12/07/16

Disclosure and Barring Service (DBS) Checks

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Kangs Solicitors discusses a recent successful appeal of the decision of a Chief Constable of Police to include information about a client on an Enhanced DBS certificate.

What is a DBS? | Solicitors for DBS

A DBS certificate is what was formally known as a Criminal Records Bureau (CRB) check.

Supplied by the Disclosure and Barring Service, DBS certificates are generally requested by and disclosed to, employers seeking to carry out background checks of prospective employees.

There are three types of checks;

  1. Standard Certificate
  • This is the most basic check that can be carried out and will contain information relating to spent and unspent convictions, cautions, reprimands and final warnings.
  • This is the most common form of DBS certificate requested.
  1. Enhanced Certificate
  • This includes the same as the standard checks plus any additional information held by a police force that’s reasonably considered relevant to the role being applied for.
  1. Enhanced with List Checks
  • This is similar to the enhanced check but includes a check of the DBS barred list.
  • The barred lists contains a list of people who are deemed to be unsuitable for working with children and vulnerable adults.

Where do things go wrong?

It is clear that if someone has a caution or conviction, this will certainly be present on a Standard Certificate and so long as the content is true and accurate, it often causes very little difficulty.

The main area of contention, however, is when there is information contained within an Enhanced DBS certificate relating to what may be no more than an allegation.

On Enhanced Certificates, there is a section entitled ‘other relevant information’ which can be completed by the Police when completing the form.

Other relevant information’ can and does include ‘non-conviction information’ and ‘police intelligence’.

The reality is that ‘other relevant information’ can include;

  • Fixed Penalty Notices;
  • Findings of Innocence;
  • Acquittals;
  • Cautions and Convictions of those you with live;
  • Other Police intelligence.

Information relating to an allegation or even in relation to an allegation which you have been charged, stood trial for and then acquitted, can be contained on an Enhanced Certificate.

Such information can clearly have serious consequences for your prospective employment opportunities if your certificate contains ‘other relevant information’.

The decision as to whether to disclose local police information is made by the Chief Constable in the relevant Police force area.

Challenging the content of an Enhanced Certificate | DBS Solicitors

If you disagree with the content of the ‘other relevant information’ which has been disclosed by the Police, you have the right to appeal the Police authorities decision through an independent monitor who will consider the content of the ‘other relevant information’ submitted by the Police.

The Police will first be given the opportunity to reconsider their decision to include the information following any representations made on your behalf.

The ‘other relevant information’ can only be challenged on the grounds that:

  1. The information contained within the Enhanced certificate is not relevant; and/or
  1. If the information is relevant, it ought not to be included within the Certificate.

DBS Case Example | Kangs Solicitors

Kangs were instructed by a client who had applied for a job with a Government Agency.

Due to the nature of the work, having successfully passed the interview stage, the Government Agency requested an Enhanced DBS Certificate.

Following receipt of the Enhanced Certificate, our client was concerned to see that information had been inserted into the ‘other relevant information’ box by the Chief Constable of Police.

The information related to the fact that our client was the subject of an on-going fraud investigation.

Our client had not been charged with any offence yet information was contained within the DBS Certificate that would have had serious consequences for the client’s employment prospects.

Following extensive submissions through a detailed application of the relevant European and National Law, Kangs Solicitors argued that the information disclosed by the Chief Constable of Police in the Enhanced Certificate was:

  • not relevant: and
  • if it was relevant, it ought not to be included within the Certificate as it interfered with our clients Article 8 Right to Private Life under the European Convention on Human Rights.

Following our submissions, our appeal was upheld and the Chief Constable of Police removed the ‘other relevant information’ from the Enhanced Certificate.

Our client now has a clean Enhanced Certificate.

How can we help with DBS Checks? | Kangs Solicitors

Kangs Solicitors have a proven track record in challenging the decisions of Police authorities to include information on Enhanced DBS certificates.

There is a vast amount of case law in this area, both from the European Court of Human Rights and our own UK National Courts.

Consequently, if you wish to challenge the content of your Enhanced Certificate, it is imperative that you choose a lawyer with a strong understanding of the law in this area.

If you seek to challenge the content of your DBS Certificate, then please contact us.

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