The Disclosure and Barring Service, and the need for proportionality

Following the ruling in the Court of Appeal in R (P & Ors) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 321, handed down on 3 May 2017, the Government will now be forced to reconsider the current disclosure scheme in relation to the Disclosure and Barring Service (“DBS”).

A DBS request (formally Criminal Records Bureau (“CRB”)) may be made as part of a recruitment process by an employer. It enables checks to be made into information held on the DBS children and adults’ barred lists, along with any information held by a police force that is considered to be relevant with regards to the role being applied for. The system is considered a vital tool to ensure the safety of the public, with the necessity of those checks being highlighted by the Soham murder case, following a failure to identify Ian Huntley as a person who may pose a danger to young people in light of historical investigations into alleged sexual offences.

The criminal record checks scheme was amended by the Police Act 1997 (Criminal Records) (Amendment) Regulations 2013 to allow for the filtering of single convictions after 11 years (or five years and six months if the person was a minor when the offence was committed) for non-violent, non-sexual offences that did not lead to a custodial or suspended sentence. The sole purpose of this amendment was to lessen the persistent criticism that the DBS scheme was indiscriminate and inflexible in its approach irrespective of the factual circumstances. The 2013 Regulation served to ensure that disclosure should only take place when there was more than one conviction on an individual’s record.

Despite this amendment, the scheme continued to disproportionately affect the lives and career prospects of those with minor indiscretions in their past. The distinction between a single instance or multiple instances of petty crime, in practice, served as little more than semantic. Individuals engaged in the types of offences which formed the majority of cases under review would routinely be expected to have multiple entries on the database.  This common situation formed the basis of a series of joined challenges to the system, despite its apparent improvement.

In one of these cases, (R (P and A) v Secretary of State for Justice and others [2016] EWHC 89 (Admin); [2016] 1 WLR, it was held to be a breach of a human rights for the DBS to prohibit an individual from taking a part-time role with a local football club over police warnings for the theft of two bicycles when he was 11 years old. A further case concerned P, who suffered from mental health problems. P received multiple cautions in 1999 for shoplifting and later was convicted of a bail offence having missed a court date. The applicability of the revised DBS rules still prevented her from getting employment as a teacher.

The Court of Appeal case referred to at the start of this article concerned linked appeals from multiple cases on this subject: R (on the application of Kroll) v Commissioner of Police the Metropolis [2014] EWHC 4552 (Admin), R (on the application of W) v Secretary of State for Justice [2015] EWHC 1952, R (on the application of G) v Chief Constable of Surrey [2016] EWHC 295 (Admin) and R (on application of P) v Secretary of State for Justice [2016] EWHC 89 (Admin).

The Court of Appeal ruled in R (P & Ors) v Secretary of State for the Home Department & Anor that the “multiple conviction rule” was disproportionate on the facts in this case and rejected the Government’s argument that it would not be feasible to review the mechanism for testing the proportionality of the disclosure on a case-by-case basis.

This decision was appealed by the Government. The Court of Appeal upheld the High Courts’ decision, meaning that the Government will now be required to redouble their efforts in ensuring the DBS system achieves its aims in a proportionate and transparent way.

The fundamental objective of the DBS system, to ensure employers make safe recruitment decisions which protect vulnerable adults and children from contact with those who may pose a risk, must not serve to also blight those with minor irrelevant misdemeanours. Any new system must establish a logical framework for drawing distinctions between children, young people and adults and the Government must look to implement a system which caters for a wider discretionary review of individual applications to ensure that only the most relevant information is ultimately shared with a prospective employer.

An independent review scheme introduced in Northern Ireland in March 2016 is a model which could be adopted. Under this scheme, information will not be disclosed in circumstances where the independent reviewer is satisfied (a) that disclosure would be disproportionate and (b) that non-disclosure would not undermine the safeguarding or protecting of children/vulnerable adults or pose a risk of harm to the public.

The system in Northern Ireland addresses a wider range of circumstances when considering applications, ranging from the nature of the position that is being applied for, how many offences fall to be disclosed, and (if more than one) whether they arose out of a single court hearing.

The resolution for the government, it would appear, may be as simple as widening the discretionary basis available to the DBS. As Sir Brian Leveson explained in his judgment; “There is nothing [in this judgment] that requires the adoption of a bespoke system providing an individual right of review; devising a filter system which ensures that cases that are at the margin and no longer require disclosure may be entirely feasible.”

What is required is an approach to disclosure that assesses the proportionality of the information being disclosed with regards to both its necessity and the purpose that it will serve when provided to the employer. This should be balanced with ensuring that disclosure is still made where it is a true reflection of behavioural patterns of an applicant which may need to be brought to an employer’s attention in order to safeguard the most vulnerable in society.