October 13th, 2023 | Sterling

Are You Prepared for Changes to Disclosure and Barring Service Checks?

A Disclosure and Barring Service (DBS) criminal record check is often a crucial step towards a robust employment screening program for organisations across many industry sectors, especially where a role involves working with vulnerable populations or positions of trust. Here we look at the different types of DBS criminal record check, as well as highlighting the changes being introduced from 28 October, 2023.

An employer can request a criminal record check for any role within their organisation. However, for certain roles, an employer can request a more detailed DBS check. DBS has four levels of criminal record checks that employers or screening providers may conduct on an individual:

1. A Basic DBS check can be used for any purpose, including employment. The certificate will contain details of convictions and conditional cautions that are considered to be unspent under the terms of the Rehabilitation of Offenders Act 1974 (‘ROA’).
2. A Standard DBS check is suitable for certain roles, for example security guards. The certificate will contain details of both spent and unspent convictions, cautions, reprimands, and warnings that are held on the Police National Computer, which are not subject to filtering.
3. An Enhanced DBS check is suitable for people working with children or adults in certain circumstances, such as those in receipt of healthcare or personal care. The certificate will contain the same details as a standard certificate and may also contain non-conviction information supplied by relevant police forces, if it is deemed relevant to the role and ought to be contained in the certificate.
4. An Enhanced with Barred Lists DBS check is also suitable for people working with children or adults in certain circumstances, such as those in receipt of healthcare or personal care. An Enhanced with Barred Lists certificate will contain the same information as an Enhanced DBS certificate, but will also include a check of one or both of the lists of people barred from doing the role.

The roles for which a more detailed DBS check can be conducted are determined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. This means that there are certain activities for which a more detailed or fuller disclosure of a person’s criminal record history is relevant; for example, where there is a real risk to children, other people in vulnerable circumstances, or some other particularly sensitive area of work.

Important to note is that although a Standard or Enhanced criminal records check will disclose both spent and unspent convictions, not all convictions will be disclosed as some are considered protected. However, filtering rules, which were first introduced on 29 May 2013 when amendments were made to legislation, determine both what an employer can ask an individual in relation to convictions and cautions and what is disclosed on a Standard or Enhanced DBS certificate.

These rules were updated on 28th November 2020 as follows:

• Warnings, reprimands and youth cautions will no longer be automatically disclosed on a DBS certificate.
• The multiple conviction rule has been removed, meaning that if an individual has more than one conviction, regardless of the offence type or time passed, each conviction will be considered against the remaining rules individually, rather than all being automatically disclosed.

What Is Changing When It Comes to DBS Checks?

As of Saturday 28 October 2023, DBS will be implementing the following changes to the above:

Changes to the Rehabilitation of Offenders Act ROA (affecting Basic, Standard, and Enhanced checks):

Custodial sentences of over four years that are not already excluded (such as life sentences or sentences of imprisonment for public protection), will be able to become spent for the first time. However, to ensure the protection of the public, the changes do not apply to persons sentenced to more than four years imprisonment following a conviction for any serious violent, sexual, or terrorist offences listed in Schedule 18 of the Sentencing Act 2020. These convictions will continue to never become spent and will therefore always be disclosed.

In addition, rehabilitation periods for some disposals/sentences will be reduced. For example:

• Custodial sentences of more than one year and up to four years will now become spent four years after the end of the sentence.
• Custodial sentences of up to one year will now become spent one year after the end of the sentence.
• Community Orders and Youth Rehabilitation Orders will now become spent at the end of the order.

Changes to Filtering Rules (affecting Standard and Enhanced checks):

The Filtering rules that dictate the content of Standard and Enhanced checks will change, with the impact of all unspent records always being disclosed. This change will mean that in limited circumstances, some applicants will now see additional unspent records being disclosed.

FAQs:

Q: Will my certificate be produced according to the old rules or the new rules, and does the date I submit my application dictate which rules are used?

A: The date on your certificate will tell you which rules have been applied to your check. If the certificate is dated 28th October 2023 or later, then the new rules will have been applied. Certificates with any date before the 28th of October will have been processed using the old rules.

Q: Why is less information now being disclosed on Basic DBS checks, and why is the Rehabilitation of Offenders Act (‘ROA’) changing again?

A: The changes to the ROA are designed to support ex-offenders to move on with their lives and enable them to contribute to society by having greater access to employment. 

Q: Why are the ROA rules now being applied to Standard and Enhanced DBS checks?

A: Previously, in some limited circumstances, there were records of unspent convictions and cautions that would be disclosed on Basic checks that would not have appeared on Standard and Enhanced checks. Ensuring that all unspent records appear on all levels of DBS checks makes DBS products easier to understand, and will ensure recruitment decisions can be made with all of the relevant information.

Q: Will these changes have any impact in Scotland and Northern Ireland and/or will this impact checks done by Disclosure Scotland and Access NI?

A: No, these changes only apply to England and Wales. 

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.