Criminal records and safeguarding

New rules to protect youth offenders

Employers can check the criminal record of someone applying for a role: this is a Disclosure and Barring Service (DBS) check. Scotland and Northern Ireland each have their own rules, which are not discussed here. In England and Wales, four types of checks can be made:

• A basic check which shows unspent convictions and conditional cautions
• An standard check which shows spent and unspent convictions, cautions, reprimands and final warnings
• An enhanced check, which includes a standard check as well as information held by local police that is considered relevant to the role
• An enhanced check with barred lists, which includes an enhanced check as well as checks whether the applicant is on the list of people barred from doing the role

A distinction is made between spent convictions (i.e. when the offender has not re-offended for a set period of time after the end of the sentence: this varies from one to seven years according to the type of sentence) and unspent convictions. Under the Rehabilitation of Offenders Act 1974 (‘ROA’) an applicant does not have to declare spent convictions, and employers are generally prohibited from requesting details of spent convictions.  There are various limits and exceptions to this general rule.

• For those aged 18 at the time of conviction, the time period before a conviction becomes spent is reduced by half (e.g. six months instead of one year; three and a half years instead of seven years).
• Custodial sentences of over four years, or public protection sentences are never spent.
• Specified offences (of a serious violent or sexual nature, or relevant to safeguarding children and vulnerable adults) will always be disclosed on a standard or enhanced check.
• Some occupations, offices and professions listed in the Exceptions Order 1975 are excepted.  Employers can request details of spent convictions when assessing an applicant’s suitability for said occupation, office or profession.  The list includes healthcare and legal professions, officers of the court and those who work/are in contact with children and vulnerable adults (e.g. teachers, social workers, youth club workers).

New rules and guidance were introduced on 28 November 2020 in England and Wales.  From now on: 

• Youth cautions, youth warnings and reprimands no longer have to be automatically disclosed on standard or enhanced checks. 
• The multiple conviction rule has been removed: each conviction must be considered individually.  There is no longer an automatic duty to disclose more than one conviction.

These measures aim to facilitate the reinsertion of offenders, especially youth offenders.  Employers should ensure that any questionnaire sent to prospective applicants fully complies with the current rules.  More generally, employers should be mindful of the General Data Protection Regulation (‘GDPR’) and Data Protection Act 2018 (‘DPA 2018’), as well as the Human Rights Act 1998 (‘HRA 1998’): all are relevant to the processing of sensitive information such as criminal records. This means greater emphasis on accountability and proportionality (e.g. requesting this information only at the end of the recruitment process, not keeping details of convictions, but only the outcome of the DBS check).

This article was written by BLM prior to its merge with Clyde & Co