News & Insights

More changes to criminal record checks

Ian Machray, a partner in the FSP employment team, looks at the changes being made to criminal record checks.

Disclosure and Barring Service

Last December, the Criminal Records Bureau (which used to carry out CRB checks) merged with the Independent Safeguarding Authority to become the Disclosure and Barring Service.  One of the consequences is that CRB checks are now called DBS checks.

Online Update Service

The process for checking employees’ criminal records remained similar but from 17 June employees will be able to sign up to an online Update Service on an annual basis currently at the cost of £13 per year.  This means that an employee’s DBS certificate will be “portable” to new jobs of the same type requiring the same level of DBS check.  In carrying out a check, the employer will either be told that the certificate is still current and valid or that a new check is needed as new information has been added since the original certificate was issued.

The cost of subscribing to the Update service will be borne by the employee but HMRC are going to provide tax relief where the employer reimburses the cost.

Recent legal challenge to the current scheme

The Government changed the law relating to criminal record checks last year in an attempt to achieve the correct balance between protecting vulnerable members of the public and safeguarding the liberty and privacy of employees.

However, the Court of Appeal recently decided, that even after these changes, Parliament has still not found the right balance.  The case concerned 3 individuals:

  • a 21 year old man (T) who had applied for a part time job at his local football club and subsequently enrolled on a sports studies course at university. On both occasions, his criminal records check revealed 2  warnings which he had received when he was 11 in relation to stolen bicycles;
  • a 40 year old woman (JB) who wanted to work in the care sector but was prevented because of a caution she had accepted 9 years previously after stealing a packet of false nails (inadvertently according to her); and
  • a woman (AW) who wanted to serve in the Army but at the age of 16 had helped her boyfriend with a “car-jacking” during which her boyfriend had fatally stabbed the driver. She was convicted of manslaughter and robbery which are such serious offences that they will never be “spent”.

All of the individuals claimed that the ‘blanket disclosure’ of convictions as well as cautions and warnings unjustifiably interfered with their right to a private life under the European Convention on Human Rights.  The court agreed in T and JB’s cases as the offences were minor and committed several years earlier.  In T’s case the court also took the fact that he was only a child at the time of his cautions into account.  Although AW was also a child at the time of her offence, her claim was not upheld as her offences were so serious.  Parliament had drawn a line between offences which can be spent and those which cannot (as they are too serious) and there is no blanket policy of disclosure in relation to such offences.

In response, the rules were changed from 29 May 2013 so that old and minor convictions will no longer be disclosable on DBS certificates. The point at which a conviction will be removed from a DBS certificate will depend on the type of offence and whether the person was a child or adult when the offence was committed/caution received.