If you plan to work in any role that that undertakes a regulated activity, namely working with children or vulnerable adults, then you will need an enhanced Disclosure and Barring Service (DBS) certificate. For information on what amounts to regulated activity with children, please visit here: Regulated Activity with Children.
All unfiltered records will automatically be disclosed on an enhanced DBS certificate. Broadly speaking this includes the following records:
- cautions relating to an offence from a list agreed by Parliament – namely offences on the prescribed list such as ABH, child cruelty, sexual assault etc. if you receive a police caution for a proscribed list offence it will always be disclosed and will never become “protected”.
- Adult cautions given less than 6 years ago (unless they are proscribed list offences as above and will always be disclosed)
- Youth cautions given less than 2 years ago (unless they are proscribed list offences as above and will always be disclosed) N.B. 2019 edit, Disclosure with respect to youth reprimands/warnings/cautions are subject to revision by the government.
- 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”.
- convictions relating to an offence from the prescribed list
- where the individual has more than one conviction all convictions will be included on the certificate, namely no conviction will be filtered. (NB: 2019 edit this rule is subject to revision by the government)
- convictions that resulted in a custodial sentence (regardless of whether served – namely a suspended sentence of imprisonment would be caught by this rule)
- convictions which did not result in a custodial sentence, given less than 11 years ago (where someone is 18 or over at the time of the conviction)
- convictions which did not result in a custodial sentence, given less than 5.5 years ago (where someone is under 18 at the time of the conviction)
The Police and Enhanced DBS Certificates
In addition to the above, before an enhanced certificate is issued the police will be asked to provide any information that a chief officer reasonably believes to be relevant and in the chief officer’s opinion ought to be included in a certificate.
The police therefore need to made a decision, before your enhanced DBS certificate is issued, whether there is relevant information that ought to be disclosed to the DBS.
Previously the police would simply disclose information, and the DBS (formerly the CRB) would issue the certificate, and there would often be no opportunity to dispute any disclosure of information.
Since 2013 the DBS have instituted a process whereby an enhanced DBS certificate is provided first to the applicant so that a dispute can be raised in respect of any information that is proposed to be disclosed.
Also, before a police force discloses information to the DBS, often (although not always, and it is not mandatory) the police will contact an applicant for representations in respect of information they propose to disclose to the DBS.
If the police write to an applicant indicating an intention to disclose information to the Disclosure and Barring Service, an applicant can then choose to withdraw their enhanced DBS certificate application, so the DBS do not receive the information. Alternatively, the applicant can write to the police to challenge the proposed disclosure.
The advantage of withdrawing an enhanced DBS certificate application at this stage is that it may advert the possibility that the DBS will commence barring proceedings.
If an applicant disputes the disclosure by the police, it is possible that the police force may then disclose information to the DBS without communicating the outcome of the appeal to the applicant – although often police forces will agree to give an applicant the opportunity of withdrawing an enhanced DBS certificate application in the event of an adverse decision.
The police’s disclosure to the DBS has to be proportionate, reasonable and necessary, and will always depend on the facts of a particular case. Unproven applications can, and indeed often are, disclosed on enhanced DBS checks. The strength of the evidence, your defence, the age of the allegation and the seriousness, are all factors that will be taken into consideration before disclosing information to the DBS.
If the police feel that there is no doubt and that it is reasonable to disclose the information to the DBS, then they will not give you an opportunity to make representations. This is of course open to dispute as the information they disclose may turn out to be overstated, false or inaccurate.
DSB Enhanced Certificate Appeals
If the police do disclose information to the DBS, before your enhanced DBS certificate is issued to your employer, then you will be given an opportunity to dispute this disclosure. Your employer may however receive a notification that there is an issue with your certificate, but will not be notified what it is.
You will then have an opportunity to make representations about the certificate. Mistakes in the record or personal information can be investigated by the DBS – namely if you dispute that the information relates to you, or if there are factual errors.
If however you do not dispute the facts, but you dispute the relevancy and fairness of the disclosure on your enhanced DBS certificate , then your appeal will be sent to the “Independent Monitor” for review.
The Independent monitor is supposed to give an independent review of a disclosure decision on an enhanced DBS certificate.
If the review determines that the information ought to be disclosed, and an applicant wants to challenge this decision, then they have the opportunity of issuing judicial review proceedings before the administrative court. Judicial review proceedings are civil proceedings and there are strict deadlines and procedures that need to be followed when appealing.
Enhanced DBS Certificate Appeals Solicitor
If you have received a DBS certificate and you wish to dispute the information on the certificate then please get in touch.
We have extensive experience of appealing DBS certificates and making representations for the removal of information. Often the police and DBS take a “catch all” approach to disclosure on certificates that can produce unfair results.
The DSB and the police are cautious to disclose information on enhanced DBS certificate in case they are accused of permitting someone to work in a regulated environment who then goes on to do harm. An overly cautious approach however has been ruled to be unfair and necessary by the courts – namely just because allegations have been made, it does not mean information, than can be ruinous to a career, should be disclosed.
We understand the significant impact an allegation can have and we work hard to ensure unfair information is removed from our clients’ Enhanced DBS certificates.
Please get in touch to discuss your DBS case today.
Arrest Record, Police Caution Removal and Barred List Appeals Solicitors
Alomnhg with appealing enhanced DBS certificates, we also have extensive experience of applying for the deletion of arrest records and police cautions.
In additional we are often instructed to challenging intentions to place people on the children and/or adult DBS barred lists or challenge DBS barred list decisions that are already in place.