Appendix 3 - legislative drivers
Appendix 3 - legislative drivers
The following provides a brief outline of the different pieces of legislation which underpin DBS checks.
Rehabilitation of Offenders Act 1974 (as amended in England and Wales)
Under the Rehabilitation of Offenders Act 1974 convictions, cautions, reprimands and final warnings can become spent after a specified period of time – the rehabilitation period. Rehabilitation periods vary depending on the sentence or order imposed by the court, not the actual offence.
Once a conviction or caution becomes spent (old) the ex-offender is not normally legally required to declare the information when applying for the majority of jobs, volunteering activities and education and training courses. However in order to protect the vulnerable, certain professions within health, social care and other sectors are exempt from these provisions under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended).
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in England and Wales)
The Exceptions Order lists specific positions, professions, employment, offices, works and licences which are exempt from the provisions defined by the Rehabilitation of Offenders Act.
This means that employers appointing individuals into any of the listed positions or professions are legally entitled to ask applicants to declare all spent and unspent convictions, cautions, reprimands and final warnings which are not protected by the DBS filtering rules and to take these into account as part of the recruitment process.
DBS Filtering rules
These were introduced on 29 May 2013 under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) 2013. From this date, certain spent or minor convictions and cautions become protected (or filtered out) when certain conditions are met and will not be included in a standard or enhanced disclosure certificate issued by the DBS.
Please refer to Appendix 1 for further information on filtering rules
Legal Aid, Sentencing and Punishing of Offenders Act 2012
On 10 March 2014 changes to the Rehabilitation of Offenders Act came into effect in England and Wales under Section 139 of the Legal Aid and Sentencing and Punishment of Offenders Act 2012. These changes impact on the period of time that needs to lapse before a conviction or caution can be considered spent (old).
Employers must ensure they are only asking applicants for information that they are legally permitted to seek. This is particularly relevant where recruiting to positions which are eligible for a basic disclosure (which required individuals to declare unspent convictions only).
Police Act 1997 (as amended)
The Police Act 1997 (as amended in England and Wales) permits employers to obtain information about an applicant’s spent convictions and cautions by requesting a standard or enhanced disclosure through the DBS.
Section 123 of Part V of the Act makes it a criminal offence for employers to require a standard or enhanced disclosure when considering appointments to positions which are not exempt i.e. included in the Rehabilitation of Offenders Act (Exceptions) Order.
Police Act 1997 (Criminal Records) (Amendment) Regulations 2013
The above outline when an enhanced criminal record certificate may be requested, including assessing a person’s suitability to work with adults and children by obtaining information against the barred lists.
Part V of the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013
Changes to the Police Act were introduced in England and Wales on 29 May 2013 amending the definition of ‘relevant matters’.
Relevant matters specifically refer to information that is not protected by the DBS filtering rules and police forces can include when responding to a request for information through a standard or enhanced DBS disclosure. This is because of the potential risk to the vulnerable and where disclosing this information may add relevant contextual or background to a conviction or a caution which might be invaluable to an employer when they are considering applicants for specific roles.
Safeguarding Vulnerable Groups Act 2006
The Safeguarding Vulnerable Groups Act 2006 was created in direct response to recommendations made in the Bichard Inquiry into the Soham murders in 2002. The inquiry questioned the way organisations recruited people to work with vulnerable groups and the way background checks were carried out.
The Act provided the legal basis for setting up the Independent Safeguarding Authority (superseded by the Disclosure and Barring Service in 2012) and laid the original foundations for the Vetting and Batting (VBS). It set out the type of work and activities that a person who has been barred must not do – known as regulated activities.
Changes under the Protection of Freedom’s Act 2012
The Protection of Freedom’s Act came into force in 2012 following a review into the criminal record system which was led by the independent government advisor, Sunita Mason. The review was intended to gauge current use of the criminal record regime, including the proposals for a new Vetting and Barring scheme, and assess whether this remained appropriate and proportionate. As a result, plants to launch the Vetting and Barring Scheme were halted.
The following provisions were enforced under the Act:
The establishment of the DBS, merging the functions of the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA).
The introduction of a new definition of regulated activity reducing the scope of eligibility for enhanced checks with barred list information
The launch of the DBS Update Service which allows the portability of disclosure certificates where individuals are subscribed to the service
The introduction of a single DBS Disclosure Certificate which is only issued to the applicant to whom the information relates. Employer certificates are no longer issued.
A stipulation that criminal record checks can only be obtained for individuals aged 16 years or over
The introduction of a more rigorous relevancy test which police forces need to apply when deciding whether or not to include non-conviction information in response to a disclosure request. This does not impact on their common law powers to share information where it is regarded necessary for safeguarding the most vulnerable.
Removal of the requirement for police forces to disclose additional information about applicants separately (‘brown envelope’ information)
A new representation process for individuals providing the opportunity for them to challenge inaccurate information contained in their disclosure certificate
Data Protection Act 1998 (including General Data Protection Regulation changes effective from 25 May 2018)
On 10 March 2015 Section 56 of the Data Protection Act 1998 was fully implemented. This amendment was specifically put in place to prevent the misuse of Subject Access Requests (SARs)
From 10 March 2015 it became unlawful for an employer to require an applicant or existing member of staff (including those supply through an agency or third part contractor) to obtain a copy of their full criminal record directly from the police, probation service or courts by using their ‘subject access’ rights under the Data Protection Act and then share it with them. This is known as an enforce subject access request. Any employer in England and Wales who carries out an enforced subject access request may now face prosecution by the Information Commissioners Office (ICO)
Employers in England and Wales must only request this information through a basic, standard or enhanced disclosure via the DBS.