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Is the criminal records check system broken?

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The Police Act 1997 created the Disclosure and Barring Service (DBS) to enable employers to check your criminal history in some circumstances. When carrying out a check there are three main types of DBS checks that an employer can do:

  • Basic - check for unspent convictions
  • Standard - check for spent and unspent convictions, cautions, reprimands and final warnings
  • Enhanced - standard check plus any additional, relevant information held by local police

Under the Rehabilitation of Offenders Act 1974, criminal convictions and cautions that become ‘spent’ do not have to be disclosed unless they fall within the exceptions set out in the Rehabilitation of Offenders Act (Exceptions) Order 1975.   The amount of time for rehabilitation is dependent on the sentence imposed, not on the offence. Once the rehabilitation period is completed it means the caution or conviction has become spent.

In January 2013, the Court of Appeal ruled that the Police Act 1997 and the Rehabilitation of Offenders Act Exceptions Order 1975 (the Exceptions Order) were incompatible with a person’s right to have a private life under Article 8 of the Human Rights Act 1998.

In response to the Court of Appeal’s judgement in 2013, the Government introduced “filtering”, which means that not all spent cautions and convictions will be disclosed on the DBS certificate. For adults these included cautions that were received at least six years ago and adult convictions that are over eleven years old. There is however a list of offences that the filtering rules do not apply to, and if you have more than one conviction, none of the convictions can be filtered and will always appear on the DBS check, regardless of their severity.

In an application by Lorraine Gallagher for Judicial Review of the statutory rules under which disclosure of their records were require, the Supreme Court held the rule requiring disclosure of multiple convictions was disproportionate and incompatible with Article 8 of the Human Rights Act 1998 in that it did not distinguish between the nature of any offences, the number of convictions or cautions, or the length of time that may have passed.

Full judgement can be found here: https://www.supremecourt.uk/cases/docs/uksc-2016-0195-judgment.pdf

In the year since the Supreme Court ruling, no changes to the Rehabilitation of Offenders Act 1974 have been implemented by the Government. We agree with Sam Grant, the policy and campaigns manager at Liberty, who said: “It is a disgrace that after years of failed wrangling in the courts, the government continues to drag its feet and refuses to fix a clearly broken system. A blunt bureaucratic system continues to subject people to unfair treatment for mistakes they made long ago. If you make a few mistakes, you should be able to move on without it tarnishing you for the rest of your life.”

We have a renowned criminal law department, which frequently challenges cautions and DBS decisions and if you think we might be able to help you, please contact our team Steve Garratt, Amber Richardson or James Saunders on Amber.Richardson@saunders.co.uk

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    We have partnered with Law Share from JMW Solicitors LLP to refer instructions and clients to them, when we are unable to act. By answering yes to this question, you agree that we may pass your details on to Law Share in such circumstances. You are under no obligation to instruct JMW Solicitors LLP after being referred. We may receive a payment from JMW Solicitors LLP further to this referral.