In a detailed report published today, the Law Commission has recommended a wider review of the criminal record disclosure system.
In the most comprehensive operational assessment of the DBS filtering process to date, their conclusion is that:
“Given the vast array and magnitude of the problems identified by our provisional assessment of the disclosure system as a whole, there is a compelling case to be made in favour of a wider review. Our conclusion is that the present system raises significant concerns in relation to ECHR non-compliance and, what may be considered to be, the overly harsh outcomes stemming from a failure to incorporate either proportionality or relevance into disclosure decisions. An impenetrable legislative framework and questions of legal certainty further compound the situation. This is an area of law in dire need of thorough and expert analysis. A mere technical fix is not sufficient to tackle such interwoven and large scale problems.”
Their review had a specific focus on the current ‘list of offences that cannot be filtered’. On that, the report states:
“…the choice of offences in the list appears to lack coherence and a clear basis”
Because of the limited scope of the project, the report states that:
“We do not make recommendations about whether any particular offences should be added or removed from the list”
In examining the operational list, the Law Commission identified the following specific practical and operational problems:
- possible inaccuracy of the operational list;
- likely inefficiency in the system of offence codes;
- risk of unnecessary or inadequate disclosure;
- risk of the need for constant updating of the list not being met; and
- a lack of guidance for those answering exempted questions.
The report goes on to state that:
“Any recommendations that we made regarding the non-filterable list would clarify the contents of that list and make it more accessible for users of DBS, but more deep-seated confusion regarding the operation of the Rehabilitation of Offenders Act 1974 and the exempted questions would remain. In Chapter 5 we discuss possible topics for a wider project addressing both the criminal records disclosure system and the rehabilitation of offenders scheme.”
Responding to the report, Christopher Stacey, Co-director of Unlock, said:
“Today’s report is a damning indictment of the current DBS filtering system and reinforces the concerns we’ve raised since it was first introduced in 2013. We are pleased that the Law Commission has listened to the criticisms that we and others put forward on the broader operation of the current system. Their recommendation for a wider review is needed now more than ever. The current system doesn’t go far enough: it is blunt, restrictive and disproportionate.
“These shortcomings were recognised by the High Court in January 2016, and we urge the government to withdraw their appeal and instead get to work in undertaking this wider review and finally establishing a proportionate disclosure system that is transparent, clear and fair. This will not only benefit those with old and minor cautions and convictions to move on positively with their lives, but it will also contribute towards building a fairer and more inclusive society”