Criminal records checks



Below is a list of the main types of criminal records check, carried out by the Disclosure and Barring Service (DBS), or Disclosure Scotland. The process involves a search of the Police National Computer:


• Basic check: A basic check is a criminal records check which an individual can request for themselves. An employer is allowed to ask a job applicant to request a basic check. It can be applied for in connection with any employment or volunteer position and will reveal unspent convictions and conditional cautions. 



• Standard check: A standard check reveals spent and unspent convictions and unfiltered cautions. It can only be used for jobs that are listed in the Exceptions Order to the ROA 74. These include doctors, barristers, traffic wardens and probation officers. 



• Enhanced check: An enhanced check reveals spent and unspent convictions and unfiltered cautions. It can only be used for jobs listed in the ROA Exceptions Order and the Police Act (Criminal Records) Regulations. These include jobs working with children and vulnerable adults and taxi driving licences. The application is made by the applicant and counter-signed by a “registered person”. 



• Children’s Barred List and Adults Barred List check: A check carried out when someone applies to work in a “regulated activity” with children or adults. An employer or volunteer manager who knowingly employs someone named on this list in a regulated activity with children or adults will break the law, as will the barred person who applies for such a role.



Questions about criminal records should only be asked once a job offer has been made. The offer can be made conditional on a clear DBS check.



A standard or enhanced DBS certificate (both of which reveal spent convictions) is only seen by the prospective employer and the applicant. About four million checks are carried out each year. There is a DBS Code of Practice. It requires employers that carry out DBS checks to have a policy on employing ex-offenders which must be given to applicants on request, to warn candidates in advance of the potential impact of a criminal record on the recruitment and selection process for the role and to discuss with candidates the content of any disclosure before withdrawing any job offer. 


DBS certificates can be kept up-to-date using the government’s online DBS Update Service. 





Following recent changes to the law, some old, minor and irrelevant offences and convictions must be “filtered”. Filtering is the term used by the DBS to describe the process of identifying and removing from DBS certificates any convictions and cautions that should no longer be disclosed due to changes in the law. It does not mean that the conviction or caution is removed or wiped from the Police National Computer. Filtered offences must not appear on a Standard or Enhanced level DBS check and must not be taken into account by an employer. Employers must not ask about them and they do not need to be disclosed (R (T) v Secretary of State for the Home Department [2015] 1 AC 49).


In February 2019, the Supreme Court (SC) ruled that two important aspects of the current DBS regime are unlawful and must be changed (R (on the application of P) v Secretary of State for the Home Department [2019] UKSC 3), as follows: 


• The first is the rule that minor historic offences can never be filtered if an ex-offender has more than one conviction, regardless of the type of offence or whether they are related or close in time. The SC says that this is disproportionate and unlawful. 


• The second is the disclosure of youth cautions, which the SC has declared a breach of human rights law. This must stop, says the SC, because disclosing these cautions is contrary to their purpose, which is to encourage youth offenders to learn from their mistakes. 


Charity Unlock, who intervened in the case for the first time in its history, has welcomed the ruling as a step in the right direction in its campaign for wholesale reform.


It is a criminal offence to require a job applicant or existing worker to obtain a copy of their full criminal record using a data subject access request (see Chapter 15). Some employers were using this tactic to force applicants to reveal spent convictions.