Can you appeal a DBS check?

The short answer to this questions is that you can dispute information disclosed on a Disclosure and Barring Service (DBS) certificate. The issue will be whether the DBS have made a mistake or not, and what type of certificate you are applying for.

We will have a look through the rules that relate to each level of DBS check: Basic, Standard, and Enhanced (and also the subcategory of the Enhanced check – Enhanced with barred list checks). We will also look at the circumstances when information may be disclosed, and how it might be challenged.

We will start off with the lowest level of check, the Basic DBS check.

Please note that this article relates to background checks in England and Wales, different rules apply in Northern Ireland and Scotland.

A Basic DBS check can be asked for any job role or purpose. There is no real limitation on who can ask for one per se, but an employer must consider the Data Protection Act 2018 prior to requesting one; there must be a lawful basis for processing and the employer must be able to meet a condition for processing under the Act. An employer will also need to have an “appropriate policy document” if they are processing any criminal records.

Not all conviction records will show up on a Basic DBS check. After certain periods of time a conviction will become “spent” for the purposes of a Basic check. The period of time that must elapse before a record becomes “spent” is determined by the Rehabilitation of Offenders Act 1974.

This Rehabilitation of Offenders Act is often being amended and updated, reflecting current thinking on rehabilitation periods. The general impetus has been to reduce rehabilitation periods to enable people to move on from past criminal records. Despite this, England and Wales still has some of the most restrictive criminal record rehabilitation laws in Europe.

The length of time that must elapse before a conviction or caution becomes spent depends on the period or type of punishment, and whether someone was an adult or youth at the time. If a conviction is not spent it will be revealed on a Basic DBS check and it will need to be disclosed.

If an adult has received a prison sentence of less than 6 months, then the conviction will become spent after two years.

For a prison sentence of between 6 to 30 months, a conviction will be spent after 4 years have elapsed.

A conviction will, if it resulted in a sentence of between 30 months to 4 years, become spent after 7 years.

Convictions will never become spent if the sentence was over 4 years imprisonment.

A term of imprisonment includes a suspended prison sentence, but not time spent on remand where someone was found not guilty.

A community order will become spent after 1 year from the end of the sentence period. A conditional discharge and bind over will become spent at the end of the order.

A fine will become spent after 1 year from the date of conviction and an absolute discharge will become spent immediately.

A police caution will become spent immediately, except for a conditional caution which will become spent after 3 months if the conditions last 3 months or more, or on the date the conditions end if the conditions last less than 3 months.

The disclosure rules for basic DBS checks are subject to periodic review and so may change after  this article is posted. See here for the government’s current policy: Disclosure on Basic DBS Checks.

Youth rehabilitation periods are shorter than adult rehabilitation periods. A youth sentence is where someone is sentenced when they were under 18 years of age at the time.

If someone receives a sentence of less than 6 months when a youth, then the conviction will become spent after 18 months.

If the sentence was between 6 to 30 months, the conviction will be spent after 2 years have elapsed.

A youth conviction will, if it resulted in a sentence of between 30 months to 4 years, become spent after 3.5 years.

If the sentence was over 4 years imprisonment/detention, it will never become spent.

A youth community order will become spent after 6 months from the end of the sentence period. A conditional discharge and bind over will become spent at the end of the order.

A fine will become spent after 1 year from the date of conviction and an absolute discharge will become spent immediately.

A caution will become spent immediately, except for a conditional caution which will become spent after 3 months if the conditions last 3 months or more, or on the date the conditions end if the conditions last less than 3 months.

The disclosure rules for basic DBS checks are subject to periodic review and so may change after  this article is posted. See here for the government’s current policy: Disclosure on Basic DBS Checks.

NB: November 2020 edit: Youth cautions, warnings and reprimands are immediately  “protected” subsequent to changes implemented by the government. This means that even for offences that appear on the DBS list of unfilterable offences, they will not be automatically be disclosed on an enhanced and standard DBS check. It should be noted however despite the changes, it is still possible for facts related to youth cautions, warnings or reprimands to still be disclosed on an enhanced DBS certificate if the police feel the information is “relevant”.

If the information on a Basic DBS certificate is accurate and relates to the correct person, then there will be no basis for dispute. It will not be possible to argue that the disclosure is impacting your career opportunities as the law does not permit the DBS to exercise any discretion – if a record is not spent then it will be disclosed on a Basic DBS check, and will be revealed to an employer.

If however there are errors in a Basic DBS check, then it will be possible to dispute the certificate. At the simplest level, if someone’s personal details are incorrect on a certificate, such as the date of birth, the DBS will amend the certificate.

If incorrect details about a conviction are on a certificate, such as the date when someone was convicted, then a dispute can be raised. Where an incorrect date has been recorded for a conviction, this may mean that a record continues be disclosed, when it should in fact not be disclosed due to it being spent.

Also from time to time the DBS disclose information where the records do not relate to a person at all, this might happen because a person’s name and details are very similar to someone else.

Where errors have arisen, which has resulted in delay directly causing someone to lose a job opportunity, then damages may be sought against the DBS.

As an employer, you can not ask a prospective employee about spent convictions (unless an exemption applies and you can ask for either a standard or enhanced DBS check).

The best formulation of words to use when recruiting someone where you can only ask for a Basic DBS check is the following:

You could simply ask “Do you have any unspent convictions? Yes/No” – however the previous question is more accurate and avoids any ambiguities.

The rules related to Standard and Enhanced background checks changed in 2013 following on from the successful Court of Appeal case of R (T and others) v Chief Constable of Greater Manchester and others [2013] EWCA Civ 25. The DBS had been formed the year prior to teh case with the merger of the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA).

The new rules created a system of “filtering” and “protected” cautions and convictions. This is a concept that is commonly misunderstood, and is confused with the concept of convictions being “spent”. Convictions/cautions are spent as detailed above, but filtering only applies to standard and enhanced DBS certificates.

Convictions and cautions become “protected” after certain periods of time, save in some circumstances. Once they are protected they will become filtered from a standard and enhanced DBS check (save where they might be disclosed as “relevant information” on an enhanced check – more on this below).

Generally adult police cautions will become protected after 6 years and youth cautions after 2 years.

Adult convictions where there was no custodial sentence become protected after 11 years, youth convictions where there was no custodial sentence become protected after 5.5 years.

Where someone has more than one conviction, and/or has received a prison sentence (including suspended sentences) all convictions will be disclosed and nothing will be protected.

There is also a proscribed list of offences maintained by the DBS whereby if a caution or conviction is obtained for one of these offences, that caution or conviction will never become protected. The proscribed list contains the most serious offences, and are typically violent/sexual offences – but the list does notably contain Actual Bodily Harm (ABH) and Section 1, child neglect/cruelty. Both offences can sometimes relate to facts that are relatively minor, but still be devastating to a career in a regulated sector.

As these rules have sometimes worked harsh outcomes, an appeal was recently heard before the Supreme Court. The Court ruled in favour of certain amendments to the two conviction rule, and the proscribed list rule in relation to youths. Changes with respect to these rules, and perhaps others, are anticipated towards the end of the year (Brexit/election pending); for details about the case please see this summary here: What is the impact of the 2019 Supreme Court criminal records decision?

Not all employers are entitled to ask for a standard DBS check and it is unlawful for an employer to ask for an employee, or prospective employee, to obtain a standard DBS check where they are not entitle to. The DBS publishes an eligibility guide on whether a job requires a standard DBS check. Common roles where a standard check will be required are when applying to be an approved person/manager in financial services, when enrolling to become a qualified solicitor, barrister, legal executive, chartered or certified accountant, vet, actuary, or registered foreign lawyer.

If information is incorrectly disclosed on a Standard DBS certificate, this will typically be because there has been a recording error, such as with a basic check. A fairly common problem at the moment with standard/enhanced DBS checks is the disclosure of protected conditional cautions – conditional cautions are sometimes incorrectly registered on the Police National Computer (PNC) as convictions and so have continued to be disclosed in circumstances where they should have been filtered.

Employers need to be careful when asking prospective employees about criminal records where a standard or enhanced DBS check is required. The recommended formulation of words is:

Even for individuals that might have a number of police cautions, they do not need to disclose anything on an employment application form if they are protected. They may however be disclosed as “relevant information” on an enhanced DBS check depending on the facts.

The same filtering rules that apply to standard certificates also apply to enhanced DBS certificates but in addition the police can also disclose “relevant information”. This information does not need necessarily to relate to criminal records, but typically does. Relevant information extends further than protected convictions and cautions, and may relate to arrest/investigation records where no charges were filed, acquittals or collapsed trials. It is also possible for a partner’s/spouse’s criminal record to be disclosed on a certificate.

If information is disclosed on an Enhanced DBS certificate, this can be appealed with the DBS directly, then to the Independent Monitor, then finally Judicial Review.

For a further overview of the rules related to Enhanced DBS Certificates, please visit here: What Shows up on an Enhanced DBS check?

In addition to the Enhanced DBS check there is also an Enhanced DBS check with Barred list checks. There are two barred lists, one where people can not undertake regulated work with children, the other is related to vulnerable adults. Individuals can be placed on one or both lists. If someone has been barred, if a barred list check is requested, this will show up on the Enhanced Certificate.

In practice if a simple Enhanced DBS check is applied for, namley without a barred list check, the DBS will monitor if that person is on the barred list as it is a criminal offence under Section 7 of the Safeguarding Vulnerable Groups Act 2006 to apply for regulated role whilst barred. If someone does apply for an Enhanced DBS check whilst barred, they will almost certainly be referred to the police for investigation.

Some employers have in the past required prospective employees to undertake a subject access request (otherwise know as a “right of access” request) under the Data Protection Act 1998 (now 2018 Act).

It is a criminal offence, know as “Enforced Subject Access”, under Section 184 of the Data Protection Act 2018 to require an employee to provide an employer with their police subject access records.

A police certificate is issued by ACRO and is criminal record background check used in relation to Visa applications. For further details about police certificates, please visit here: What is an ACRO Police Certificate?

If a mistake has been made in the disclosure of information on a Basic or Standard DBS certificate, this can be challenged, and the DBS will rectify the situation – often the issue will be how long the rectification will take, and will the delay result in the loss of an employment opportunity. If a job has been lost as the result of a mistake and delay, then the DBS may be liable for damages.

Where information has been disclosed on an enhanced DBS check as relevant information, this will likely not be a mistake on the DBS’ part, but may be open to a challenge on the basis that the disclosure is neither reasonable nor proportionate.