Copyright Nacro 2014 NHS Employers Webinar 29 th October 2014

In Jan 2013, as a result of a legal challenge, the Court of Appeal ruled: the Police Act 1997 and the Rehabilitation of Offenders Act Exceptions Order 1975 (the Exceptions Order) were incompatible with a person s right to protect their private life under Article 8 of the European Convention on Human Rights. Many individuals were routinely being refused access to employment, education and other opportunities as a result of minor offences being disclosed on Standard or Enhanced DBS certificates. Lord Reed pointed to: a lack of rational connection between dishonesty as a child and the question of whether, as an adult, the person might pose a threat to the safety of the children with whom he comes into contact.

Since 29 May 2013, changes made to legislation as a result of this judgement, allowed for certain minor offences to be removed (or filtered ) from standard or enhanced certificates. At present, these changes are only applicable in England, Wales and Northern Ireland (When applying for DBS checks or Access NI checks). Offences that are eligible to be filtered no longer need to be disclosed by the applicant for jobs that require standard or enhanced certificates. It is unlawful for an employer to take into account a caution or conviction that is protected (filtered) when making a decision to employ a person (or dismiss an existing employee).

Some employers are entitled to ask applicants to disclose both 'spent' and unspent' convictions, cautions, reprimands and final warnings subject to legal provisions (see filtering rules). DBS eligibility list can be found online. Broadly speaking, these roles, positions and activities include: - Working in regulated activity with children or adults - Certain regulated professions (e.g. health, law, finance) - Professions that require certain licences (e.g. Taxi, PCO, SIA) DBS Eligibility decision tree will help provide clearer answers and reduce disputes about eligibility between the organisation and applicant once it is launched. Applicants for exempt roles, positions or activities may lawfully be required by the employer, course provider or professional body to apply for a Standard or Enhanced DBS certificate.

An adult conviction will be removed from a DBS certificate only if: i. 11 years have elapsed since the date of conviction ii. It is the person s only conviction iii. Conviction did not result in a custodial sentence iv. Conviction does not appear on the list of specified offences An adult caution will be removed from a DBS certificate only if: i. 6 years have elapsed since the date of the caution ii. it does not appear on the list of specified offences There is no limit to amount of cautions that can be filtered

A conviction received when aged under 18 would removed from DBS certificate only if: i. 5½ years have elapsed since the date of conviction ii. It is the person s only conviction iii. Conviction did not result in a custodial sentence iv. Conviction does not appear on the list of specified offences A youth caution (formerly reprimands or final warnings) will be removed from a DBS certificate only if: i. 2 years have elapsed since the date of the caution ii. it does not appear on the list of specified offences There is no limit to the amount of youth cautions, reprimands or final warnings that can be filtered

The following sentences are classified as custodial sentences and therefore exempt from filtering Suspended custodial sentences Detention in Youth Offenders Institution (YOI) Service Detention (military conviction) Public Protection sentences Detention and Training Orders, Secure Training Centres The following sentence is NOT classified as a custodial sentence and would qualify for filtering if all other provisions apply: Hospital Order (with or without restriction)

For roles requiring DBS checks it is the responsibility of employers to update their recruitment application forms and online portals to ensure that: I. They ask the correct criminal record declaration question in line with the legal requirements. II. The question is not framed in a way which leads to an applicant inadvertently disclosing a caution or conviction that would be filtered off a DBS check. 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)?

It is unlawful to carry out a standard or Enhanced DBS check on a person is the role is not eligible. Instead carry out a Basic Disclosure which are provided by Disclosure Scotland. Applicants are not legally required to disclose fixed penalty notices (FPN s), penalty notices for disorder (PND s) or other disposals that are not convictions, cautions, reprimands or final warnings. Applicants are not legally required to disclose allegations, arrests or not guilty verdicts. Filtering is a complex process: therefore, applicants should be signposted to Nacro Practical guidance on DBS filtering

The following common offences would qualify for filtering (subject to all Theft other and provisions Fraud offences applying): (which do not involve violence) Common Assault, Battery Assault on a police constable Possession of Class A, B or C drugs Possession of offensive weapon in a public place Harassment Criminal damage The following common offences would NOT qualify for filtering: Assault occasioning -Actual bodily harm Affray Supply of Class A, B or C drugs Solicitation (of a man or woman)

Joe is aged 30 and applying for a role as a doctor in an NHS Trust. At age 17: he received a reprimand for possession of Class B drugs (cannabis). At aged 18: he received a 100 fine for one count (conviction) for assault (recorded as battery). At aged 22: he received a 80 fixed penalty notice for shoplifting. Joe would not need to disclose any of these offences at the time of applying for the role as a doctor when he is aged 30.

Mark is aged 35 and applying for a role as a healthcare assistant At aged 17: he received a final warning for affray. At age 21: he received a two-year conditional discharge order for one count (conviction) of fraud by misrepresentation. At aged 25: he received a caution for possession of Class B drugs (cannabis). Mark would always need to disclose the final warning for affray, but he would not need to disclose the other offences at the time of applying for the role of healthcare assistant at age 35.

Sandra is aged 45 and applying for a role as a nurse in an NHS Trust. At age 13: she received a reprimand for actual bodily harm (the incident involved her scratching another student who was bullying her. At aged 16: she received a six month conditional discharge order for two counts (convictions) of shoplifting in a single court appearance (the incident involved her stealing a lipstick and a pair of earrings Sandra would always need to disclose all of these offences even at the time applying for the role as a nurse at age 45 as they would never qualify for filtering.

Can a protected caution or conviction be disclosed as police intelligence on enhanced DBS certificates? Absolutely a chief officer may include details relating to an otherwise filtered conviction, caution, reprimand, final warning on an enhanced DBS if s/he considers, having regard to all the circumstances, that the filtered disposal is relevant and that it ought to be disclosed. A filtered disposal may also continue to be considered by the DBS for the purposes of making a barring decision. The Police can also disclose relevant matters such as FPNs or PND through common law powers or the notifiable occupations scheme.

Discourage Criminal record the few checks individuals are only that a wish small to harm part of to vulnerable the recruitment people from process being in a position to do so. They are a necessary tool to aid employers in their formal assessment of an applicant s risk and suitability for the role. They can also discourage some individuals that wish to harm to vulnerable people from being in a position to do so. However.. It is important to have a robust safe recruitment policy in place, and use all of the available information including other preemployment checks and references when making an informed recruitment decision whether or not to hire.

Free advice and operational support for organisations Nacro Resettlement Advice Service (RAS) Employer advice line: 0845 600 3194 (local rates apply) Email: employeradvice@nacro.org.uk Website: www.nacro.org.uk - RAS advice pages Address: First Floor, 46 Loman St, London, SE1 0EH Follow us on LinkedIn or Twitter: @Nacro_ We also offer training and consultancy services on: safer recruitment, carrying out risk assessments, employing people with criminal records, DBS and other employment vetting checks, understanding criminal record information, and understanding disclosure legislation

Dominic Headley, Legal Officer Tel: 0845 600 3194 Mobile: 07713 394 781 Email: dominic.headley@nacro.org.uk LinkedIn: https://www.linkedin.com/pub/dominicheadley/a0/936/a24 Twitter: @Nacro_