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05 Jul 2013

Criminal Record Checks – recent changes to the system

The CRB system has been subjected to a recent overhaul. On 1 March 2013, the Independent Safeguarding Authority (ISA) and the Criminal Records Bureau (CRB) were replaced by a single body; the Disclosure & Barring Service. Going forward, the DBS will be the only organisation undertaking checks and barring decisions.

The three categories of checks remain; 1) Standard certificate, 2) Enhanced certificate (required for ‘regulated activity’ i.e. work with children or vulnerable adults), and 3) Enhanced with a barred list check. In September 2012, the definition of ‘regulated activity’ was amended; it no longer includes, for example, people with access to sensitive information such as social services records.

The barring list comes into play when a caution or conviction is received for one of the relevant offences, and, subject to the consideration of representations where permitted, may result in  barring from working in regulated activity with children or vulnerable adults. The barring list is therefore a consideration which should be had right from the outset of an allegation, as it may affect the advice given to a client at the police station, with regards to whether a caution should be accepted.

In the event that an enhanced check is undertaken, a DBS certificate status will change as a result of ‘any new relevant police information’. This may include arrests which result in no further action (‘NFA’) being taken. The irony is that those working in ‘regulated activity’, i.e. with children and vulnerable adults, are those most exposed to the risk of false allegations from the subjects of that activity. Teachers, carers, Scout leaders and similar must therefore be alert to the fact that not-only does their regular contact with children and vulnerable adults mean that they may be obvious targets for wrongful allegations, but that in the event that they are arrested but not prosecuted, their current and potential employers will also be alerted to the facts of their arrest.

This highlights the need for defence solicitors to always be alert to the ‘necessity’ requirements under the updated PACE Code G (in force since November 2012) in relation to the arrest of clients; if the arrest is not necessary then a voluntary caution interview must be proactively pursued.

At any stage of the disclosure process the applicant may be invited to make representations in respect of the disclosure of certain information. The applicant’s response then becomes a factor in the disclosure decision-making alongside the other information. This does at least go some way in mitigating the potential damage done through the disclosure of an arrest then NFA. It is likely however that the facts surrounding the allegation will be the very points on which it is viewed relevant; allegations by children and vulnerable adults frequently centre on violence or sexual offending. It would be difficult to imagine that there are many arrests following such an allegation which would not be deemed relevant for disclosure.


The DBS Update Service

A further change was implemented by way of the Update Service, brought in on 17 June 2013. One main criticism of the old CRB check was that it would only provide a momentary check; employers would have no assurance about the state of their employee’s records three or six months down the line. Registered bodies will therefore welcome the fact that they can now simply log in online to be alerted to changes to a DBS certificate. Once they have been alerted to a status change, a new certificate must be requested.

One significant change in the service is that, in the first instance, the registered body would no-longer receive the certificate from the DBS, but would have to instead ask the applicant for a copy. An applicant’s failure to provide a new certificate (which has been requested as a result of a change in DBS status) within 28 days could however allow the registered body to request a copy of the certificate directly from the DBS.

As with the CRB check, an applicant’s consent is still required for a registered body to access the Update Service. This will be less straightforward than it was previously however as registered bodies will, in theory, continue to hold the details to an applicant’s account. It is therefore important that an applicant keeps a clear record of when consent is granted and withdrawn, and monitors his account to see which bodies have accessed his account.

Another potential issue with this service is in respect of mistake or information which is later amended. It is possible that the Update Service could alert the registered body to the existence of a change in DBS status before the applicant has had the opportunity to provide representations on the matter. In the event that the applicant is successful in arguing that the new information is not relevant (or even, an error in its entirety) and so should not be disclosed, his DBS certificate will remain unchanged. The registered body will have already been alerted to the presence of some status-altering information though, potentially causing doubt regarding the integrity of that applicant. The damage has therefore already been done to the applicant / employer relationship.

Whilst many welcome this service for the potential of a swift and costly service, each applicant should remain alert regarding the condition of his own DBS status.

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