Criminal record disclosure disputes
For many, a criminal allegation is a very stressful time and the best outcome is when no charge is laid or the case is not proceeded with at court.
An acquittal can be an even greater relief following the ordeal of a trial before magistrates or a jury at the Crown Court. In some roles, however this may not be the end of difficulties. When you apply for certain jobs or certain roles, a ‘criminal record certificate’ may be requested.
There are different levels of criminal record certificate including:
- A basic criminal record certificate.
- A standard criminal record certificate
- An enhanced criminal record certificate (with or without barring information)
A basic criminal record certificate will show any unspent convictions and generally reflects what would need to be disclosed on an application form if details of unspent convictions are requested.
A standard criminal record certificate can only be obtained for certain positions exempted from the Rehabilitation of Offenders Act 1974. These generally involve positions of trust where disclosure of spent convictions need to be declared. The certificate will therefore show both spent and unspent convictions but is subject to filtering provisions which will weed out offences after a period of time unless:
- They appear on a list of offences which will never be filtered
- or a period of imprisonment has been imposed for an offence
An enhanced certificate can be required in activities or jobs which involve contact with vulnerable groups such as children or vulnerable adults.
The certificate will provide details of both spent and unspent convictions as above and additional information that the police consider is relevant to the position that you are applying for AND ought to be disclosed i.e. is necessary.
This may include information about an acquittal or an allegation that has been made against an individual. It may also reflect concerns about incidents involving you (which may have arisen during contact with agencies such as social services, mental health services or other public bodies). An enhanced certificate may also contain information on whether you are subject to barring from working with children or vulnerable adults.
Enhanced Certificates affect people seeking employment or a voluntary position in a regulated activity in contact with vulnerable adults or children. An enhanced criminal record certificate could raise these issues and still prevent opportunities for employment or activity despite no conviction existing. Officially, it is a matter for individual employers to consider the information on a certificate and come to an informed decision but the courts have accepted that an entry on a certificate can be a killer blow to any job application.
Our specialist disclosure and barring service dispute team aim to deal with matters following the conclusion of both criminal investigations and other forms of alleged incidents involving safeguarding. They have been involved in a number of scenarios in which they have assisted individuals including:
- Factual disputes on the proposed information being disclosed
- Disputes about the necessity or relevance of information being disclosed
- Disputes about the legality of disclosure of information
- Barring referrals and reviews
The team have been involved in leading cases which have developed the law in this area including two cases at Supreme Court level and offer a bespoke service to clients depending upon their specific needs and means. For advice on disclosure disputes contact our specialists on 0333 009 5517 or you can complete an online enquiry form and a member of the team will contact you directly.
Criminal record disputes - information contained on the certificate
When a DBS certificate is requested, the information that is reflected on it comes from the Police National Computer and/or local police records.
On a basic and standard certificate, this will reflect the record of previous convictions and any cautions which have been administered to the applicant.
Sometimes however, errors occur and Stephensons have acted for clients whose details have been provided fraudulently to the police when an individual has been charged or cautioned.
The team have also acted for clients in cases where the incorrect information has been entered onto the PNC resulting in the non-filtering of an offence which should otherwise have resulted in a clear certificate.
The team can advise on the dispute resolution procedure and any subsequent claim for damages arising from the loss of employment or distress caused.
Criminal record disclosure - representations against disclosure
- On an enhanced criminal record certificate, additional information may be disclosed by a Chief Police officer.
- Representations should be sought by the disclosure unit of the police force, before information is disclosed, but this may not be necessary in situations where previous disclosure of a similar nature has occurred and
- Representations were already made and considered
- No representations were made and the previous disclosure was not challenged.
- It is therefore important to make representations when offered, as a failure to do so could be taken as acceptance of the proposed disclosure and negate any opportunity of future response unless specifically requested by the individual.
- Once representations have been made, the chief officer or their delegate will make a decision on what information to disclose.
- If this is not satisfactory then a dispute resolution procedure can be followed with the DBS.
Criminal record disclosure - disputes and applications to the independent monitor
A dispute may be raised with the Disclosure and Barring Service regarding information provided on an enhanced criminal record certificate. This needs to be done within three months of the disclosure.
The dispute can raise concerns that:
- The information is factually incorrect
- The information does not relate to you
- Or the Information should not be disclosed
In respect of the first two issues, identity checks will be undertaken and if the police are satisfied thee has been an error, then an amendment will occur.
A dispute relating to whether information should be disclosed will lead to initial reconsideration by the police, and then referral to the Independent Monitor.
The Independent Monitor is appointed by the Home Office to consider disputes and provide an independent review of the disclosure decision, determining whether disclosure should occur and if so whether the proposed format is acceptable.
The Independent Monitor will receive representations to enable them to undertake a review. The decision may be challengeable by judicial review.
Record deletion applications to the National Police Chiefs Council
The Record Deletion application procedure was brought in to replace the previous ‘Exceptional Case Procedure’ and followed the coming into force of the Protection of Freedoms Act 2012.
Police forces have a duty to only retain relevant and necessary information under both Data Protection and Human Rights legislation. This applies to information held about individuals and biometric data including DNA and fingerprints.
The process allows an individual or representative to apply for records held on the PNC to be deleted at the discretion of the Chief Officer of the relevant police force.
Unfortunately, a conviction or finding by a court is not currently susceptible to deletion under this process because this is a decision that has been made by the Court and not the relevant police force.
It is understood that this is currently being reviewed and the policy may be amended following a European Case in order to comply with General Data Protection Regulations and the Human Rights Act
Under the current policy you may apply if:
- You have been issued a Penalty Notice for Disorder (PND)
- Issued a Final Warning as a juvenile
- Arrested but not charged and/or convicted of a minor offence (adult or juvenile)
- Issued a Caution or Conditional Caution (as an adult)
- Issued a Youth Caution (as a juvenile)
- Issued a Reprimand (as a juvenile)
- Arrested and charged with a qualifying offence* (serious offence) but you were not subsequently convicted (adult or juvenile)
- Arrested but not charged for a minor offence and given a Discontinuance (adult or juvenile)
But not if you have been:
- Convicted at Court (as an adult or juvenile)
- Issued a Conditional Discharge or an Absolute Discharge in Court
- Arrested by Police Service Northern Ireland or Police Scotland (separate jurisdictions)
- The record is held for Police Intelligence purposes
- The arrest event is still under investigation
- You were charged with but not convicted of, a qualifying offence, and biometrics have been approved for 3 year retention by Biometrics Commissioner (adult or juvenile)
- You were charged with but not convicted of, a qualifying offence, and biometrics have been approved for 2 year extension by District Judge (adult or juvenile)
Grounds for record deletion
An application for record deletion is considered by a Chief Police Officer on a discretionary basis using professional judgment based on the information which is presented or available.
All applications have to be considered individually and with regards to the facts, Chief Officers are prohibited from setting specific retention periods for types of information or groups of people.
The criteria or grounds for record deletion are not set in stone, but examples are provided by the National Police Chiefs Council:
No Crime. Where it is established that a recordable crime has not been committed. For example, a sudden death where an individual is arrested at the scene and subsequently charged, but after post mortem it is determined that the deceased person died of natural causes and not as a result of homicide.
Malicious/False Allegation. Where the case against an individual has been withdrawn at any stage, and there is corroborative evidence that the case was based on a malicious or false allegation.
Proven Alibi. Where there is corroborative evidence that the individual has a proven alibi and as a result s/he is eliminated from the enquiry after being arrested.
Incorrect Disposal. Where disposal options are found to have been administered incorrectly, and under the correct disposal there would be no power to retain the DNA profile. In such circumstances, consideration should be given to deleting the DNA profile, fingerprints and the PNC record. Deletion in these circumstances could also be the product of review within the criminal justice process, for example, the withdrawal of a caution.
Suspect status not clear at the time of arrest. Where an individual is arrested at the outset of an enquiry, the distinction between the offender, victim and witness is not clear, and the individual is subsequently eliminated as a suspect (but may be a witness or victim).
Judicial Recommendation. If, in the course of court proceedings, a Magistrate or Judge makes a recommendation that an individual’s DNA and fingerprints should be deleted. On such occasions, due consideration should be made in relation to the deletion of the PNC record.
Another person convicted of the offence. If there is the conviction of another person for the offence then the Chief Officer may wish to consider the deletion of the biometric information and PNC record, providing there is no possibility of there being more than one offender.
Public Interest. Where there is a wider public interest to do so.
In our experience, this last example can and has been successfully used to seek compliance with Data Protection and Human Rights legislation.
Police disclosure under common law
The Police have powers to disclose information to third parties where there is a ‘pressing social need’ to do so usually based on risk. It allows a police officer to disclose information to a third party such as an employer, organisation or domestic partner in order to make them aware of a risk to them or their operations posed by the subject matter.
DBS procedures involving barring and disclosure are the primary means by which such risks are managed, however the police maintain a power outside of the authority of the Police Act 1997 and the Safeguarding Vulnerable Groups Act 2006, to share personal sensitive information with third parties where a “pressing social need” can be established.
This will normally involve identification of a significant risk which there is a need to address.
The procedure is not meant to circumvent the DBS disclosure scheme, but rather compliment where there is a need to do so. Similar considerations should be made to those when information is being proposed for disclosure on an enhanced criminal record certificate.
Whilst the guidance on the use of the power recognises the importance of proportionality and need to seek representations in some cases, the urgency of disclosure and immediacy of risk is likely to be the key factor. Therefore short timescales may be provided to respond requiring immediate legal advice.
Any decision to disclose sensitive personal information has to consider obligations under the General Data Protection Regulations, Human Rights Act 1998 and the Rehabilitation of Offenders Act 1974.
The guidance moots that the power will be used when information comes to light perhaps during the course of a criminal investigation, however our experience is that the power is used in much wider circumstances when the immediacy of risk may be questionable.
Our team can advise on the necessity of disclosure and make representations where necessary. The team have also successfully sought damages for inappropriate disclosure leading to loss on behalf of clients.
How we have helped our clients
Stephensons acted in the leading case of T v Chief Constable Greater Manchester which resulted in changes to the law on criminal record disclosure. This meant that minor offences would no longer be automatically disclosed forever when filtering was brought in.
Mike also acted for A in the filtering appeals cases which resulted in further changes to the Criminal Records disclosure procedure and the introduction of filtering for multiple old and minor offences.
The firm continue to act on behalf of AR who challenged the disclosure of an acquittal for a serious offence on a DBS certificate. The Supreme Court decided that the disclosure of information concerning the acquittal did not breach AR’s right to privacy but did express concerns about how the system operated and how information may be used. On the instructions of AR, an application has been lodged with the European Court of Human Rights and determination of admissibility is awaited.
Mike Pemberton has recently acted on behalf of a client who received a caution for possession with intent to supply a number of years ago. This caution would not be filtered due to its nature, but Mike successfully applied to the NPCC for a record deletion on the basis that its continued disclosure breached Article 8 of the European Convention on Human rights. After considering the representations the police force agreed to delete the information, meaning that the caution would no longer be disclosed on an enhanced or standard criminal record certificate. This provided the client with reassurance that future efforts at career progression would not be hampered by a single incident which took place when they were younger and lead a different lifestyle.
Mike Pemberton recently acted on behalf of a client who received a minded to bar letter from the DBS following acceptance of a caution for neglect in a role in a care home. Representations were provided which set out the circumstances in the home at the time of the alleged incident and reflected on the additional training which had been undertaken since that time. The fact the client had been indirectly involved in the alleged neglect was also highlighted. The representations were considered by the DBS and a decision was made not to bar the client from working with vulnerable adults in the circumstances of the case.
Mike has made successful representations against barring on behalf of a medical professional who had allegations made against her by a foster child. He subsequently successfully challenged disclosure of information relating to the alleged incident on an enhanced DBS certificate, enabling the client to seek re-employment in her profession following clearance by the regulatory body.
Mike has assisted a medical professional whose child’s tragic death lead to a criminal investigation and subsequent trial. Expert evidence at trial lead to a not guilty verdict, however information about the acquittal was proposed to be disclosed on an enhanced criminal record certificate which would have led to a job offer being withdrawn on the basis of a trust policy that a clear DBS certificate was required. Mike made a successful dispute resolution procedure application against disclosure of the information on the basis of the expert evidence that had been presented and failure to offer the opportunity of representations against disclosure. The application was accepted, leading to removal of the information and a clear DBS certificate allowing employment to commence.