What shows up on an enhanced DBS check is subject to detailed procedural rules.
There are certain categories of police disposals and convictions that will automatically be disclosed, for details of these categories please see here. (NB: these rules are currently being reviewed subsequent to a 2019 Supreme Court ruling).
Along with disclosing information according to defined categories, an Enhanced DBS Certificate can also include information on the basis of the police’s opinion as to its relevance, and whether it ought to be included on a certificate.
Before an enhanced DBS certificate can be issued, it must also be show that questions being asked about a person’s criminal record are for a “prescribed purpose”. Prescribed purposes are broadly speaking working with children and vulnerable adults, as well as other specific areas such as becoming a Commissioner for the Gambling Commission, or holding a license to produce controlled drugs under Regulation 5 of the Misuse of Drugs Regulations.
Disclosure of Relevant Information on an Enhanced DBS Certificate
The issue as to what information might be relevant to be disclosed on an enhanced DBS certificate came under renewed scrutiny by the Supreme Court in 2018.
The appellant in the case had been acquitted of rape, he was a qualified teacher, but was working at the time as a taxi driver. It had been alleged that he had raped a 17-year-old woman, who was a passenger in a taxi driven by him. His defence was that there had never been sexual contact with the alleged victim.
Following his acquittal, he applied for an enhanced DBS certificate in connection with an application for a job as a lecturer. The rape allegation and prosecution was disclosed on his enhanced DBS check as being relevant information to his job application.
The appellant appealed the disclosure of his rape acquittal – the appellant argued that his acquittal had proved his innocence:
It is wrong, unfair and grossly prejudicial [that] I should have to defend myself every time I apply for employment after the jury have ruled I am an innocent man.(Para 9 of Judgement)
On appeal the police stated that they did not feel that his acquittal had amounted to proving his innocence, but only showed that the allegation could not be proven beyond a reasonable doubt:
Although the applicant was found not guilty by the jury, the test for criminal conviction is beyond all reasonable doubt, which is higher than that required for CRB disclosure purposes. Therefore the applicant’s acquittal does not prove that he was innocent, or even that the jury thought he was innocent, just that he could not be proved guilty beyond all reasonable doubt …Para 12 of Judgement
The police concluded that they felt that the test for disclosure of relevant information was that it needed to be more likely to be true than not, which is effectively the civil standard of proof:
the legislation and guidance is clear that allegations that might not be true can be disclosed… I believe that the information is more likely to be true than false and is not lacking in substance, and it is reasonable to believe that the information might be true, and therefore it passes the required testPara 12 of Judgement
After deciding that the acquittal was relevant information, the police also concluded that it was reasonable and proportionate to disclose it.
On appeal to the Supreme Court it was contested that it was a breach of the appellant’s right to a private life for his acquittal to be disclosed on his enhanced DBS check.
The Court did not agree with the appellant and stated that it was lawful to disclose non-conviction information. The Court stated that the police did not need to undertake a detailed assessment of evidence to the civil standard of proof. The court indicated that where there was evidence that tended to confirm innocence, then it might be inappropriate to disclose. The Court stated as follows:
68. While I do not question the actual decision in that case, I cannot accept that, as a matter of domestic law or under article 8 , it is necessary or appropriate for those responsible for an ECRC to conduct a “detailed analysis” of the evidence at the trial, such as envisaged by Coulson J. That is the task of the judge and jury, who have the advantage of seeing and hearing the witnesses. Whether or not it would be compatible with article 6.2 for the chief officer to express a view on the merits of the case following an acquittal, it is not the proper function of an officer to attempt to replicate the role of the court, or (in Ms Richards’ words) to conduct a “mini-trial”. Nor can that be read into the language of the statute. His task under section 113B is to identify and disclose relevant “information”, not to make a separate assessment of the evidence at trial. As Mr Moffett’s examples show (para 52 above), additional information may in some cases be available about the circumstances of the acquittal, including possibly the court’s own statements about it, which may give reasons for treating the court’s disposal as less than decisive. By contrast in the case considered by Wyn Williams J (para 36 above) the available information should have been taken as a positive indication of innocence. However, in the absence of information of that kind, it is not the officers’ job to fill the gap. To the extent that Ms Wilson in the present case saw it as part of her task to assess whether, in the light of the evidence at trial, the allegation was “more likely to be true than false”, she was in error.Paras 68/69 of Judgement
69. The judge did not make the same error. He went no further than to accept, as he was entitled to do, the Chief Constable’s view that the information was “not lacking substance” and that the allegations “might be true”. However, that in itself did not mean that disclosure was disproportionate. It was a matter for him to assess whether the information, albeit in the limited form contained in the ECRC, was of sufficient weight in the article 8 balance.
In a postscript to the case the Court confirmed that non-conviction information could be disclosed on an enhanced DBS checks, including acquittals:
74 Given that Parliament has clearly authorised the inclusion in ECRCs of “soft” information, including disputed allegations, there may be no logical reason to exclude information about serious allegations of criminal conduct, merely because a prosecution has not been pursued or has failed. In principle, even acquittal by a criminal court following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.Para 74 of Judgement
The Court did however also indicate that there was a lack of guidance for employers as to how to deal with, and interpret, acquittals disclosed on Enhanced DBS checks. As a result of this indication new guidelines for employers may be drawn up.
DBS Defence Solicitors
If you have received an enhanced DBS certificate and it has disclosed information that you dispute or that you feel is unfair, please get in touch.
We have significant experience in challenging enhanced DBS checks and also barring appeals.
Unfortunately we do not offer legal aid, but can usually offer reasonable fixed fees.
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