DBS Filtering Process

DBS Filtering Process Information Hub Contents Introduction... 1 How will the filtering process work?... 3 What will be filtered? Cautions... 4 What will be filtered? Convictions... 4 Offences not covered by filtering Specified offences... 6 Frequently asked questions about specific disposals... 8 General frequently asked questions... 11 Examples... 14 Questions/guidance... 14 Introduction About this guide This information aims to explain the filtering process that the Government has recently introduced, which started on the 29 th May 2013. Please note: This guidance has been produced using the information that we have available to us at the time at publishing. We expect to regularly update this guide as more information is available to us on how the process is working in practice. Background Until now, employers who are entitled to carry out standard or enhanced level checks have received the details of all convictions and cautions that are held on the Police National Computer (PNC). In recent years, there has been growing pressure on the Government to change the way that they disclose information to employers from the PNC. Earlier this year, this culminated in a court case (known as T ), which found that the automatic disclosure of all convictions and cautions was disproportionate, and therefore incompatible with the right to private life under article 8 of the Human Rights Act. 1 of 15 www.unlock.org.uk

What s happened recently? In response to the Court of Appeal ruling in January, the Government has brought in changes to the way that the system works. These arrangements are set out in The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 ( the Order ). The rest of this information will hopefully shed some more light on how this Order will work in practice. What is meant by filtering? Filtering is the term that the DBS is using to describe the process which will identify and remove from disclosure certificate convictions and cautions which should no longer be disclosed due to changes to legislation. It doesn t mean the conviction or cautions will be removed or wiped. They will remain on the PNC. When did it start? Changes have been made to the legislation that determines which convictions and cautions can be taken into account by employers and other bodies and what is included on a DBS certificate. These have been implemented as a result of a judgment of the Court of Appeal. These changes came into force on 29 th May 2013. Guidance from the DBS The Disclosure & Barring Service has published their own guidance on the filtering process. Links to these are below (although the links might change in the future): DBS filtering guidance Filtering rules for criminal record check certificates DBS list of offences that will never be filtered from a criminal record check 2 of 15 www.unlock.org.uk

How will the filtering process work? The system can effectively be split into two; a system for cautions, and a system for convictions. For both systems, there is a list of exempt offences this means that any caution or conviction for an offence on this list will not be filtered. General summary The rules only apply to standard and enhanced level DBS checks. They do not apply to other forms of employment vetting, or other types of disclosures (such as Police Certificates) The rules apply to England and Wales only. o If you apply for a check using some other disclosure system (such as Disclosure Scotland), your record will be dealt with in line with their current processes. o If you have convictions which you obtained outside of England & Wales, these should be dealt with in line with the filtering process, as far as is possible. This element of the system is explained in more detail below. Overview of time periods Type of disposal Under 18 18+ Caution 2 years 6 years Conviction 5.5 years 11 years What will not be filtered? In relation to what MUST be included in the certificate that the DBS issues: Cautions relating to an offence from a list agreed by Parliament see below Cautions given less than 6 years ago (where aged over 18 at the time of caution) Cautions given less than 2 years ago (where aged under 18 at the time of caution) Convictions relating to an offence from a list agreed by Parliament - see below All convictions where there is more than one conviction Convictions that resulted in a custodial sentence (regardless of whether served) Convictions given less than 11 years ago (where aged over 18 at the time of conviction) Convictions given less than 5.5 years ago (where aged under 18 at the time of conviction) 3 of 15 www.unlock.org.uk

What will be filtered? Cautions Summary A caution received when 18 or over will not be disclosed if six years have elapsed since the date of issue and if it does not appear on the list of specified offences (which must always be disclosed). A caution received when under 18 (i.e. their youth equivalent) will not be disclosed if 2 years have elapsed since the date of issue but only if it does not appear on the list of specified offences (which must always be disclosed). Notes The process applies no matter how many cautions you have on the PNC (although not many people should have multiple cautions). Cautions will still be filtered even if you have multiple convictions that are not filtered. They will also be filtered even if others are not filtered (for example, if others are exempt, or too recent). The term cautions includes their youth equivalents, such as reprimands and final warnings. Questions to ask yourself 1. Have you received a caution (or equivalent) for an offence on the list of exempt offences? If yes, your caution will not be filtered. If no, your cautions (including if you ve received more than one) will be filtered, subject to below. o If you were under 18 at the time you received the caution, your caution will be filtered 2 years after the date the caution was issued. o If you were 18 or over at the time you received the caution, your caution will be filtered 6 years after the date the caution was issued. What will be filtered? Convictions Summary A conviction received when 18 or over will not be disclosed only if: 11 years have elapsed since the date of conviction; it is the only conviction on record; and it did not result in a custodial sentence. Even then, it will only be filtered if it does not appear on the list of specified offences which must always be disclosed. If there is more than one conviction on record, then details of all convictions will be disclosed. For a conviction received when under 18, the same rules apply as for adult convictions, except that the elapsed time period is 5.5 years. 4 of 15 www.unlock.org.uk

Notes This is only for if you have received one conviction. If you have more than one conviction on the PNC, all your convictions will be disclosed. Where people appear in court once, and where their DBS check shows one conviction but multiple offences, these will be treated as multiple convictions and so NOT be filtered. The term conviction includes absolute and conditional discharges, and court-imposed bindovers. Questions to ask yourself 1. Have you received more than one conviction? If yes, none of your convictions will be filtered. If no, move to 2. 2. If you have only received one conviction, did you receive a prison (custodial sentence YOI, borstal) sentence (including a suspended prison sentence) for it? If yes, your conviction will not be filtered. If no, move to 3. 3. Is the conviction that you received on the list of exempt offences? If yes, your conviction will not be filtered. If no, your conviction will be filtered, subject to 4; move to 4. 4. Did you receive the conviction when you were under 18? If yes, your conviction will be filtered after 5 and a half years of the date of conviction. If no, your conviction will be filtered after 11 years of the date of conviction. 5 of 15 www.unlock.org.uk

Offences not covered by filtering Specified offences Introduction to the list There is a list of offences published by the DBS that covers the offences that are exempt from the filtering process these are referred to in the DBS guidance as specified offences. Any offence that is included in this list will not be filtered, regardless of whether it was a conviction or a caution. The list includes a range of offences which Parliament regarded as serious, and which relate to sexual offending, violent offending and/or safeguarding. Parliament felt that it would never be appropriate to filter offences on this list. The DBS List of offences A list of offences which will never be filtered has been derived from the legislation and is available on the DBS website here. The list is arranged alphabetically by Act of Parliament and the offences are shown sequentially by section within each Act. The DBS has said that the list of offences will be updated to reflect changes to legislation in the future. As the DBS has only published a list of specified offences, we have put together a brief list of some of the more common offences that both will and will not be filtered. We are keen to know about further common offences that can be added to the lists below. Please email advice@unlock.org.uk. Common offences that are eligible for filtering (subject to sentence and time) 1. Common assault 2. Drunk and disorderly conduct 3. Harassment 4. Theft (where no violence is involved) 5. Drugs offences that involve simple possession Common offences that are exempt (i.e. always disclosed) 1. Many sexual offences a. Indecent assault on female 16 or over b. Posessing indecent photographs or psedo-photographs of children c. Sexual activity in a public lavatory 2. Offences that involve a certain degree of violence, for example a. Affray b. Assault occasioning actual bodily harm c. Robbery or assault with intent to rob d. Stalk a person causing fear or violence 3. Safeguarding offences a. Wilfully abandoning young person under 16 b. Taking a child out of the United Kingdom without the appropriate consent 4. Drugs offences that involve supply, for example a. Supplying controlled drug Class C 6 of 15 www.unlock.org.uk

Additional offences that are exempt (i.e. always disclosed) The legislation also extends to cover similar offences committed under the law of Scotland and Northern Ireland or under laws relevant to the armed services. For example, the following categories of offences would also always be disclosed: a) an offence which has been superseded (directly or indirectly) by any of the offences on the list; b) an offence of attempting or conspiring to commit any of the offences on the list ; c) an offence of inciting or aiding, abetting, counselling or procuring the commission of any of the offences on the list; d) an offence under the law of Scotland or Northern Ireland or any foreign country which corresponds to any of the offences on the list; e) certain offences under legislation applicable to the armed forces which correspond to any of the offences on the list. Given these points, it would be sensible to check any standard or enhanced certificate that you receive, to ensure that everything which should have been filtered has been. However, from the 17 th June, certificates will be sent directly to you as the applicant, so you will have the opportunity to question what has been disclosed, before revealing this to an employer. 7 of 15 www.unlock.org.uk

Frequently asked questions about specific disposals What is meant by a caution? This includes conditional cautions, as well as their youth equivalents, such as reprimands and final warnings, as well as the recently introduced youth caution. How are bind-overs treated? Where a court imposes a non-conviction bind-over this will not be considered to be a conviction for the purposes of filtering. Technically, these should not be disclosed (unless via other police information ) on standard and enhanced checks. However, a court may impose a bind-over having found an individual guilty. In such circumstances this would amount to a conviction for the purposes of filtering. Is an absolute discharge classed as a conviction? Yes. Absolute discharges are only imposed following a finding of guilt, and therefore are regarded as a conviction for filtering purposes. Is a conditional discharge classed as a conviction? Yes. For the purposes of this filtering process, a conditional discharge is regarded as a conviction. A conditional discharge is imposed on conviction for an offence. How is a suspended prison sentence treated? A suspended sentence is treated under legislation as a custodial sentence. This means that if you have a conviction which received a suspended prison sentence, it will not be filtered. A Detention and Training Order is also treated as a custodial sentence. Custodial sentences are defined in section 5(8) of the ROA, as to be substituted by section 139(1) and (4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. How are hospital orders treated? This order results from a conviction and therefore filtering will or will not apply depending on the offence committed. It is not regarded as a custodial sentence. 8 of 15 www.unlock.org.uk

How are service offences being treated? Where a person has a non-recordable service offence, for example being absent without leave, this will no longer be subject to disclosure under the Exceptions Order once it has become spent. There are no other changes to the treatment of service offences under these provisions, although this is an area that we are looking at to see whether we can provide more guidance on service offences more broadly, as a number of issues have been raised about these. What about offences overseas? The filtering rules cover convictions, cautions and their equivalents obtained overseas, where a check is being carried out in England & Wales by the DBS and an equivalent offence can be found. This is not an easy process, and we re expecting individuals who have things on their record from overseas to have to check the DBS certificate they receive, It s not clear how this will work, as it is a complicated process to match disposals from overseas. When it says under 18, what is this relating to? It relates to the date of conviction or disposal. It does not mean when the offence was committed. So, for convictions, it means when you went to court and either pleaded guilty or was found guilty. For cautions, it means when you accepted a caution. Are cautions still filtered even if there is more than one conviction? Yes. Multiple cautions (and their youth equivalents) can be eligible for filtering, regardless of the number of convictions received. Do cautions and a conviction have separate periods, or does the length of time start from the latest one? The time periods are per caution (or conviction). So, it is possible for one caution (or conviction) to be filtered, but for another caution not be filtered yet. Is it the number of offences or the number of convictions that count? Technically, it s based on the number of convictions. However, be careful. Many people think they only have one conviction, when in fact they have multiple convictions because of the way their offence was dealt with by the Police and CPS, and ultimately how it was dealt with at Court. 9 of 15 www.unlock.org.uk

If a caution is filtered, does it stay filtered if I get another caution? Yes. Cautions (and their equivalents) have separate filtering periods. If you later receive a further caution, or a single conviction, these will be dealt with separately under the filtering rules. If a conviction is filtered, does it stay filtered if I get another conviction? No. At the point of every new DBS application, the DBS will look at the PNC and will see more than one conviction, meaning that all convictions will be disclosed. This could mean that a conviction that has previously been filtered could reappear again in the future, if you get another conviction. I ve only been convicted of attempting to commit an offence on the list will that be filtered? Any conviction for an offence of attempting, conspiring, aiding or abetting, encouraging or assisting, the commission of any specified offence will also not be filtered. For example, an offence of attempted rape will not be filtered. 10 of 15 www.unlock.org.uk

General frequently asked questions Does this change when my convictions become spent? No. The Rehabilitation of Offenders Act 1974 (ROA) sets out when your convictions become spent. Employers are able to carry out a basic level disclosure to confirm unspent convictions. The filtering process applies to roles that are exempt from the ROA, which are entitled to carry out standard or enhanced level disclosures. Previously, these have always disclosed all cautions and convictions. The changes will reduce, in some cases, what is disclosed on these level of checks. Will I be worse off? No. Nobody should be in a situation where a caution or conviction is now disclosed that wouldn t have been disclosed immediately before this process came into force. Some people who benefitted from previously processes (such as step-down) may find that their caution or conviction isn t filtered under this process, but this is no different to what it was immediately before the filtering process was brought in. Do I have to apply to get my information filtered? No. The DBS will filter all information that meets the rules of the process. We understand that much of this process will be automatic, but some cases (such as those involving disposals obtained overseas) will be dealt with on a case by case basis. If it s filtered, will it be deleted? No. Filtering does not mean deletion. All filtering means is that it is not disclosed on a standard or enhanced level check. The information will still be held on the PNC. How will I know if my record has been filtered? The only way you ll know for certain is by applying for a standard or enhanced disclosure. From the 17 th June, the way the DBS deal with disclosures is changing, and certificates will only be sent to you (and not to the employer). So, if you re not sure whether something will be filtered, and are in the process of applying for a position that involves a standard or enhanced check, you may want to wait until you have received the disclosure back from the DBS before disclosing something to an employer that has been filtered. However, bear in mind that, if you you re fairly confident that parts of your record will not be filtered, you may be better off disclosing those elements that will not be filtered to the employer at the earlier possible opportunity. Will filtering apply to other types of criminal record checks? 11 of 15 www.unlock.org.uk

This process only applies to standard and enhanced DBS checks. In relation to basic checks, nothing should be eligible for filtering that isn t already spent under the Rehabilitation of Offenders Act 1974 (and therefore not disclosed on a basic disclosure anyway). The filtering process does not apply to other types of disclosures, such as Police Certificates issued by ACPO in support of applications to travel abroad. What is the impact of the changes on employers? The changes made to legislation impact on both what an employer can ask you, and what information they receive from the DBS. Can an employer ask me to declare details of all convictions and cautions? An employer can only ask you to provide details of convictions and cautions that they are legally entitled to know. The filtering process changes what employers are legally entitled to know, and so it should change the questions that employers ask. Where a standard or enhanced certificate can legally be requested (this is where the position is one that is listed in the Rehabilitation of Offenders Act 1975 (Exceptions) Order 1975), an employer can only ask an individual about convictions and cautions that would fall under the rules described above. That means only those convictions and cautions that would be disclosed on a DBS certificate. If an employer takes into account a conviction or caution that would not have been disclosed they are acting unlawfully under the Rehabilitation of Offenders Act 1974. There are a small number of defined positions where details of all convictions and cautions may be taken into account. These positions do not come through the DBS process. Examples are national security and police vetting. What question should an employer now ask? There has yet to be much guidance issued to employers on how they should revise their questions, but it is likely that employers will need to change their questions to make reference to the filtering process where the position is eligible for a standard or enhanced disclosure. A suitable question would be: Have you ever been convicted, or received a caution, warning or final reprimand, for an offence that will not be filtered from the PNC by the DBS? How do I answer the question about convictions on the DBS application form? As a result of this filtering process, the DBS has amended what is required for question e55 on the DBS application form for a criminal record check. They are encouraging Registered Bodies to bring this change to the attention of applicants when completing the DBS application form, although this is unlikely to happen in all cases. 12 of 15 www.unlock.org.uk

Question e55 asks have you ever been convicted of a criminal offence or received a caution, reprimand or warning? The DBS are advising applicants that they should ignore this question and treat this question as if it asks do you have any unspent convictions, cautions, reprimands or warnings? Can filtered cautions and convictions still be disclosed on enhanced disclosures as police intelligence? Yes. A chief officer may include details relating to an otherwise filtered conviction, caution, warning or reprimand on an enhanced disclosure if they consider, having regard to all the circumstances, that the filtered disposal is relevant and that it ought to be disclosed. It is unclear, at this stage, how filtered disposals will be dealt with by local police forces when deciding whether to disclose information as relevant police intelligence. A filtered disposal may also continue to be considered by the DBS for the purposes of making a barring decision. There is no such ability to add a filtered disposal back in to a standard disclosure certificate. What will now be shown on a DBS certificate? Standard and enhanced DBS certificates will include details of convictions and cautions (including youth cautions, reprimands and warnings) recorded on the Police National Computer (PNC). In addition to information from the PNC, an Enhanced certificate may also include information taken from police records that a chief officer of a police force considers relevant to the application and/or details of whether an individual is included on one or both of our two lists barring people from working with children and/or vulnerable adults. Some PNC information will now be filtered and will not appear on the certificate. Cautions and convictions filtered out are set out in legislation. Has eligibility for a DBS check been affected by these changes? No. Guidance on eligibility can be found on the DBS website. 13 of 15 www.unlock.org.uk

Examples Below are some scenarios that will hopefully help to explain the filtering rules in practice. Scenario Outcome Reason 1 David received a caution for theft in June 2006. He was 21 at the time. His caution will have been filtered from June 2012. An adult caution takes 6 years to be filtered. 2 Jane was given a warning for affray in February 2011, when she was 17, and was convicted in January 2012 for common assault, when she was 18. Her warning will not be filtered. Her conviction will be filtered in January 2023. Affray is on the list of exempt offences. A single adult conviction takes 11 years to be filtered. 3 Paul was charged with 3 counts of theft, convicted in March 1992, when he was 15, and given a fine. His convictions will not be filtered. As his charge resulted in more than one conviction, none of them will be filtered. Questions/guidance You should read the DBS guidance (links are at the top of this document). You can also call the DBS on 0870 90 90 811 or email them at customerservices@dbs.gsi.gov.uk. We are already receiving reports of people being given conflicting information from the DBS. Given this is a new process, this is inevitable. Our advice is to carefully read the guidance that the DBS has published, as opposed to relying on verbal advice. We are actively raising issues which are not very well covered in the DBS guidance, and are encouraging them to ensure that their guidance is as clear, detailed and unambiguous as possible. 14 of 15 www.unlock.org.uk

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