Challenging the DBS ‘filtering’ rules

Latest

9th July 2020Government responds to Supreme Court ruling with plans to change criminal records disclosure regimeRead our response to the government’s plans, and find out more about the impact of these changes (and download a brief guide).

30th January 2020 – Rights groups condemn government’s failure to fix broken DBS system

30th January 2019The Supreme Court judgment – The court has ruled that two aspects of the criminal records disclosure scheme are disproportionate and in breach of Article 8 of the European Convention on Human Rights; in particular, the blanket rules which require the automatic disclosure of all convictions where a person has more than one conviction, and the requirement that some childhood cautions be disclosed indefinitely. This is an important ruling which stands to affect many thousands of people with old and minor criminal records who have been unnecessarily anchored to their past. Read Unlock’s response and media coverage of the decision.

For more latest news, you can:

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  3. follow the latest on Twitter using the hashtag #dbsfiltering

Do you have a caution/conviction that can never be filtered?

The government has now responded to the Supreme Court ruling that multiple convictions ought to be filterable, and that reprimands/final warnings and youth cautions should not be disclosed. We’re gathering evidence to show how important these changes are:

We’d like to hear from you if:

  • you’ve only been to court once, but you were charged for two ‘counts’
  • you have two separate convictions
  • you received a reprimand, final warning or youth caution when you were under 18

The court did not rule that the list of offences that can never be filtered should be changed. None of the cases addressed the question of whether custodial or suspended sentences should be filtered. We are gathering evidence to show why this should change.

We want to hear from you if you:

  • served a short prison sentence, or suspended sentence, for an offence that could be filtered
  • have a caution or conviction for an offence that currently cannot be filtered – such as
    • Assault occasioning ABH (s.47 Offences Against the Person Act 1861)
    • Robbery (s.8 Theft Act 1981)
    • Loitering for purposes of prostitution (s.27 Sexual Offences Act 1992)

What we need from you

If you are affected by the filtering rules, contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: DBS filtering’. Please include:

  • Your name
  • Your date of birth
  • Contact details (email and telephone) and how you’d be happy for us to contact you
  • Which example above you think your case fits into
  • Details of your cautions/convictions including the dates and a DBS certificate if you have one
  • The difficulties you’ve faced, recently or in the past, as a result of your criminal record not being filtered.
  • Whether you would be willing to contribute to any media coverage on this issue in future (this is for our reference, we won’t share your details without consent)

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent.

Find out more about how we handle your data.

Read more about the Supreme Court case

In summary

Standard and enhanced checks issued by the DBS reveal old, minor and irrelevant criminal records. The current system of disclosure was ruled unlawful by the High Court in 2016. The DBS filtering rules are blunt and disproportionate. People are losing out on jobs and roles they’re qualified for. As things stand, a criminal record dogs people for decades, and often for life, no matter how old or minor. This is despite knowing that, in particular, people make mistakes when they’re young. Young people should be allowed to fail. The current system is unnecessary and damaging. A fairer, more proportionate and flexible system should be developed that protects the public without unduly harming people’s opportunity to get on in life. This would be one with expanded automatic filtering rules and a discretionary filtering process with a review mechanism.

Why it matters

A criminal record can be crippling for employment – Employers are risk-averse, and often assume that if something is flagged on a disclosure, they cannot hire the applicant. Yet it’s a sad irony that a criminal record only becomes a problem when someone decides to get on in life; a criminal record check is not required to sell drugs or join a gang, but it is to get a job or go to university.

It dogs people for decades – The current system affects people with a criminal record for longer and more profoundly than elsewhere in Europe. The current criminal record disclosure system acts as a significant barrier to them doing so and can have profound effects well into adulthood, and often indefinitely.

Large numbers of people are affected – In 2019/20, 237, 790 checks revealed convictions or cautions after filtering rules had been applied. In our experience, disclosure of a criminal record is a fatal blow to an application and it is more common to reject the applicant than to conduct an assessment and proceed to hire them.

The problem

  1. The intention of the DBS filtering system was to prevent the disclosure of old and minor offences on standard and enhanced criminal record checks. However, in practice the system is ineffective because it is limited by inflexible rules and only came about due to legal challenges. Since the filtering scheme was introduced in 2013, it’s helped many people with old and minor criminal records to be free of the stigma and discrimination that so many face when they have something on their criminal record. However, the current system doesn’t go far enough: it is blunt, restrictive and disproportionate.
  2. Many people have more than one offence on record. For example, someone stealing a car will have committed at least two offences; theft and driving without insurance. The ‘single conviction’ rule has no rational relationship to the purposes of rehabilitation.
  3. Minor offences are being routinely disclosed. Between 2013 and 2015 under-18 shoplifting was disclosed 34,000 times and there were over 2,795 disclosures of under-18 convictions for theft of a cycle. Disclosure of minor offences including shoplifting, common assault and possession of various forms of cannabis were some of the most commonly disclosed under-18 convictions. This suggests that the “two offences” rule is having a significant impact on children.
  4. The list of offences is an inappropriate measure of seriousness. Robbery (an offence than cannot be filtered) could be used as the offence where a 12-year-old pushes over a classmate and takes their mobile phone. Offence categories fail to take into account specific circumstances. For example, the production and distribution of sexual images of a child could relate to a 16-year-old sending a classmate a naked picture of themselves. When it comes to cautions, people may accept a caution for a relatively serious offence when, if they were charged, that offence would likely be downgraded or they might be acquitted. Offences of ABH and prostitution should not be on the list.
  5. There is no discretion – The filtering system is made up of ‘bright-line’ rules:
    1. Age, seriousness and relevance are not considered where someone has more than one conviction.
    2. Disclosure is automatic – there is no provision to make prior representations if something does not fit within the automatic rules.
    3. There is no assessment at any stage as to the relevance of the conviction/caution to the employment sought, or to the extent the individual may be perceived as continuing to pose a risk.
  6. There is no opportunity for review – The Independent Monitor is available to review the decision by a Chief Police Officer to disclose “relevant information” such as arrests and allegations. This function does not currently extend to reviewing the automatic disclosure of old/minor convictions and cautions.

What we think should change

We urge the government to take immediate steps to reform the system and make sure that old, minor or irrelevant convictions and cautions are not disclosed on criminal record checks. This would include extending the automatic filtering rules so that they cover multiple offences/convictions and that more offence categories could be filtered. A discretionary filtering process with a review mechanism could apply to convictions and cautions not eligible for automatic filtering because of the nature of the offence or the sentence received.

The government has an opportunity to undertake proactive work to establish a much more proportionate framework. An appropriate statutory framework should be:

  1. Transparent and fair: Clear to all parties, including individuals and employers. Individuals are able to understand what may be disclosed on a certificate
  2. Proportionate: Old, minor or irrelevant information is removed from the disclosure where it does not relate to the purpose of the check being undertaken
  3. Flexible: For enhanced checks, the police can disclose relevant information if necessary (even if filtered). Wide range of factors that need to be considered when assessing proportionately. Any automated process of filtering is subject to an individual consideration. Does not require a decision about every disclosure or each time a fresh disclosure is sought.

In relation to the current filtering system, the government should:

  1. Remove the ‘multiple conviction’ rule
  2. Reduce the list of offences not eligible for filtering
  3. Remove the restriction on prison sentences so they are eligible for filtering
  4. Introduce a discretionary filtering system: Read more about discretionary filtering.
  5. Enable applicants to apply for their own DBS certificate before applying for jobs
  6. Create a distinct system of disclosure for criminal records acquired in childhood (as recommended by Charlie Taylor in his review of youth justice in 2016).
    • The current system is unnecessary and actively unhelpful to children in building positive lives in adulthood. International comparisons indicate less punitive systems don’t negatively affect public or employer protection. Read our report on youth criminal records.
    • We support the ‘Growing up, moving on’ campaign led by the Standing Committee for Youth Justice. This includes the provision for childhood records to be physically deleted after a period of non-offending.

Read our briefing for more detail on our recommendations and the evidence that supports change.

Case studies

Case of Elli – A personal response to the Supreme Court ruling

Case of Marcus – Disclosure of youth convictions prevents reaching full potential

Case of Wesley – Disclosure of old convictions means people haunted by past mistakes

Case of Diana – Disclosure of convictions from 25 years ago threaten chances of fostering

Case of Hilary – Reliving old convictions stops people from pursing their dreams

Case of Kate – Qualified to work but old convictions are the barrier

Case of Larry – Two conditional discharges first causing problems 40 years later 

A piece on BBC Newsnight in June 2018, ahead of the Supreme Court hearing, featured two cases. 


In our response to the Justice Committee inquiry, we included a number of case studies of people affected by criminal records acquired in their youth. These include:

Other interesting cases

Latest news

The latest on this issue can be found at the top of this page. For more latest news, you can:

  1. click here for a full list of news posts
  2. sign up our mailing list to receive updates by email
  3. follow the latest on Twitter using the hashtag #dbsfiltering

BBC Radio 4’s Law in Action focused on childhood criminal records in a piece in November 2018. Listen below:

 

Useful links, resources and publications

Briefing – Reform of the criminal records disclosure regime (July 2020)

Joint letter to David Gauke and Sajid Javid (with Just for Kids Law and Liberty, March 2019)

Submission to the Supreme Court (June 2018)

Filtering of criminal records from DBS checks – Unlock briefing (May 2018)

A life sentence for young people – A report on the impact of criminal records acquired in childhood and early adulthood (May 2018)

A simple guide to filtering of spent cautions and convictions (Unlock’s Information Hub)

Cases challenging the DBS filtering system

Law Commission project – Non-disclosure of certain criminal convictions and cautions (February 2017)

Letter to Secondary Legislation Scrutiny Committee (April 2013)

Filtering old and minor convictions – Effect of the case of T (Unlock, February 2013)

Submission to the Criminal Records Review – Phase 1 (Unlock, December 2010)

Our Proposed Filtering Approach (Unlock, October 2010)

Unlock Member Briefing – A Balanced Approach – Independent Review by Sunita Mason (Unlock, March 2010)

Recommendations to the Independent Review of Policy on Retaining and Disclosing Records held on the Police National Computer (Unlock, February 2010)

Member Submissions to the Independent Review of Policy on Retaining and Disclosing Records held on the Police National Computer (Unlock, February 2010)

 

For more information

  1. Practical self-help information  – We have guidance on the DBS filtering process on our information site
  2. Personal experiences – We have posts relating to our work to challenge the DBS filtering process on our online magazine, theRecord
  3. Discuss this issue – Share your views and experiences on our online forum

 

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