We get many questions about DBS checks. The most common question is, can you appeal a DBS check? The short answer here is that you can dispute information disclosed on a Disclosure and Barring Service (DBS) certificate. However, the issue will be whether the DBS made a mistake and what type of certificate you are applying for.

In this article, we’ll cover everything you need to know about DBS checks, including what they are and current disclosure rules. We’ll also answer general FAQs from job hunters and employers about the topic.

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

To get started, let’s review the different types of DBS checks.

There are three types of DBS checks: Basic, Standard, and Enhanced (and also the subcategory of the Enhanced check—Enhanced with barred list checks). In this section, we’ll review their rules and examine the circumstances when information may be disclosed and how it might be challenged.

Let’s begin with the lowest level of check, the Basic DBS check.

A Basic DBS check can be requested 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 before 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 must also have an “appropriate policy document” if processing criminal records.

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

This Rehabilitation of Offenders Act is often 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 have some of Europe’s most restrictive criminal record rehabilitation laws.

A Standard DBS Check is a criminal record check in the UK that reveals spent and unspent convictions, cautions, reprimands, and final warnings. It’s typically required for roles involving contact with children and vulnerable adults but does not include a check of the barred lists.

An Enhanced DBS Check is the highest level of criminal record check in the UK. It includes all the details of a Standard DBS Check plus any additional information held by local police that’s considered relevant to the role. It’s essential for positions involving greater contact with children or vulnerable adults.

How long does it take for a conviction to be spent? The 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 a youth. If a conviction is not spent, it will be revealed on a Basic DBS check and must be disclosed.

Please note: The disclosure rules for basic DBS checks are subject to periodic review and may change after posting this article. The government’s current policy is disclosed here: Disclosure on Basic DBS Checks.

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

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

Generally, adult police cautions will become protected after six years, and youth cautions immediately.

There is also a specified list of offences maintained by the DBS whereby if a caution is obtained for one of these offences, that caution or conviction will never become protected. The specified list contains the most serious offences, which 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 relatively minor facts but still devastate a career in a regulated sector.

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

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 specified offences, they will not be automatically disclosed on an enhanced and standard DBS check. It should be noted, however it is still possible for facts related to youth cautions, warnings, or reprimands to be disclosed on an enhanced DBS certificate if the police feel the information is “relevant”.

Navigating the complexities of DBS checks can be confusing. This section answers frequently asked questions about Disclosure and Barring Service checks, helping you understand the different types, what they reveal, and how they impact employment and volunteering roles. Whether you’re an employer or an applicant, get the clarity you need here.

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 impacts your career opportunities as the law does not permit the DBS to exercise discretion. If a record is not spent, it will be disclosed on a Basic DBS check and revealed to an employer.

However, the certificate can be disputed if a Basic DBS check contains errors. At the simplest level, if a certificate contains incorrect personal details, such as the date of birth, the DBS will amend the certificate.

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

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

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

The rules related to Standard and Enhanced background checks changed in 2013 following 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 the 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 concept is commonly misunderstood and confused with 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, save in some circumstances. Once they are protected, they will be filtered from a standard and enhanced DBS check (save where they might be disclosed as “relevant information” on an enhanced check below).

The same filtering rules that apply to standard certificates also apply to enhanced DBS certificates, but the police can also disclose “relevant information.” This information does not necessarily need to relate to criminal records, but it typically does. Relevant information extends beyond 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 to the DBS directly, then to the Independent Monitor, and finally to the 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, and the other related to vulnerable adults. Individuals can be placed on one or both lists. A barred list check will be requested if someone has been barred, which will appear on the Enhanced Certificate.

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

ACRO issues a police certificate and is a 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?

This section addresses employers’ common questions about DBS checks, including how to handle appeals and what the certificates mean for hiring processes. Gain insights into navigating the DBS system effectively to ensure compliance and make informed decisions about potential hires.

As an employer, you can not ask a prospective employee about spent convictions (unless an exemption applies, in which case 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:

Do you have any offences which are currently unspent under the Rehabilitation of Offenders Act 1974 [You do not need to disclose anything that is deemed ‘spent’]

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

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 that they are not entitled 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 and 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 of a recording error, such as with a basic check. A fairly common problem with standard/enhanced DBS checks is the disclosure of protected conditional cautions – they 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 must be careful when asking prospective employees about criminal records where a standard or enhanced DBS check is required. The recommended formulation of words is:

Do you have any convictions, cautions, reprimands or final warnings that are not “protected” as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)

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

In the past, some employers required prospective employees to make a subject access request (otherwise known as a “right of access” request) under the Data Protection Act 1998 (now the 2018 Act).

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

If a mistake has been made in disclosing 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 whether the delay will result in losing an employment opportunity. If a job has been lost due to a mistake and delay, 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 because the disclosure is neither reasonable nor proportionate.

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 on a standard and enhanced DBS certificate.

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.

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”. 

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 test

Para 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.
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.

Paras 68/69 of Judgement

 

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.