disclosed on (and removed from) standard and enhanced criminal record checks issued by the Disclosure and Barring Service (DBS). This was in response to a Supreme Court ruling in 2019. This information sets out the filtering process incorporating the changes made by the government that came into effect on 28 November 2020.

Note – This information focuses on how the filtering process works in England and Wales

Disclosure Scotland has guidance on the filtering process that applies to standard and enhanced checks in Scotland on their website.

The Department of Justice in Northern Ireland has guidance on the filtering process that applies to standard and enhanced checks in Northern Ireland on their website.

Why is this important?

If you are applying for a job or role which is ‘exempt’ from the Rehabilitation of Offenders Act and which requires a standard or enhanced DBS check, your DBS certificate will disclose details of all spent and unspent cautions and convictions unless they are eligible for removal (often referred to as filtered or protected).

If your criminal record meets the criteria set out below it will automatically be removed from your DBS certificate at the time an application is made.

Many organisations ask individuals for some kind of criminal record self-disclosure at application stage and it’s important therefore to know whether your offence will be removed from your DBS certificate to ensure that you do not disclose it to an employer if, legally, you don’t need to.

Background

Since May 2013, standard and enhanced DBS checks stopped disclosing all cautions and convictions after the introduction of a process referred to as ‘filtering’.

In July 2020, in response to a Supreme Court ruling in 2019, the government announced further changes to the process which came into force on 28 November 2020. These changes will see more people benefiting from having cautions and/or convictions removed from standard and enhanced certificates, allowing them to apply for jobs without the need to disclose old cautions and/or convictions.

‘Filtering’ is similar to the rehabilitation periods under the Rehabilitation of Offenders Act 1974. However, instead of establishing what is ‘spent’ and doesn’t get disclosed on a basic check, ‘filtering’ establishes what doesn’t get disclosed on a standard or enhanced DBS check.

Information that is filtered will be removed from a DBS check automatically at the point you apply for one. However, cautions and convictions do not get ‘removed’ or ‘wiped’ from the Police National Computer (PNC).

Recent changes to the criminal records disclosure regime

The changes which have been made to the criminal records disclosure regime apply to jobs and voluntary roles that involve a standard or enhanced check issued by the Disclosure and Barring Service (DBS). The new rules mean that:

  • Warnings, reprimands and youth cautions (including conditional cautions) will no longer be automatically disclosed on a DBS certificate.
  • The multiple conviction rule has been removed. This means that individuals with more than one conviction will have each conviction considered individually against the criteria, rather than all being automatically disclosed.

How filtering works

What will be disclosed on a standard or enhanced DBS check?

The rules around what cautions and/or convictions are automatically disclosed are set out in legislation. The table below provides details of what a standard or enhanced certificate must include:

* A full list of specified offences can be found on the DBS list of offences that will never be filtered.

What will not show up? Cautions

  • Reprimands, final warnings and youth cautions (including conditional cautions) received when under the age of 18 will be removed from standard and enhanced checks immediately, regardless of the offence. This means that even if your caution was for a specified offence it would still be removed.
  • Adult cautions will be removed from standard and enhanced checks if 6 years have passed since the date of issue, providing it is not for a specified offence.

The process applies no matter how many cautions you have. Cautions will be removed even if you have others which are not (for example where others are for a specified offence or they are too recent).

What will not show up? Convictions

Convictions received when 18 or over will be removed from standard and enhanced checks if:

  • 11 years have passed since the date of conviction.
  • they did not result in a prison sentence (or suspended sentence).
  • they were not for a specified offence.

The process applies no matter how many convictions you have. They will be removed even if you have others which are not (for example where others are for specified offences or they are too recent).

For a conviction received when under 18, the same rules apply as for adult convictions, except that the elapsed time period is 5.5 years.

Offences that stay on (‘specified offences’)

A ‘specified offence’ is one which is on the list of offences that will never be filtered from standard and enhanced DBS checks. The list includes a range of offences which relate to sexual or violent offences, or are relevant in the context of safeguarding.

The table below provides a summary of the types of offences which are eligible for removal and those that are not.

 

Find out whether your conviction/caution will be filtered

To establish whether your caution and/or conviction is going to be removed from your standard or enhanced check and, doesn’t need to be disclosed to an employer, you can use our flowchart below:

Positions not covered by filtering

There are a small number of jobs where filtered cautions and/or convictions can be taken into account. Some examples of this include police vetting for police constables and cadets. A court ruling in 2017 established that the filtering rules should be applied by the police when recruiting for other roles such as service support officers. Other positions include:

  • Judicial appointments;
  • Constables and persons appointed as police cadets to undergo training with a view to becoming constables and naval, military and air force police;
  • Any office or employment in the Serious Fraud Office or in the National Crime Agency;
  • The Commissioners for Her Majesty’s Revenue and Customs and any office or employment in their service;
  • The Official Solicitor and his deputy;
  • Certain appointments to the office of Public Trustee;
  • Any office, employment or other work which is concerned with the establishment of, operation of, or access to a database under section 12 of the Children Act 2004;
  • Firearms dealer; and
  • A person who is required to obtain an explosives certificate.

Disclosure of criminal records in these instances is not provided by the DBS.

Prison and probation roles are not exempt from the filtering rules and applicants can therefore legally withhold details of cautions/convictions which are removed from standard and enhanced DBS checks.

Other information disclosed on enhanced DBS certificates

In addition to cautions and convictions recorded on the PNC, enhanced certificates may also include police intelligence (approved information) if a chief officer of a police force considers it relevant. The disclosure of this information is subject to statutory guidance but the police could, in principle, disclose information about offences which have been filtered from an enhanced certificate if they felt that it was relevant to the position applied for and ought to be disclosed.

We have not previously seen any evidence of this but we would be interested in hearing from anybody who has had filtered cautions/convictions disclosed on their enhanced DBS certificate. Please email us at policy@unlock.org.uk.

If you use the DBS Update Service

If you are signed up to the DBS Update Service it is important to note that the filtering of a caution or conviction would not lead to a status change. A status change is only prompted when there is new information to be added, or an offence needs to be changed or amended, or because you have become barred. An offence which has been filtered would mean the removal of information from your certificate.

If you require a new certificate which does not show cautions or convictions which have been removed, you will need to apply for a new DBS check.

If an organisation currently holds information about your criminal record

In order to comply with data protection legislation any organisation that keeps criminal record information will need to consider how they manage the data they hold.

If you have previously disclosed details of your criminal record to an employer, university etc we recommend that you ask them to amend or delete their records as soon as your caution and/or conviction is filtered under your rights of rectification.

Information for employers

Where a role is included in the ROA Exceptions Order, employers can ask about cautions and convictions which are ‘not protected’ (filtered). In light of the changes introduced in November 2020, employers will need to review the questions they ask on application forms together with any guidance they provide.

Further information can be found here.

If an employer takes into account a conviction or caution which has been removed (possibly because it was disclosed in error) then they could be acting unlawfully. You can find further information on our spent and unspent convictions and employment law page.

Examples

Below are some scenarios that will help to explain how the rules work in practice:

Marcus was a teenager when he was convicted of 6 offences of theft between 1992 and 1994. These will no longer be disclosed on standard or enhanced DBS checks as the convictions happened more than 5.5 years ago, when Marcus was under 18.

Sasha was convicted of 4 counts of benefit fraud in May 2012, when was was 31. These will be removed from standard or enhanced DBS checks in May 2023, 11 years after Sasha was convicted as an adult.

Anita received a reprimand for arson at age 11, and a final warning for ABH aged 14. Reprimands and final warnings, issued to under 18’s and since replaced by youth cautions, will never be disclosed on standard or enhanced checks, regardless of the offence.

Lenny was convicted of ABH at age 14. He received a youth referral order. His conviction will continue to be disclosed on standard or enhanced checks because he was convicted of an offence that is on the list of offences which cannot be filtered.

Kyle accepted a youth caution for common assault in 2001, when he was 16. He was convicted of drug possession in 2010 when he was 25 and paid a fine. His youth caution will never be disclosed on standard or enhanced checks. His conviction for drug possession will be removed from checks in 2021 – 11 years after the date of conviction.

Abdi was convicted of drink driving in 2009 when he was an adult – he was disqualified and paid a fine. Three years later, he was convicted of drink driving again and was sentenced to 12 weeks in prison, suspended for a year. Abdi’s first conviction will be filtered from a standard or enhanced DBS check this year, 11 years after he was convicted. His second conviction will always be disclosed because he received a suspended prison sentence.

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed can be found here.

More information

  1. For practical self-help information – We have further information on employment
  2. To discuss this issue with others – Read and share your experiences on our online forum
  3. Our policy work – Read about the policy work we’re doing on this issue
  4. Questions – If you have any questions about this you can contact our helpline.

Get involved

Help us to add value to this information. You can:

  1. Comment on this information (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum

 

 

Which cautions and convictions will be removed from a standard or enhanced DBS? – A brief guide

Download: Which cautions and convictions will be removed from a standard or enhanced DBS? [PDF]

You can find further information in our new guidance – Criminal records that don’t show (stay) on a standard or enhanced DBS checks (filtering and protected cautions and convictions)

In July 2020 the government announced plans to change the rules of what is disclosed on (and removed from) standard or enhanced criminal record checks issued by the Disclosure and Barring Service (DBS) in response to a Supreme Court ruling in 2019. The changes came into effect on 28 November 2020. This brief guide explains what those changes mean. Find out more about the changes here.

What information can be removed from standard or enhanced DBS checks?

Some cautions and spent convictions can become ‘protected’. Once protected, they are ‘filtered’, meaning they won’t be disclosed on standard or enhanced DBS checks.

Filtered cautions and convictions do not appear on a standard or enhanced DBS check. However, they are not ‘removed’ or ‘wiped’ from police records.

  • If you’re applying for a job or role that involves a standard or enhanced DBS check, cautions and convictions that are filtered won’t be included on results of the check.
  • If you’re carrying out a standard or enhanced DBS check as an organisation, you should be clear to applicants that they do not have to disclose any cautions or convictions that are filtered and you must ignore any filtered cautions/convictions if you become aware of them.

What are the key changes?

There are two main changes to the current rules that happened in November 2020:

  1. Reprimands, final warnings and youth cautions are no longer disclosed: Regardless of the offence, reprimands, final warnings and youth cautions are no longer disclosed on any DBS check.
  2. Multiple convictions can be filtered – Provided the offence is eligible and didn’t lead to a suspended or actual prison sentence, convictions can now be filtered from standard and enhanced DBS checks after the relevant time period has passed, even if there is more than one conviction or offence on record.

What is staying the same?

  1. The list of offences – the “offence rule” – The list of offences that cannot be filtered has not changed. Read our list of common offences that can be filtered here. The full list of offences that cannot be filtered, published by the DBS, can be found here.
  2. Prison sentences – the “sentence rule”– Convictions that resulted in a prison sentence (or suspended sentence) cannot be filtered.
  3. The time periods – The time periods before adult cautions and spent convictions can be removed remain the same.

These changes apply to what is disclosed for jobs and roles that involve a standard or enhanced DBS check. The rules for what is disclosed on basic criminal record checks are set out in the Rehabilitation of Offenders Act 1974 (ROA). Basic checks show unspent convictions. Once a conviction is spent, it will not be disclosed on a basic check. Read our guidance on the Rehabilitation of Offenders Act 1974.

Examples of how the new rules will affect existing criminal records

Marcus was a teenager when convicted of 6 offences of theft between 1992 and 1994. Under the new rules these will no longer be disclosed on standard or enhanced DBS checks as the convictions happened more than 6 years ago, when Marcus was under 18.

Sasha was convicted of 4 counts of benefit fraud in May 2012, when she was 31. Under the new rules, these will be removed from standard or enhanced DBS checks in May 2023, 11 years after Sasha was convicted as an adult.

Anita received a reprimand for arson at age 11, and a final warning for ABH at age 14. The new rules mean reprimands and final warnings, issued to under 18s and since replaced by youth cautions, will never be disclosed on standard and enhanced checks, regardless of the offence.

Lenny was convicted of ABH at age 14. He received a youth referral order. His conviction will continue to be disclosed on standard or enhanced checks because he was convicted of an offence that is on the list of offences that cannot be filtered.

Kyle accepted a youth caution for common assault in 2001, when he was 16. He was convicted of drug possession in 2010 when he was 25 and paid a fine. His youth caution will never be disclosed on standard or enhanced checks. His conviction for drug possession will be removed from checks in 2021 – 11 years after the date of conviction.

Abdi was convicted of drink driving in 2009 when he was an adult – he was disqualified and paid a fine. Three years later, he was convicted of drink driving again and was sentenced to 12 weeks in prison, suspended for a year. Abdi’s first conviction will be removed from a standard or enhanced DBS check this year, 11 years after he was convicted. His second conviction will always be disclosed because he received a suspended prison sentence.

Flowchart

 

 

 

Enforced subject access

Summary

‘Enforced subject access’ (under section 184 of the Data Protection Act 2018) prevents employers from requiring people to use their subject access rights under the DPA to provide certain records, such as police records, as a condition of employment. It also prevents contracts from requiring certain records as a condition for providing or receiving a service, such as housing or insurance. Requiring people to provide these records will become a criminal offence, punishable by a fine. In England and Wales the maximum financial penalty on summary conviction in the magistrates’ court is £5,000 (soon to be unlimited). On indictment in the Crown Court the fine can be unlimited.

We’ve long argued that section 184 needs to be brought into force, but this wasn’t ever possible until reforms to the Rehabilitation of Offenders Act 1974 were brought in on the 10th March 2014. Section 184 came into force on the 10th March 2015.

For people with convictions, this is an important development. Although it doesn’t prevent employers and others from getting access to criminal records through legitimate means, what section 56 does do is prevent the use of significant amounts of sensitive personal data that can be disclosed as part of a subject access request.

In the past, we’ve come across examples where employers, insurers, education providers and housing providers have required people provide copies of their police record by applying to the police and paying £10 for a subject access request. This type of request discloses all information held on the Police National Computer, including convictions and cautions that are spent, as well as allegations or other ‘local police information’.

The introduction of section 184 will enable a clearer message to be given to any organisation that is found to be undertaking this type of practice. The legislation only allows requirements of this type where the record is required by law or is justified in the public interest.

Frequently asked questions

No. It means that an employer can’t make you do a ‘subject access request’ under the Data Protection Act to get a copy of your police record.

Depending on the job, an employer will still be able (if they wish) to require you to undergo a basic, standard or enhanced criminal record check.

What you should do will depend on the reason for the request. For example, if it’s for a job that would be eligible for a standard or enhanced check, then you might advise them of that. If not, then it might be that they’re only allowed to ask you to do a basic disclosure. Ultimately, you should be able to refuse to do it. Use the guidance above to help you. Either way, if you have evidence of them requiring you to do an enforced subject access, send us the details.

This is the phrase that is used to describe the process of obtaining a copy of the records that organisations hold on you. In this context, it’s mainly referring to you obtaining a copy of your police record.

Yes. This means that insurers will no longer require you to provide a copy of your police record. Instead, if they do require any form of official record of unspent convictions, they may ask you to consent to a basic disclosure.

Yes. It applies to any individual or organisation that ‘requires’ you to do a subject access request. For example, housing associations will no longer be able to require you to obtain a copy of your police record.

Yes. In guidance to schools it’s been made clear that they cannot require individuals to obtain police records of either themselves or those that live or work in the same household as them.

Yes. Under the 2003 Licensing Act Guidance (4.6) Regulations, in order to substantiate whether or not an applicant has a conviction for an unspent relevant offence, a licensing authority can, for the granting of a personal licence request a criminal conviction certificate, a criminal record certificate (both of these are basic DBS checks), or the results of a subject access search of the Police National Computer by the National Identification Service to the licensing authority. This means that whilst an enforced subject access request is now illegal, it can be requested for the granting of a personal licence. We would always recommend that when applying for a personal licence, you provide a basic DBS check rather than a SAR which would disclose the details of all convictions rather than just those which are unspent.

Other useful resources

ICO guidance on enforced subject access requests

FAQ’s on DBS Filtering

This page sits within our information section on criminal record checks for employment. This is a specific page with FAQ’s covering the DBS filtering process.

This includes conditional cautions, as well as their youth equivalents, such as reprimands and final warnings, as well as the recently introduced youth caution.

Where a court imposes a non-conviction bind-over this will not be considered to be a conviction for the purposes of filtering. Technically, these should not be disclosed (unless via ‘other police information’) on standard and enhanced checks.

However, a court may impose a bind-over having found an individual guilty. In such circumstances this would amount to a conviction for the purposes of filtering.

Yes. Absolute discharges are only imposed following a finding of guilt, and therefore are regarded as a conviction for filtering purposes.

Yes. For the purposes of this filtering process, a conditional discharge is regarded as a conviction. A conditional discharge is imposed on conviction for an offence.

A suspended sentence is treated under legislation as a custodial sentence. This means that if you have a conviction which received a suspended prison sentence, it will not be filtered. A Detention and Training Order is also treated as a custodial sentence.

Custodial sentences are defined in section 5(8) of the ROA, as to be substituted by section 139(1) and (4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

This order results from a conviction and therefore filtering will or will not apply depending on the offence committed. It is not regarded as a custodial sentence.

Where a person has a non-recordable service offence, for example being absent without leave, this will no longer be subject to disclosure under the Exceptions Order once it has become spent. Thee are no other changes to the treatment of service offences under these provisions, although this is an area that we are looking at to see whether we can provide more guidance on service offences more broadly, as a number of issues have been raised about these.

The filtering rules cover convictions, cautions and their equivalents obtained overseas, where a check is being carried out in England & Wales by the DBS and an equivalent offence can be found.

This is not an easy process, and we’re expecting individuals who have things on their record from overseas to have to check the DBS certificate they receive. It’s not clear how this will work, as it is a complicated process to ‘match’ disposals from overseas.

It relates to the date of conviction or disposal, it does not mean when the offence was committed. So for convictions, it means when you went to court and either pleaded guilty or were found guilty. For cautions, it means when you accepted a caution.

Yes. Multiple cautions (and their youth equivalents) can be eligible for filtering, regardless of the number of convictions received.

The time periods are per caution (or conviction). So, it is possible for one caution (or conviction) to be filtered, but for another caution not to be filtered yet.

Yes. Cautions (and their equivalents) have separate filtering periods. If you later receive a further caution, or a single conviction, these will be dealt with separately under the filtering rules.

Yes. Convictions have separate filtering periods. If you later receive a caution or another conviction, these will be dealt with separately under the filtering rules.

Any conviction for an offence of attempting, conspiring, aiding or abetting, encouraging or assisting, the commission of any specified offence will also not be filtered. For example, an offence of attempted rape will not be filtered.

No. The Rehabilitation of Offenders Act 1974 (ROA) sets out when your convictions become spent. Employers are able to carry out a basic level disclosure to confirm unspent convictions.

The filtering process applies to roles that are exempt from the ROA, which are entitled to carry out standard and enhanced level disclosures. Previously, these have always disclosed all cautions and convictions. The changes will reduce, in some cases, what is disclosed on these level of checks.

No. Nobody should be in a situation where a caution or conviction is now disclosed that wouldn’t have been disclosed immediately before this process came into force. Some people who benefited from previous processes (such as step-down) may find that their caution or conviction isn’t filtered under this process, but this is no different to what it was immediately before the filtering process was brought in.

No. The DBS will filter all information that meets the rules of the process. We understand that much of this process will be automatic, but some cases (such as those involving disposals obtained overseas) will be dealt with on a case by case basis.

No. Filtering does not mean deletion. All ‘filtering’ means is that it is not disclosed on a standard or enhanced level check. The information will still be held on the PNC.

The only way you’ll know for certain is by applying for a standard or enhanced disclosure. Since the 17th June 2013, certificates are now only sent to you (and not your employer).

So, if you’re not sure whether something will be filtered, and are in the process of applying for a position that involves a standard or enhanced check, you may want to wait until you have received the disclosure back from the DBS before disclosing something to an employer that has been filtered.

However, bear in mind that, if you’re fairly confident that parts of your record will not be filtered, you may be better off disclosing those elements that will not be filtered to the employer at the earliest possible opportunity.

This process only applies to standard and enhanced DBS checks.

In relation to basic checks, nothing should be eligible for filtering that isn’t already spent under the Rehabilitation of Offenders Act 1974 (and therefore not disclosed on a basic disclosure anyway).

The filtering process does not apply to other types of disclosures, such as Police Certificates issued by ACPO in support of applications to travel abroad.

The changes made to legislation impact on both what an employer can ask you, and what information they receive from the DBS.

An employer can only ask you to provide details of convictions and cautions that they are legally entitled to know. The filtering process changes what employers are legally entitled to know, and so it should change the questions that employers ask.

Where a standard or enhanced certificate can legally be requested (this is where the position is one that is listed in the Rehabilitation of Offenders Act 1975 (Exceptions) Order 1975), an employer can only ask an individual about convictions and cautions that would fall under the rules described above. That means only those convictions and cautions that would be disclosed on a DBS certificate.

If an employer takes into account a conviction or caution that would not have been disclosed they are acting unlawfully under the Rehabilitation of Offenders Act 1974.

There are a small number of defined positions where details of all convictions and cautions may be taken into account. These positions do not go through the DBS process. Examples include police vetting and firearms licence applications.

As a result of this filtering process, the DBS has amended the question on their application form – question e55. This means that you only have to “tick” if you have any cautions or convictions that would not be filtered.

Yes, potentially. However, so far we’ve not seen any examples of this, but it is possible. A chief officer may include details relating to an otherwise filtered conviction, caution, warning or reprimand on an enhanced disclosure if they consider, having regard to all the circumstances, that the filtered disposal is relevant and that it ought to be disclosed. It is unclear, at this stage, how filtered disposals will be dealt with by local police forces when deciding whether to disclose information as relevant police intelligence.

A filtered disposal may also continue to be considered by the DBS for the purposes of making a barring decision.

There is no such ability to add a filtered disposal back into a standard disclosure certificate.

Standard and enhanced DBS certificates will include details of convictions and cautions (including youth cautions, reprimands and warnings) recorded on the Police National Computer (PNC).

In addition to information from the PNC, an Enhanced certificate may also include information taken from police records that a chief officer of a police force considers relevant to the application and/or details of whether an individual is included on one or both of the two lists barring people from working with children and/or vulnerable adults.

Some PNC information will now be filtered and will not appear on the certificate. Cautions and convictions filtered out are set out in legislation.

No. Guidance on eligibility can be found on the DBS website.

Overview of the DBS

Unlock Guidance

Unlocking Criminal Record Checks – A guide for people with a criminal record (September 2013, in partnership with the DBS)

Links on this site

There is a dedicated section which covers the Disclosure & Barring Service.

Other useful resources

Disclosure and Barring Service (DBS) checks (Volunteering England)

GOV.UK (Specific section on disclosures for individuals and organisations)

Identity checking guidelines (DBS)

Find a DBS umbrella body (DBS)

Disclosure & Barring Changes (Home Office)

DBS update service

Aim of this page

This page explains the Disclosure & Barring Service’s (DBS) update service, as well as the “one certificate” change in 2013.

Why is this important?

The update service is a subscription service that lets you keep your DBS certificate up-to-date so you can take it with you when you move jobs or roles. The employer can then carry out free, online, instant checks to see if any new information has come to light since the certificate’s issue – this is called a ‘status check’.

To coincide with launching the update service in 2013, the DBS changed to only issuing one certificate, usually to the applicant. They no longer send a copy to the registered body. This change is being referred to “one certificate”. Employers will now need to ask you to see your DBS check.

There are both pros and cons of these services and it’s important to have an understanding of how the systems work and what information will be available to your employer.

Introduction

This information looks at specific areas that will be of interest to people with convictions. To keep it brief, we haven’t repeated the detailed information that the DBS has published on these changes. They have gone into the processes in some detail in their guidance. More generally, the DBS has lots of information online about their process for  customers and stakeholders as well as latest news and corporate/policy information

Update service

The DBS update service lets you keep your DBS certificates up to date online and allows employers to check online to see whether there are any changes to the certificate that you have shown them. The service costs £16 (free for volunteers). This means you will be able to take your DBS certificate with you from role to role, within the same workforce, where the same type and level of check is required.

Who can carry out a status check?

An employer doesn’t have to join the update service, or pay a fee, to check a DBS of someone who’s check is part of the update service. You will be able to check who has carried out a status check on you.

What does an employer need to do to carry out a status check?

  • Have your consent either verbally or in writing
  • See the original disclosure to check it is the same type and level as they are legally entitled to, make sure that the right checks have been carried out and see what, if any, information was disclosed about you
  • Check your identity.
  • Check your name on the DBS check matches this identity.
  • Note the DBS check reference number, your name and date of birth.
  • Comply with the DBS code of practice; which includes having a policy on the recruitment of people with a criminal record.

What does an employer see when he checks your criminal record using the DBS Update Service?

 

Can I stop an organisation checking the status of my DBS?

Yes. You will need to contact them and withdraw your consent for any future checks. If they fail to stop they would be breaking the law by accessing data they were not entitled to see. If they persist you could remove the check from your account but this would also mean other organisations would not be able to carry out a status check on it. If they persist, you should contact the Information Commissioner’s Office.

This means that, broadly, you should be careful who you give your consent to. If you were to withdraw your consent, if you think they would continue to check (even though it would be against the law) you’d have to remove the check from your account. Given you cannot then add it back onto the account again, you would have to apply for a new check.

Will filtering change the status of my certificate?

The filtering of a caution or conviction would not cause a status change through the update service. A status change is only prompted when there is new information to be added, or an offence needs to be changed or amended, or because you have become barred, whereas an offence being filtered out would mean a removal of information from your Certificate.

If you wish to have a new DBS check which does not show the offence that has been filtered out, you will need to apply for a new DBS check.

Given that, once something is filtered, you no longer need to disclose it, if you have a DBS check with something on it that has since been filtered, it would be sensible to apply for a new certificate.

Can I subscribe to the update service if I have a manual check?

Manual certificates are usually produced by the DBS when a technical issue occurs when retrieving data held on the Police National Computer (PNC) and transferring it to an automatically generated certificate. A common example is when someone has appealed their conviction and the appeal has been dismissed. Because of the way in which the information is recorded on the PNC it fails to display the original disposal on the certificate and a manual certificate will be generated.

Currently, anybody who has a manual certificate can’t join the Update Service as manual certificates can’t be kept up to date online. The DBS are currently working to overcome this issue and we’re feeding into this work so if this has caused you a problem, do let us know.

My employer has requested an early confirmation check; what is this?

As a subscriber to the update service, with your permission your employer is entitled to carry out status checks to see if the information on your DBS check has changed.

An early confirmation check is where they have been informed that there has been a change, and have requested an early confirmation check to see if the change came as a result of you being placed on either of the DBS barred lists.

The “one certificate” change

To coincide with the launch of the update service 2013, the DBS no longer automatically issues a copy of your check to the registered body. Employers will need to ask you for sight of your DBS check

Does the disclosure still get sent to the employer?

No, not normally. However, registered bodies will be entitled to ask the DBS for a copy of your DBS certificate if you don’t provide them with an updated certificate as a result of a change reported through the update service. For this to happen, all of the following conditions must apply:

  1. You must be subscribed to the update service
  2. The employer carried out a status check which revealed a change to the DBS check, and as a result;
  3. You have applied for a new DBS check; and
  4. The DBS issued the new DBS check to you more than 28 days ago; and
  5. You have not shown the employer your new DBS check

If you raise a dispute on the new check, the DBS will not issue a copy to the registered body until 28 days after the dispute is resolved.

Can I apply for a check without a particular job or role secured?

Technically, no. However, once you’ve applied for a DBS certificate for a particular role, so long as you subscribe to the update service at application stage, or within 14 days of getting it, you’ll be able to use this for future roles (assuming the same level of check is required)

Can any employer ask me to show them my DBS check?

Technically, no. An employer is only entitled to ask for a certificate that is of the level that the job or position relates to.

This means that any employer is entitled to ask to see a basic disclosure. Only roles or positions that meet certain eligibility are entitled to see a standard or enhanced level check.

However, in practice, given the update service and one certificate change, people will increasingly ‘own’ their DBS check, and so there is a risk that it becomes commonplace for employers to ask to see a DBS check, even if the role/position that it relates to is not entitled to it.

Will the employer know if I’ve got a criminal record?

Possibly. Umbrella bodies don’t get to see your disclosure, but they’re told by the DBS if there is any information on it, i.e. a caution or conviction. They might then tell the organisation that is ultimately requesting the check. The idea behind this is that, for individuals with ‘clear’ disclosures, the employer will get notified of this by the umbrella body, and therefore don’t have to wait for the individual to provide them with a copy. For individuals with a caution or conviction on the disclosure, the organisation will get told to wait to see the certificate that the individual has been sent.

This might mean that, if something gets disclosed on your DBS disclosure, the organisation might know that something has been disclosed on there (although they won’t know the details) and it’s likely that they’ll be keen for you to show it to them.

Benefits

  1. Ensures that you know what you need to disclose to an employer, giving you the opportunity to disclose this information in the way you think is best for you.
  2. Minimises the risk of inaccurate information being disclosed to a third-party, as you are responsible for providing the certificate to the employer, and so you can take steps to challenge any inaccurate or disproportionate disclosure before you show it to them.
  3. Clarifies what, if any, information the police decide to disclose as ‘other relevant information’, allowing you to know this and explain this to the employer.
  4. Prevents ‘over-disclosure’, as the check does not disclose filtered information, or information no longer stored on the PNC.

Downsides

  1. The responsibility for covering the cost of the Update Service is more clearly placed with the individual, rather than the employer.
  2. It still isn’t possible to get a DBS check before you apply for a particular job.
  3. It makes it easier for employers to ask for the DBS checks of applicants, even if they’re not eligible for one.
  4. The responsibility for the disclosure of criminal conviction information shifts from the DBS to the individual – whilst in terms of inaccurate information, this is an advantage, it may result in criminal conviction information becoming integrated more and more as part of the ordinary recruitment process.
  5. There is the potential for the point at which a DBS disclosure is requested to move to being made much earlier in the recruitment process. Currently, as employers usually cover the cost of the check, they only do it after selection, whereas this may move towards using it as a pre-selection tool.
  6. There is also an issue regarding how the disclosure of non-conviction information operates, given that the DBS is sector-based (i.e. applying to working with either children or vulnerable adults, or both) rather than specific to a particular position, and so could potentially lead to much more non-conviction information being disclosed (as information could be more readily seen as being relevant).

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Useful links

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

More information

  1. For practical information – More information on employment
  2. To discuss this issue with others – Read and share your experiences on our online forum
  3. Question – If you have any questions about this, you can contact our helpline.

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This page was last fully reviewed and updated in December 2024. If you’ve spotted something that needs updating, please let us know by emailing the details to feedback@unlock.org.uk

Eligibility for standard and enhanced checks

Aim of this page

This page is designed to bring together information relating to eligibility for standard and enhanced criminal record checks.

Why is this important?

When recruiting new staff, employers don’t always make it clear whether they intend to carry out a criminal record check or what level of check they may be applying for. In addition, some employers may try to apply for a level of check for which a role is not eligible.

If you have a criminal record, the type of check being done may be the most important part of the recruitment process. If an employer is going to do a standard or enhanced check it’s important to know that the role you’re applying for is eligible for this level of check and if it’s not, how to challenge it.

Common roles and level of criminal record check

Basic checks (roles covered by the Rehabilitation of Offenders Act)

Standard checks (roles ‘exempt’ from the Rehabilitation of Offenders Act)

Enhanced checks (roles ‘exempt’ from the Rehabilitation of Offenders Act and included in Police Act regulations)

Specific roles

We have produced an A-Z of job roles and their eligibility for basic, standard and enhanced checks. 

Categories of eligibility for standard and enhanced checks

The types of positions which may be eligible for standard or enhanced checks are contained in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. These can be divided into five broad categories: –

  1. Professions: e.g. medical practitioners, barristers, accountants, vets and opticians
  2. Law & Order: Those employed to uphold the law or involved in the criminal justice system (e.g. judges, constables, prison officers and traffic wardens)
  3. Certain Regulated Occupations: (e.g. firearms dealers, directors of insurance companies, those in charge of nursing homes and taxi drivers)
  4. Health and Social Care: Those who work with children, those whose work is concerned with the provision of care services to vulnerable adults and those whose work is concerned with the provision of health services (e.g. care home worker, social worker)
  5. National Security: Those whose work could put national security at risk (e.g. air traffic controllers and certain employees of the Crown)

Enhanced disclosures

If you’re engaging or planning to engage in regulated activity, it is possible for an employer or voluntary organisation to carry out an enhanced check, including checking whether you’re barred from working with children, adults or both.

It’s important to note that even if a job role now falls outside the revised definition of regulated activity, it may still be entitled to an enhanced Disclosure and Barring Service check. This is because roles which were previously subject to the Rehabilitation of Offenders Act (Exceptions Order) and the Police Act 1997 have not changed.

What is regulated activity?

‘Regulated activity’ is concerned with activities which are seen as placing someone in a vulnerable position, for example through a relationship of trust or dependency. There are different definitions of regulated activity, depending on whether an activity involves children or adults.

Guidance on eligibility

The DBS’s Eligible Positions Guidance provides details on the positions that are eligible for a standard or enhanced check. It is not comprehensive and only gives an indication of the general types of employment that are included in the Exceptions Order.

Alternatively, you can use the DBS eligibility tool to check whether the role you’re applying for would be eligible for a standard or enhanced DBS check.

Establishing eligibility

It’s not always clear what type of check a particular role is eligible for. We have produced a process that helps individuals establish the eligibility of particular roles, which runs alongside the guidance above – this is referred to as our establishing eligibility process.

Challenging eligibility

If you think an employer or organisation is carrying out a criminal record check that the position isn’t eligible for, you can challenge it.

Why does it matter?

For people with a criminal record

Any employer can do a basic check. However, only certain roles are eligible for higher levels of checks.

An employer undertaking the wrong level of check can have a huge impact. For example: –

  • If your criminal record is spent, it would not be disclosed on a basic certificate but would be disclosed on a standard or enhanced certificate.
  • If the police hold information about you locally, this wouldn’t be revealed by a basic or a standard certificate, but may be disclosed on an enhanced check.

Once a criminal record check is carried out and your employer has the relevant information, it is very difficult to stop them from applying the information to a recruitment or dismissal decision.

For employers and registered bodies

Registered Bodies (RBs) are required to comply with the DBS Conditions of Registration. This states that they must use all reasonable endeavours to ensure that each individual application submitted is eligible for the level of check requested.

The DBS service is underpinned by law. When an RB signs the declaration on the application form, they are confirming that the position is eligible for a check. It is a criminal offence to knowingly submit an application which is not eligible, and this covers employers who use Umbrella Bodies to submit applications on their behalf.

Discuss this with others

Read and share your experiences on our online forum.

Key sections include:

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

More information

  1. For practical information – More information can be found on our section on criminal record checks for employment (including DBS checks)
  2. To discuss this issue with others – Read and share your experiences on our online forum
  3. Questions – If you have any questions about this, you can contact our helpline.

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Establishing what level of check an employer can carry out

 

Aim of this page

What level of check an employer can carry out is important, particularly if you have spent convictions, as they wouldn’t be disclosed on a basic check.

We have general guidance on the types of jobs that are often eligible for certain types of checks. This page is designed to help you establish what level of check an employer would legally be eligible to carry out. It forms part of our section on criminal record checks for employment.

Why is this important?

We know that on occasions, employers will request DBS checks for roles that only require a basic check. Having an understanding of what level of check a job is eligible for can ensure that an employer is not able to find out more about you than legally they are allowed to know.

If you feel sure that an employer is trying to do an ineligible check, this should give you more confidence in challenging the check with the employer or the Disclosure and Barring Service.

The DBS eligibility tool

The DBS recently launched an eligibility tool which may help you to establish which roles or activities could be eligible for a standard or enhanced DBS check. The eligibility tool is still relatively new and doesn’t cover every role. However, it is being continually tested and improved.

DBS tool checker

Our ‘Establishing eligibility’ process

We have developed this process (EEP) to help you establish what type of check a particular position is eligible for.

Using the EEP

The EEP is a single flow chart.  Some sections have more detailed guidance and these are clearly labelled, e.g. ‘See Note 1’.  To find out more about these steps, go to the relevant sections below.

The EEP is designed to be used before an application is made for a criminal record check when you’ve been told that a certain type of check will be carried out and you are unsure about whether it is eligible

dbsflowchart

Further down this page, reference will be made to the ‘Establishing Eligibility’ form

Download the ‘Establishing Eligibility’ form here

Note 1 – Ask the organisation

Check their paperwork

Most organisations provide details if they require a check for a specific position. Look for any mention of criminal record checks in the job description, role specification and any other information they have provided.

Check their website

Look for the organisation’s employment policies. The DBS Code of Practice requires organisations who use the DBS service to include a policy on the recruitment of people with convictions. Look to see if they have a policy on which roles require a check.

Check the DBS application form

q61

If the organisation has already given you a DBS application form to complete, look at question X-61 (position applied for) – see image above. This is normally completed by the Registered Body (RB) after you have completed the form. If it has already been completed, make sure it matches the specific job that you have applied for.

It is important to check this because the DBS do not ordinarily query eligibility based on the answer to this question unless it has been brought to their attention.

Remember that a position which may not seem eligible (e.g. “administrator”) may be eligible due to other circumstances. The RB should give as much detail as possible (e.g. “school administrator”).

Contact the organisation

Asking the organisation directly can be the quickest way to find out which type of check will be required (if any). However, if you don’t do this anonymously, you may raise suspicion that you have a criminal record.

Next steps

  • If you believe the organisation is right: You need to decide whether to give your consent to the check. You are not legally obliged to give your consent but if you refuse the employer will normally reject your application for the job.
  • If you are not sure whether they are right or wrong: Go to Note 2 (below)
  • If you believe the organisation is only entitled to a lower check: Go to Note 2 (below)

If you believe the organisation is actually entitled to a higher check: Proceed with your application. Whilst you may be able to refuse, you may want to disclose now if you want to avoid an issue at a later stage.

Note 2 – Gather more information

Some job titles are often assumed to make the role eligible for a specific level of check. For example, a “Teacher” might be assumed to be eligible for an enhanced check. However, a teacher in a University (such as a Lecturer) would normally only be eligible for a basic check.

Equally, some job titles are assumed to make the role ineligible for a specific level of check. For example, an “Office Assistant” might be assumed to be ineligible for an enhanced check but might be eligible for one if working in a school or care home.

To understand what level of check the position is eligible for, you need to find out as much information about the role as possible. The Establishing Eligibility Form provides a set of standard questions for which you should try to get answers.

Alternatively, you could use the DBS eligibility tool checker which will take you through a series of questions to estabish eligibility.

Next steps

  • Go to Note 3

Note 3 – Decide for yourself

The answers to the questions in Establishing Eligibility Form or the DBS eligibility tool checker should give you the information you need to establish eligibility or take the matter further if necessary.

Next steps

  • If you believe the organisation is right: You need to decide whether to give your consent to the check. You are not legally obliged to give your consent but if you refuse the employer will normally reject your application for the job
  • If you think that the organisation is wrong: Go to Note 4.

Note 4 – Challenge the organisation/registered body

The organisation may be a registered body itself or may have made the application via an umbrella body. In either case, you should raise your concerns with the organisation first. When you contact them, you will need to be careful not to raise suspicions that you have a criminal record.

You may want to initially speak with the organisation. However, if they insist that the position is eligible you should raise your concerns in writing and ask for a written response. This is so you have evidence which you may need to use later on. Remember to be aware that you may be identified if you share your personal information.

You should detail the reasons why you feel that the position is not eligible for the type of check being requested. Some things you might want to consider are: –

  • The organisation may already be aware of your concerns from your earlier questions
  • Ask them to reconsider undertaking a check
  • State what level of check you think the position is eligible for and offer to apply for it
  • Ask for a response in writing including reasons why they made the decision that they have.

If the organisation is not a registered body, you need to repeat the above with the umbrella body that they are using. They are the ones who are legally responsible for making the declaration about the eligibility of the check on the DBS application form.

Bear in mind that the umbrella body may not be fully aware of the details of the role. They will only know what the employer has told them. However, if you raise a query with them, they should be able to look into it and get back to you.

Next steps

  • If they agree and decide to undertake a different level of check:  Give your consent. If you disagree with the new level of check being proposed, repeat Note 4.
  • If they disagree: Go to Note 5.

Note 5 – Seek advice

Seek general advice from the DBS

If after all of the above steps a check is still being required for a position you don’t think is eligible, you should seek some advice about what to do next. When seeking advice, try to provide as much information as possible, including a completed ‘Establishing Eligibility’ form or a print out from the DBS eligibility tool checker.

However, you should also ask yourself whether, if successful, you would be in a better position. For example, if your convictions are unspent, even if you managed to show that the organisation isn’t entitled to an enhanced check, they’d still be entitled to a basic, which would show your unspent convictions.

You can contact the DBS by emailing customerservices@dbs.gsi.gov.uk or telephoning them on 03000 200 190.

Seek general advice from the Ministry of Justice

The Ministry of Justice (MoJ) has policy responsibility for the Rehabilitation of Offenders Act 1974 and Exceptions Order 1975. You can seek advice from the MoJ on the eligibility of a position. They have an online form you can use to contact them.

The MoJ may have to share your personal information with the Home Office (which is responsible for the Police Act regulations which govern enhanced checks) and other Government officials. If you do not wish this to happen, make this clear when you send your query. It may be possible for them to remove your personal information but they may be limited in how they can help. The MoJ will respond in writing, either by post or by email. A reply should be provided within 20 working days. It will state that the position is either (a) eligible, (b) not eligible or (c) may be eligible for the type of check that is being requested. In all cases they will provide reasons why. The MoJ is only able to give a general indication, based on the information you provide. Please note that this is not legal advice

The MoJ is unable to impose sanctions on an organisation as there is no offence committed in the initial asking of the questions. However, if the MoJ’s view is that the position may not be eligible, you can then present this information to the organisation.

Seek general advice from others

You may want to seek advice from organisations such as the DBS, Unlock etc.

Next steps

  • If it is not eligible: Send any evidence to the organisation and ask them to reconsider.
  • If the employer agrees: Give your consent. If you disagree with the new level of check being proposed, repeat Note 2.
  • If the employer disagrees: Go to Ineligible checks section.
  • If it is eligible: You need to decide whether to give your consent to the check. You are not legally obliged to give your consent but if you refuse the employer will normally reject your application for the job. If you decide to give your consent.
  • If it may be eligible: Either return to Note 2 (to clarify the role further before challenging the organisation and seeking official clarification again) or go to: Ineligible checks.

Discuss this with others

Read and share your experiences on our online forum.

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

  • Disclosure and Barring Service – Government body responsible for producing standard and enhanced criminal record checks
  • Disclosure Scotland – Government body responsible for providing basic criminal record checks in England, Wales and Scotland
  • Ministry of Justice – Government body working to provide a more effective and transparent criminal justice system and are responsible for the Rehabilitation of Offenders Act

Get involved

Help us to add value to this information. You can:

  1. Comment on this  page (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum
  4. Share your personal story by contributing to our online magazine
  5. Help our policy work – stopping unlawful checks

Disclosure of police intelligence on enhanced checks (approved information)

Aim of this information

Each Police Force maintains a local record of information, which can be used to disclose information referred to on a disclosure in the ‘other relevant information’ section on an enhanced check. This is formally known as ‘approved information’. It is often more commonly referred to as ‘non-conviction information’ or ‘police intelligence’.

This page aims to set out when this information is likely to be disclosed and, how to make a request to the police that they do not disclose it.

Why is this important?

‘Police intelligence’ generally relates to somebody who has never actually been convicted for the offence involved, but it may occasionally include additional information relating to a conviction.

If you have never been convicted or cautioned for a criminal offence, then there is no legal requirement for you to disclose this ‘additional information’. However, if it is disclosed on an enhanced criminal record check, then an employer may decide to take it into consideration when making a recruitment decision.

If the ‘police intelligence’ relates to a conviction, then you may find that the police will disclose more detail than you would have elected to disclose yourself.

It’s important to have an understanding of what options are open to you if the police do decide to disclose additional information about you.

What ‘local police information’ means

For the purposes of this page, local police information can include:

  • Fixed Penalty Notices (FPN’s)
  • Penalty Notices for Disorder (PND’s)
  • Findings of innocence
  • Acquittals
  • Cautions and convictions of those that you live with
  • Other Police intelligence (including allegations)

It does not include information held on the Police National Computer, including:

  • Cautions
  • Reprimands
  • Final warnings
  • Convictions

Cautions, reprimands and final warnings are not criminal convictions. However, in terms of disclosure, they are covered by the Rehabilitation of Offenders Act (which means, once spent, they do not need to be disclosed and you are protected by the ROA) and are also included in the Police Act 1997 as being disclosed on standard and enhanced checks as these are carried out for positions exempt from the ROA.

Who decides whether to disclose this information?

The decision as to whether to disclose local police information is made by the Chief Police Officer in the relevant police force area. Following the Protection of Freedoms Act 2012, this ‘decision-making process’ has two main guidance documents. These are the Statutory Disclosure Guidance, and the Quality Assurance Framework.

Guidance on how the police make the decision to include locally held information can be found here.

Statutory disclosure guidance

The statutory disclosure guidance follows on from a review of the criminal records regime conducted by Mrs Sunita Mason, the Government’s Independent Advisor for Criminality Information in February 2011. The guidance comes as a result of the Protection of Freedoms Act 2012.

The guidance came into force on 10 September 2012 and is designed to assist chief officers of police in making decisions in providing information from local police records for inclusion in enhanced criminal record certificates.

Quality Assurance Framework

The latest version the QAF is available to download from the DBS website.

Within this framework, there is detailed information available in relation to making representations against the disclosure of local police information.

How often is police information disclosed?

Local Police Information

** Shows the number of applications where there was a match against local police records. This is known as the police local cross referencing system or PLX system.

The above figures show that, since the statutory disclosure guidance (mentioned above) came into force in 2012, the amount of ‘approved information’ disclosed on enhanced checks has decreased significantly. In the year 2013/14, information was disclosed in only 0.83% of cases where there was a match against local police records.

Trying to stop it from being disclosed on an enhanced check

While there is no real hope of getting local police information deleted from police records, there are steps you can take to try and stop it from being disclosed on an enhanced check.

If you’ve not yet applied for a job involving an enhanced check

We suggest that you make sure that you have a full understanding about the information that is held on you by the Police. If you don’t know this already, you should look to do a Police Subject Access request and ask to see any local records held. This will give you details of any local information held on you. You should also contact your local police force and ask to see a copy of their policy/process for dealing with whether to disclose information of this type. It’s unlikely that the police will tell you at this stage whether they would be likely to disclose information on a particular enhanced check.

If you’ve applied for a job involving an enhanced check

Most police forces will normally contact you if they are thinking of disclosing information in the ‘other relevant information’ section, giving you the chance to make representations. However, this doesn’t always happen, so if you think that you might have information held about you and you’re worried that it might be disclosed, you should contact your local police force. You should ask them to give you the chance to make representations if they feel the need to disclose any information. Whilst there is no guarantee that they will do this, there have been reports that asking the police to do this will lead them to doing it through fear of being challenged legally for failing to do so. If/when the police get in touch, you should make sure that you make strong representations why the information is no longer relevant.

Independent monitor

If the police decide to disclose information, you will be sent this certificate to give to the employer. At this point, if you disagree with the decision to disclose ‘other relevant information’, you can challenge this through the Independent Monitor.

If you wish to make a referral to the independent monitor, you can complete a form on the DBS website or write to: DBS, Disputes, Customer Services, FREEPOST RTHU-TRJY-KSHY, PO Box 165, Liverpool, L69 3JD. Tel: 03000 200 190.

The DBS will refer your application to the relevant police service on behalf of the independent monitor to give the chief officer the opportunity to consider your dispute first.

If you are not satisfied with the police dispute response, your case will be referred to the independent monitor.

If you disagree with the findings of the Independent Monitor then your next step would be to seek judicial review.

The Supreme Court case of L v Commissioner of Police of the Metropolis in 2009 considered the issue of non-conviction information and what ought to be included. The Court decided that the police must strike a balance between the interests of the employer and the individual’s right to his private life. Provided the information is relevant to the position applied for and strikes this balance, it is reasonable for the police to disclose it.

Who can help

If you wish to challenge the disclosure of local police information, you should be able to go through a number of steps yourself. However, you may find the contact below useful.

Liberty were involved in the case of L (above) and have a strong interest in the civil liberties argument surrounding the disclosure of non-conviction information on a disclosure.

The legal contacts below are detailed because they have been involved in dealing with these types of cases in one way or another. It is not our aim to promote the services of legal advisors, but we do want to be able to provide information on contacts who may be able to help. You may also find the general section on legal advice in our Information Hub helpful.

John Ford Solicitors instructed Stephen Cragg and Charlotte Kilroy (of Doughty Street Chambers) to represent L in the case detailed on this page.

Slater and Gordon Lawyers have offered their services to people in these situations on a number of online forums, and so you may be able to source some help from them.

Trying to get it deleted

Under the ACPO Retention Guidelines, there is an Exceptional Case Procedure for the removal of DNA, fingerprints and PNC records. As each Chief Police Officer is the Data Controller of their PNC, they have the discretion to authorise the deletion of any specific data entry on the PNC owned by them. However, this discretion is only ever exercised in exceptional cases.

Exceptional cases will, by definition, be rare. They might include cases where it can be proved that the arrest was unlawful, or where it is established beyond doubt that no offence existed. A library of circumstances have been collected by the DNA and Fingerprint Retention Project (DNAFRP) that have been viewed as exceptional cases, and this is used to assist Chief Officers by providing a bank of precedents when considering requests to remove records.

To request removal:

  1. Write to your local police force. Ask for the record to be deleted. Ask for their policy on deletion, including what types of cases they will regard as exceptional.
  2. You should be sent a letter informing you that the record is held lawfully and that your request is being refused unless you believe it should be regarded as exceptional. You will be invited to state the grounds upon which you believe your case is exceptional.
  3. Write back outlining the reasons why you believe it should be deleted.
  4. The Chief Officer should then consider your response and either reply directly refusing your request, or refer the case papers to the DNAFRP to ensure a consistent national approach. If referring to the DNAFRP, the Chief Officer will receive an informed response. He/she will then notify you of their decision.

Some forces have published their policies publicly.

Background

Is this kind of disclosure legal?

The simple answer is yes. However, the disclosure of such information has been challenged a number of times by the courts (as discussed below) which has influenced the process that is used to decide whether information should or should not be disclosed.

There is a very good article written by Barrister Timothy Pitt-Payne covering a recent case which looked at, amongst other things, the legality and process of disclosing non-conviction information.

History

Guidance was previously covered in Home Office Circular 05/2005 Criminal Records Bureau: local checks by police forces, but since 24th September 2010 this has no longer been in force.

However, the impact of the case of L (R (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3) (also, see the submission by Liberty) as described by Mr Pitt-Payne, is a more cautious approach by the Police regarding the disclosure of local police information.

In once case which demonstrates the process that South Yorkshire adopted, they contacted the individual concerned, notifying them of the their intention to disclose non-conviction information. The letter explained the legal powers supporting the disclosure of such information, stated that they are minded to disclose the information, and then provided details of the proposed wording. The letter went on to state that the purpose of the letter was to afford the individual the right to make any representations that they consider relevant to the Chief Officers decision. The letter set a relatively tight time limit to reply (2 weeks from the date the letter was sent).

In response to this, the individual Unlock member wrote some rather detailed representations. The result was that he received a response back from the police stating that “on this occasion it has been decided not to proceed with the disclosure” and, when his check was issued, no non-conviction information was disclosed. However, it is important to note that the convictions that he had from many years ago were still disclosed, as currently this process doesn’t apply to cautions/convictions.

If you receive a similar letter proposing disclosure, or you simply want to make representations in advance of disclosure of non-conviction information, it would be sensible to look to get a copy of the Police Forces decision making process regarding non-conviction information, as well as using the statutory guidance and QAF process above, so that you are able to target your representations at elements which may affect the Chief Officers decision.

The process following L

Following the L case, many police forces have given individuals an opportunity to comment on the disclosure that the Police intend to make. As the Court in L was clear that there is no presumption in favour of disclosure, you could argue that the disclosure was not relevant to the new post/job you are seeking or that it is so old, vague, misleading or inappropriate that it ought not be disclosed at all.

If an inappropriate disclosure is made, you can challenge the quality of the information with the criminal records bureau or you can bring a judicial review in the High Court to have disclosure looked at afresh by a Judge. Time limits are tight and both steps must be taken within 3 months from the date of the certificate.

If disclosure affects your reputation, personal feelings or causes you to lose earnings (for example, if you lose your job or a promotion opportunity) you can seek damages as part of a judicial review application. Legal aid may be available.

Discuss this with others

Read and share your experiences on our online forum.

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

Get involved

Help us to add value to this information. You can:

  1. Send your feedback directly to us
  2. Discuss your views and experiences with others on our online forum

This page is for information only. We are unable to provide advice on this. Comments below have been disabled and will not be published.

Completing a criminal record check application

Basic applications

For more information, visit our page on basic disclosures.

Standard or enhanced applications

Who processes the check?

The DBS (Disclosure & Barring Service) acts as the ‘middle-man’ between the Registered Body (which checks eligibility and identity) and the Police (who provide the criminal record information for the certificate).

The Registered Body submits the application to the DBS. Many employers are not registered, and have to use another company called an ‘Umbrella Body’. However, some large employers are Registered Bodies themselves and can submit applications directly to the DBS.

Registered Bodies and Umbrella Bodies are legally responsible for the process of submitting the application. This includes identification and address verification and declaring that the position is eligible for the check.

Completing the form

Official guidance

The DBS produce a step-by-step guide on filling out the application form. This is available to download from the DBS website.

Providing accurate information

The application form is used to help the DBS and the Police to find your records. This is known as ‘PNC matching’. If you do not provide accurate information, you could be confused with somebody with a different criminal record. It is an offence to intentionally provide inaccurate details.

The question about convictions

e55

Question e-55 (see above) helps to identify your record on the Police National Computer (PNC). The declaration underneath the question means that you need to answer this question truthfully. 

The question on the form was amended in March 2014 to reflect the introduction of the filtering process (more information about filtering). The question is now:

“Do you have any convictions, cautions, warnings or reprimands that would not be filtered in line with current guidance?”

If you are not sure how to answer this question, you can apply for a Police Subject Access Request (SAR) to see what is on your record. Unfortunately, this doesn’t tell you what has been filtered – it provides you with everything that is on the Police National Computer. Once you have this, you should be able to work out what would be filtered.

If you’re not sure, and you don’t have time to complete an SAR, you should think about whether to tick “Yes” or “No”. if the form gets sent back to the Umbrella Body acting on the employers’ behalf you might be okay with ticking “Yes”, as the information isn’t normally shared with the employer. If, however, the form goes back to the employer, you should think carefully before ticking “Yes” as it might mean you’ll be telling them something you might not need to. Ultimately, it will depend on how confident you are that your record will be filtered.

If you have applied to have a repealed offence (something that is no longer a crime) removed from the PNC and received confirmation from the police, you do not need to include it. A repealed offence that has been removed from the PNC will not appear on a DBS certificate.

Checking the status of your application

You can check the status of your application online. You will need your DBS application form reference and your date of birth. If you cannot remember your form reference number, you should contact the DBS.

 

 

 

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