The filtering system should, principally, be an automatic process that gives clarity and certainty. We have made recommendations on how automatic filtering rules should be amended. However, any automatic rules, without review, will affect people on the margins, which is why a discretionary process to establish a more nuanced approach needs to be built into the system.
The National Police Chiefs Council (NPCC) support chief officers having responsibility for applying tests of relevance and proportionality as they do with non-conviction information. Building on the existing quality assurance framework for enhanced checks, the police could assess individual DBS applications and apply a discretionary filtering process, determining whether unfiltered convictions/cautions are relevant to the role (and disclosed) or not relevant (and not disclosed)
The discretionary filtering process should be subject to independent review by the Independent Monitor, receiving appeals from applicants that believe information is no longer relevant and so shouldn’t be disclosed – decisions could apply to future disclosures, or just the current disclosure.
The Home Office would need to undertake an assessment of the costs of introducing a discretionary filtering process, which it has yet to do. The current DBS system is financed by employers – who may pass the cost on to applicants. In addition to the fixed fee charged by the DBS (£23 for standard, £40 for enhanced), employers pay an additional cost if they use the services of an umbrella body, usually between £10 and £25. A small increase in the fixed cost of DBS checks could cover the additional resources of an expanded role for the Independent Monitor.
The DBS filtering rules are just one element of the broader disclosure regime which, in our view, needs fundamental reform – including overhaul of the Rehabilitation of Offenders Act 1974, including changes to the length of time after which convictions can become spent (for example, enabling sentences of over 4 years in prison to become spent).
Examples of review mechanisms already operating in the UK
- In September 2015, the Scottish Government introduced a filtering system for old/minor convictions that allows those with a spent conviction for an offence on the ‘rules list’ to apply to have this information removed from their disclosure certificate.
- In March 2016, the Department for Justice in Northern Ireland introduced an opportunity for independent review. The Independent Reviewer is also the Independent Monitor in England and Wales.
The Independent Monitor could also consider applications to have records ‘sealed’ from disclosure. Sealing processes exist in several jurisdictions and have been advocated by David Lammy in his 2017 review of disproportionality in the criminal justice system.
Read our briefing on filtering and discretionary disclosure
Learn more about why this change is necessary