Category: State use of criminal records

Unlock complaint leads to ruling that the Disclosure and Barring Service breached the Data Protection Act

We’re pleased to report that the Information Commissioners Office (ICO) has today issued a press release which sets out their ruling that the Disclosure and Barring Service (DBS) has breached the Data Protection Action after failing to stop collecting information about criminal conviction data that was no longer required because of a filtering regime that was introduced in May 2013.

The DBS hadn’t updated their application forms, and so although the ‘filtering’ process meant that certain cautions and convictions are no longer disclosed on standard and enhanced checks, the DBS were still asking whether applicants had “ever been convicted of a criminal offence or received a caution…” as part of their application form. The result of this was that employers were finding out information which they weren’t entitled to know about.

We made the original complaint to the ICO in September 2013, after our helpline had received a number of calls about this problem. In particular, we highlighted two cases where individuals had disclosed information they no longer needed to disclose, but had subsequently had their offers of employment withdrawn. The two cases are explained in more detail below.

Christopher Stacey, Co-Director at Unlock, said; “We’re pleased to see that the DBS has responded to this issue by updating their application form and improving their guidance to applicants. It is important that people with convictions are able to understand what they do and don’t have to disclose during the recruitment process, and the DBS have an important part to play to make this clear and easy to understand.”

“It remains difficult for people to find out whether a caution or conviction that they have is eligible for filtering, and we would like to see the DBS respond to this issue by introducing a system which allows individuals to obtain a copy of their DBS certificate before they start applying for jobs or volunteer work, so that they can be confident that they’re disclosing the appropriate level of information. We would also like to encourage employers that are entitled to carry out standard and enhanced checks to make sure that they look at their own recruitment processes and make sure that they are only asking about cautions and convictions that would not be filtered by the DBS”.

Brief details of the cases that formed part of our complaint to the ICO

Case One
An individual ticked ‘Yes’ to the question because the question hadn’t changed, and they didn’t see the accompanying guidance. To them, it was clear what question they were being asked, and so despite their conviction being one that would be filtered, they ticked ‘Yes’ which meant, because they handed the form back to the employer to submit, they had disclosed they had a conviction to the employer. The employer asked further questions about this, and decided to withdraw the job offer.

Case Two
An individual ticked ‘Yes’ to this question because they were not sure whether their conviction would be filtered. As there was no other means of definitively finding out whether it would be filtered or not, they erred on the side of caution and ticked ‘Yes’, believing that, if it would be filtered, it wouldn’t matter what they put. It turned out that their conviction was due to be filtered, but because they had ticked yes, their employer got to find out when they handed the form back, and subsequently decided to withdraw the job offer.

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Notes to editors

Press/media
More information relating to the filtering process is available here.

Updates to the DBS filtering process

This update has been taken from our Information Hub

December has seen a couple of updates from the Disclosure & Barring Service regarding the filtering process.

Nothing has substantially changed – it’s simply that the DBS are trying to improve the way that they’re explaining how the filtering process works.

So what has changed?

Firstly, the DBS has updated their list of offences that will never be filtered. This increases the list of offences to over 1,000, as well as those offences such as attempting or conspiring to commit the offences listed). This update isn’t the result of a change in the law – it comes from the Home Office, who are trying to produce a list that is more accurate and easier to use. Unfortunately, they still haven’t produced a list of offences that would be eligible for filtering so long as they meet the other criteria (which we’ve suggested would be useful).

Secondly, the DBS has updated their filtering guidance. Helpfully, they’ve given some advice to employers on how they should change their application forms to ask a more accurate question which takes into account filtering.

Although we’re not the publishers of these two pieces of information, we always appreciate feedback on what you think about them, and particularly in raising any issues that you find, so that we can raise them with the Home Office and DBS. Please get in touch.

One conviction or multiple offences? The DBS filtering process

Ever since we published our Information Hub guide on the new DBS filtering process, our Helpline has been receiving queries left, right and centre about the filtering process and how it applies to them. It’s fair to say that, in lots of cases, it doesn’t help, because they have more than multiple convictions over many years, or received prison (or suspended) sentence.

One issue that seems to be quite common is where people believe themselves to have one conviction, only to find that, when they do a DBS check (or get a Police National Computer record) , they have a number of ‘offences’ on their record, all of which were dealt with at the same time in court. A common example is drink driving and driving without insurance. The court records this as one conviction, but would have two offences.

We’ve clarified this kind of example with the Home Office, who interpret this situation as meaning ‘multiple convictions’, meaning that none would be filtered from a DBS check.

This is something we’re looking at challenging, and as part of this, we’re keen to hear of people who may be affected by a similar kind of issue. The more examples we get, the better chance we have of finding a way of challenging this.

If this is something that affects you, please get in contact with our Helpline. If you have a copy of a DBS (or CRB) disclosure, or a copy of your PNC record, which shows this, please send this through too. All information is treated confidentially.

DBS start filtering cautions and convictions

This update is taken from our Information Hub

As some of you may have seen from the news, the Disclosure & Barring Service (DBS) has started, as of yesterday, a process of ‘filtering’ for cautions and convictions held on the Police National Computer.

Today, we’ve published our own detailed guide on how the DBS filtering rules will work. This can be viewed here.

Although we’ve known this has been coming for quite a few weeks now, it wasn’t until last week that we found out exactly when it would be coming into force. It wasn’t until yesterday when, along with everybody else, we got a chance to see the guidance that the DBS had written and, in particular, saw the full list of offences that are exempt from filtering.

We’ve written a lot about this issue in recent years (see more here). Unfortunately, the filtering process that the Government has introduced doesn’t go far enough in lots of ways. However, based on the calls our Helpline has been receiving in the last couple of days, it is certainly going to help some people, and for those people, it could mean the difference between getting refused the role they’ve applied for, and finally getting an opportunity to prove themselves. We will continue to argue that the system should go much further, to ensure that genuinely law-abiding people with convictions are able to reach their potential.

In the meantime, after having chance to digest the DBS guidance, alongside the list of offences, and the numerous questions we’ve asked of Government in recent weeks, we’ve published a detailed guide on the DBS filtering process. We hope that this information will help you to understand whether the process will help you in your own situation; we’ve tried to put together a number of questions that should help, as well as frequently asked questions and some examples.

It is going to take some time for people to understand this process. In particular, it’s likely that employers will be confused about what it means for them and their recruitment. On top of many other changes being made to the DBS process, this represents an unprecedented level of uncertainty about how the DBS process operates. We will continue, as always, to try to help people with convictions better understand the system as best as we can.

If you have any questions about this information, please contact us.

If you’d like to discuss this information with others, there is a specific thread on our online forum.

We write to Parliamentary Committee on filtering proposals

Today we’ve written to the Secondary Legislation Scrutiny Committee to raise our concerns with the Order which sets out how the DBS filtering process will work.

You can download the letter to read the details of our concerns.

Filtering process for old/minor convictions put forward by Government

Unlock, the national charity for people with convictions, has today welcomed Government proposals which, if introduced, would mean that some old and minor cautions and convictions will no longer be disclosed on standard and enhanced level criminal record checks, carried out for employers by the Disclosure & Barring Service (DBS).

In January 2013, the Court of Appeal found that the current system of disclosing all convictions, cautions, reprimands and warnings, no matter how old or minor, was not compatible with Article 8 of the Human Rights Act (the right to a private and family life). The Government has filed an application for permission to appeal against this ruling, so for the time being the system stays unchanged. But, in response to the judgement itself, the Government has put forward a filtering process. The changes would not come into force until after the legislation has completed its passage through Parliament.

For adults with a conviction, it would not be disclosed if (a) the conviction was more than 11 years ago, (b) it is the only conviction on record, and (b) it did not result in a prison sentence. Serious violent and sexual offences would continue to be disclosed. For adults with cautions, they will not be disclosed if (a) the caution was more than 6 years ago and (b) it is not in the list of serious violent and sexual offences. For people under 18 at the time, the periods would be 5 and half years for a conviction, and 2 years for cautions.

Christopher Stacey, Unlock’s Director of Services, who advised the Government in 2011 as part of an expert panel set up by the Home Office to look at this issue, said, “Since 2002, more and more employers have been using standard and enhanced level checks as a reason for not employing people with old and minor offences on their record. The current system discloses minor cautions and convictions until a person’s 100th birthday, and our peer-helpline regularly deals with people whose minor convictions from, in many cases, more than 20 years ago stop them from getting work in the profession they’re qualified and experienced in. In 2011, we provided the Government with clear proposals on how a filtering system could work. Although today’s proposals don’t go as far as we would like, the acceptance that there should in fact be a more balanced approach to disclosing convictions is an important step forward, and we hope that this system can be introduced as soon as possible.”

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Court of Appeal rules on CRB checks

Linked to our press release on the recent Court of Appeal decision around CRB checks, we’ve given radio interviews to Radio 5 Live and BBC Radio Wales.

Both are these can be listened to below.

Senior judge says government must ‘pull it’s finger out’ on criminal record checks

New Court of Appeal ruling could mean a change for 9.2 million Britons with criminal records
Master of the Rolls, Lord Dyson, said today that the Government should “pull its finger out” to reform the system
Ruling adds further pressure after recent ruling in separate case in the European Court of Human Rights

Unlock, the charity for people with convictions, has welcomed Lord Dyson’s remarks which support their continued call for changes to how the UK treats criminal record information. At a hearing at the Court of Appeal today the Master of the Rolls, Lord Dyson, said that the Government should “pull its finger out” to reform the system until recently known as CRB checks.

The Court of Appeal has found that the current system of disclosing all convictions, cautions, reprimands and warnings, no matter how old, minor or irrelevant, is not compatible with Article 8 of the Human Rights Act- the right to a private and family life. Criminal record checks, provided in England by the Disclosure and Barring Service, are available to employers recruiting for certain roles and are also used by educational establishments.

Chris Bath, Unlock’s executive director said, “Under the current system, even the most minor childhood convictions are kept on record until a person’s 100th birthday. They will always be disclosed on a criminal records check. Evidence from our helpline for people with convictions shows that this is forcing people onto benefits. There will be no ‘rehabilitation revolution’ until people have a real opportunity to leave crime behind.”

The case in the Court of Appeal involved a man who had received police warnings at the age of 11. The information was disclosed when seeking a job as a 17 year old and later when he applied for university. The case highlights the long term effects of criminal record, even those gained as a child. It has parallels with the experience of former Police & Crime candidate Bob Ashford, who was forced to stand down due to having received a fine of £2 and 10 Shillings as a 13 year old in 1966 and later launched the ‘Wipe the Slate Clean’ campaign with support from charities including user Voice and Unlock.

Figures obtained by Unlock show the scale of the issue. There are now 9.2 million in the UK with criminal records on the Police National Computer, with one in three men having a criminal conviction by the age of 53. 26% of the 4.9 million open claims for benefit are made by people who have gained a conviction in the last 10 years.

Combined with the European Court of Human Rights’ recent condemnation of the lack of scope for discretion in the UK’s criminal records disclosure system, the Court of Appeal’s decision could have significant implications on the criminal record disclosure system.

The Government has made positive changes to the Rehabilitation of Offenders Act 1974 which will come into force in Spring 2013. These will reduce the periods that many people have to disclose their convictions for some jobs. However, jobs for which a criminal record check is conducted will continue to bypass this legislation.

Unlock representative Christopher Stacey, who was a member of the government’s Independent Advisory Panel on Disclosure of Criminal Records, said, “In 2011 Unlock provided the Government with clear proposals on how a system of filtering old and minor convictions could work. We now look forward to reforms that give the millions of people with convictions a fair opportunity to provide for themselves and their families.”

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Media enquiries

CRB’s and second chances

As part of of the ongoing Court of Appeal case about CRB checks, we’ve written an article for thejusticegap.com.

You can read the article here.

The impact of CRB checks on people

We discuss on BBC Radio Essex about the problems that CRB checks cause people with convictions, and how the system should be improved. You can listen to the piece below.