DBS start filtering cautions and convictions
"As some of you may have seen from the news, the Disclosure & Barring Service (DBS) has started, as of yesterday, a process of ‘filtering’ for cautions and convictions held on the Police National Computer.
Today, we’ve published our own detailed guide on how the DBS filtering rules will work. This can be downloaded here (http://www.unlock.org.uk/userfiles/file/informationhub/dbsfilteringprocess.pdf) .
Although we’ve known this has been coming for quite a few weeks now, it wasn’t until last week that we found out exactly when it would be coming into force. It wasn’t until yesterday when, along with everybody else, we got a chance to see the guidance that the DBS had written and, in particular, saw the full list of offences that are exempt from filtering."
Usually a job applicant has no legal obligation to reveal spent convictions. If an applicant has a conviction that has become spent, the employer must treat the applicant as if the conviction has not happened. A refusal to employ a rehabilitated person on the grounds of a spent conviction is unlawful under the Rehabilitation of Offenders Act (ROA)1974.
Certain areas of employment that are exempt under the ROA 1974 (Exceptions) Order 1975 [also The Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012], for which employers may ask about spent convictions. This is known as asking an exempted question. When answering, the applicant would have a legal obligation to reveal spent convictions.
The code of practice states that information on a DBS certificate should only be used in the context of a policy on the recruitment of ex-offenders. This is designed to protect applicants from unfair discrimination on the basis of non-relevant past convictions. The DBS has developed a specimen policy on the recruitment of ex-offenders to help guide organisations.
The minimum age at which someone can be asked to apply for a DBS check is 16 years old.
To find out more information about who is eligible for a DBS check consult the DBS check eligibility guide".
"The Ministry of Justice has stated that organisations should not insist that a DBS check forms part of a recruitment exercise or bid when tendering for contracts, unless the services provided meet the criteria for an eligible DBS check as defined by the exceptions, as this would breach employment law.
Standard checks – To be eligible for a standard level DBS check the position must be included in the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975.
Enhanced checks – To be eligible for an enhanced level DBS check, the position must be included in both the ROA Exceptions Order and in Police Act Regulations.
Enhanced checks with children’s and/or adults’ barred list check(s) – To be eligible to request a check of the children’s or adults’ barred lists, the position must meet the new definition of regulated activity. There are a small number of other positions for which you can also request list checks."
DBS check eligibility guide
DBS check requests: guidance for employers
Response from Ministry of Justice (Jeremy Wright)
"IMPLEMENTATION OF REFORMS TO THE REHABILITATION OF OFFENDERS ACT 1974
The critical prerequisite for the commencement of the reforms is to put in place a system for producing basic disclosure certificates, which show unspent convictions, which reflects the new rehabilitation periods in England and Wales. Until we do that there would be no way for an individual to obtain an official statement of their unspent convictions under the new rules.
Currently, basic disclosures reflecting the existing rehabilitation periods are available from Disclosure Scotland and this service is provided to residents of England and wales as well as scotland. However, the reforms to the RoA only revise rehabilitation periods for England and Wales, leaving the position in Scotland unchanged under its legislation. This complicates matters and creates two different rehabilitation regimes within the UK.
One option to address this situation is to agree with Disclosure Scotland that they will provide two differential basic disclosure services, one reflecting the rules in Scotland and the other the rules in England and Wales. Another option is for the Disclosure and Barring Service to initiate a basic disclosure service for England and Wales which adheres to the reformed rules in this jurisdiction. Neither of these options is straightforward and there are significant business and technical issues to work through.
Whilst this Department leads on the rehabilitation of offenders regime, it is the Home Office which has oversight of the Disclosure and Barring Service and the Scottish Government which has overall responsibility for Disclosure Scotland.
I cannot give a specific commencement date at present, but I recognise the frustration the delay is causing and can only reiterate that our aim is to have the reforms in place at the earliest possible point."