Will my NFA be disclosed to my employer?
An Enhanced DBS check is suitable for people working with children or adults in certain circumstances such as those in receipt of healthcare or personal care. An Enhanced DBS check is also suitable for a small number of other roles such as taxi licence applications or people working in the Gambling Commission.
An Enhanced Disclosure and Barring Service (EDBS) check can include Convictions, Cautions, Warnings and Reprimands (all of which are, usually, disclosed automatically, as per the legislation, after old & minor records have been filtered and removed). An Enhanced Certificate can go further than that and the courts have considered just what the authors intended by those words and concluded that ‘any information‘ means ‘any‘, just as the legislation states. This includes, but is not limited to:
- incidents for which individuals were never arrested, charged or prosecuted
- incidents for which individuals were found “Not Guilty‟ in a court of law (in certain circumstances)
- incidents which were dealt with other bodies other than the police (such as Local Authorities in their disciplinary processes; employers; schools; hospitals etc.)
- third party information - information about people other than the applicant
In October 2009, the Supreme Court considered the impact that the release of information could have on an applicant and their private life. Judgments from later cases added to the Supreme Court’s judgment and led to the creation of guidance that police should take into account before making a final disclosure decision.
The Courts ruled that unless the facts are both clear and are known not to be in dispute (i.e. the individual has not challenged the truth or accuracy of the information), police should offer those concerned the opportunity to make their case (to make representations) against the proposed disclosure.
If you have been No Further Actioned the police will need to consider whether to include this information on your Enhanced DBS check. There is no mandatory right to be given the opportunity to make representations and the following are examples of when representations will not be offered:
▪ Where the information is background detail to a PNC conviction
▪ Notice of an Impending Prosecution (for a relevant offence)
▪ Repeat of information disclosed previously, where previous representations did not satisfy police that disclosure should not be made
▪ Where the facts of the matter are clear and are not in dispute
If you have been contacted by the police to make representations, please contact our Crime and Regulatory team to discuss how we can assist.