Understanding the Impact of DBS Check Changes

On 28 October 2023, the most significant and complex changes ever made to criminal record disclosure laws in England and Wales came into force.

There are more than 12.3 million people with criminal records in England and Wales, over 25% of the working population, so these changes are of great importance to our society. They affect individuals in terms of what they have to disclose, and organisations about the criminal record information they receive.

However, whilst the reasons behind the changes appear well-intended - the government actively promotes the integration and reintegration of prison leavers back into the workplace and that should be rightly lauded - many organisations should be very concerned to learn that they now receive significantly less criminal record information than ever before about serious and relevant offences.

Now more than ever, employers will need to be more reliant upon all the information they gather within any recruitment process to determine the suitability of the applicant for the role they have applied for including a range of robust vetting checks. This may include a focused comprehensive application form or online process, values-based recruitment, criminal record self-declaration, and sharing detailed effective references.

The changes to the Rehabilitation of Offenders Act 1974 (ROA) were limited to reduced disclosure periods for custodial and community sentences. All other disclosure periods for other sentences remained the same as they were.  This has resulted in unintended consequences within the government’s changes which has resulted in many people convicted of less serious offences having to disclose their offences for much longer when compared to those receiving community or custodial sentences for serious offences.

For example, an adult convicted of a minor motoring offence (e.g., speeding, or talking on a mobile phone) either at Magistrates Court or by receiving a Fixed Penalty Notice (FPN) still has to disclose their conviction for 5 years which seems grossly inequitable when compared to the 2-year period that someone sentenced to 12 months in custody now has to disclose.

Case study scenario:

Person A received a fine/FPN for motoring conviction on 28th August 2021. This conviction may become spent on 28th August 2026.

Person B was sentenced to 12-month custody for sexual assault on 28th October 2021. This conviction would have become spent after 2 years on 28th October 2023, when the changes came into force.

These changes seem baffling when statistics show that only 64,000 of the 1 million people convicted in 2022 received a custodial sentence, yet the 642,000 convicted of motoring offences (Source MoJ: Dec 2022) – and 922,000 individuals receiving FPNs for motoring offences (which attract an endorsement) would have to disclose for 5 years (Source: Home Office Dec 2021)

In addition, there were occasions where the employer previously carried out a standard or enhanced (higher-level) Disclosure and Barring Service (DBS) check for a sensitive role did not reveal the applicant or existing member of staff’s unspent criminal convictions.

Not many organisations know that the changes to Part V of the Police Act - commonly known as the DBS filtering rules - which also came into force on 28th October 2023 were designed to remove this anomaly so that all unspent cautions and convictions should now appear on higher-level DBS checks.

Many employers for sensitive roles recheck staff every three or five years. There may be some instances now where criminal record information appears on the new DBS certificate that was not previously disclosed on a higher-level DBS check issued between 28th November 2020 and 28th October 2023.

When considering how to respond to this important issue, some factors employers should determine, include:

• Were they asked to declare their criminal record when they applied for the role?
  

• Were they asked the right questions when they applied for the role?  

• Were they signposted to effective guidance on how to answer any questions about their criminal record correctly?
  

• If they did not disclose their criminal record upon application – was it due to genuine error or an attempt to deceive?
  

• Does the member of staff now have employment rights?  

• Does the criminal record information that has been disclosed on the updated certificate indicate they may present a risk in the role they are employed in?

If you want to be able to confidently navigate these complex changes and make informed decisions about applicants or existing staff, students, or volunteers with criminal records - get in touch.

Dominic Headley

#unspentconvictions #DBSchecks