Background criminal record checks are more common in the UK today than ever before. Highly publicised cases and fear of litigation have combined to encourage employers advertising an ever increasing range of jobs to ask for one of the three tiers of check. While this is understandable, and some would argue that it means the public are safer now than at any time in the past, not all employers use the checking system properly. It should not be a way of preferring one candidate over another, for example. There are strict rules governing what checks an employer can ask for, and what they cannot. Filtering is an important part of this process.
Spent / Unspent Convictions
A major issue pertaining to the details revealed in an individual’s criminal record check is that of spent and unspent convictions. This is in line with the provisions of the Rehabilitation of Offenders Act (ROA) 1974. The UK’s Police National Computer (PNC) actually holds a person’s criminal record until they die or reach 100 years of age. For the purposes of the ROA, however, most convictions eventually become “spent”. This means that a certain length of time has elapsed since the conviction, and / or appropriate sentences have been carried out.
In terms of the criminal record checks carried out by the Disclosure and Barring Service (DBS), spent convictions play a crucial role. The lowest level DBS check is “Basic”; this check is applied for by an individual, usually at the request of a potential employer. The only stipulation for requesting a basic check is that the applicant is 16 years of age or older; apart from that, there are no other reasons necessary. In fact, anyone can ask for a basic DBS check on themselves as a matter of interest. These checks show only any unspent convictions held on the PNC against a person’s name, assuming they can prove their identity.
Above the Basic check are Standard and Enhanced DBS checks. These are requested by employers or other registered bodies, and it is these which reveal unspent convictions, as well as any cautions, reprimands and / or final warnings a person has received at any time in the past. Standard and enhanced checks can only be applied for if the job or regular working environment complies with strict rules; this usually applies to teaching, health and social care posts. It is very important, however, that employers only ask for higher level checks because the job or workplace requires it; this area has been subject to unacceptable practices by some potential employers.
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To protect job applicants under the ROA, some convictions are filtered out of standard and enhanced DBS search results. This is the result of a judicial ruling in 2013, which found that a number of minor offences could be safely omitted from any DBS search once they were spent. These offences are now called “protected”. Before the ruling, any standard or enhanced search revealed any and all previous convictions on a person’s record; some employers had then used any such conviction as a reason to exclude the applicant from employment. Although within the letter of the law at the time, the convictions in question bore no relation to the job advertised. Also, as the convictions were spent, under the ROA they should have been viewed as never having happened.
Filtering, therefore, applies to protected offences in certain circumstances. An example is that someone who was convicted of a traffic offence, paid a fine and / or served any other relevant sentence, long enough ago for the conviction to be spent, will not be prevented from taking a job as a school teacher. As such, this approach identifies the original offence as being appropriate to disregard for all future job applications.
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On the other hand, certain offences are never protected. Crimes against vulnerable individuals, or others clearly listed under government guidance, will always show up on a standard or enhanced DBS check. Not only that, particular enhanced checks also allow disclosure of either the children’s or adults’ barred lists. These are registers of people who have been convicted of a proscribed number of offences, at any time in the past. In this case, the job being applied for will determine whether past convictions are relevant to future employment. Roles where the applicant will not regularly come into contact with relevant groups can still be applied for, as employers will not be able to ask for sight of either barred list.