The clock is ticking towards the 28th of October 2023 - a significant date for the Disclosure and Barring Service (DBS) checks, given the host of changes that are about to be implemented. In a follow-up to our July post, we delve into the details provided by the DBS to clarify how the changes to the Rehabilitation of Offenders (ROA) Rules and the amendment to filtering will impact Basic, Standard, and Enhanced DBS checks, emphasising three scenarios that illustrate the practical implications of these changes.
A Look at the Changes to ROA and Their Ramifications: Affecting Basic, Standard and Enhanced Checks
Custodial Sentences and Their Disclosure:
- Sentences of over 4 years, barring those that aren’t already excluded like life sentences or sentences of imprisonment for public protection, will have the potential to become spent.
- Notably, this leniency will not extend to individuals convicted for serious violent, sexual, or terrorist offences listed in Schedule 18 of the Sentencing Act 2020; their convictions will perennially be disclosed.
Amendments to Rehabilitation Periods for Certain Sentences:
- Custodial sentences of more than 1 year and up to 4 years will become spent 4 years post-sentence.
- Custodial sentences of up to 1 year will become spent 1 year post-sentence.
- Community Orders and Youth Rehabilitation Orders will be spent right at the order's end.
Modifying the Filtering Rules: Affecting Standard and Enhanced Checks
The alteration in filtering rules, ensuring all unspent records are invariably disclosed, could mean that some applicants will witness additional unspent records being disclosed under certain scenarios. Here’s a breakdown:
Scenario 1: Persistent Disclosure of Indefinite Restraining Orders
Marvin, serving as a support worker, undergoes a new Enhanced DBS check as necessitated by his employer’s policy of routine re-checks. Marvin’s last Enhanced DBS check was devoid of any disclosed information.
Contrarily, his new Enhanced DBS check brings to light a Restraining Order issued in 1998, which was not displayed in the prior checks.
Although the restraining order is over two decades old and not for a listed specified offence or a custodial sentence, it is ‘indefinite,’ meaning it remains unspent. The prior non-disclosure of the restraining order on Marvin's Enhanced DBS check was attributed to its age, the nature of the offence, and the non-custodial sentence. With the new rules, however, such orders will now invariably be disclosed due to their indefinite nature.
Scenario 2: Youth Conditional Cautions Coming to the Fore
Yasmin was recently handed a Youth Conditional Caution for an act of shoplifting.
Previously, Youth Conditional Cautions were not disclosed on Enhanced DBS checks. However, under the new regime, Yasmin’s caution, which will not attain ‘spent’ status for an additional 3 months, will feature on her DBS certificate.
This example demonstrates the stricter and more transparent disclosure framework, whereby even Youth Conditional Cautions are now brought into the limelight to ensure that all relevant and current offences are made visible to potential employers, enhancing safeguarding measures.
Scenario 3: The ‘Drag On’ Effect and Its Repercussions
Molly has been convicted of Theft and Common Assault in 2001 and received both a Community Order and an indefinite Restraining Order. She now applies for a position in a care home, necessitating an Enhanced DBS check which includes a check of the adults' barred list.
No information was disclosed in her previous checks despite the 2001 convictions.
Every detail from her 2001 conviction is now disclosed on Molly’s DBS check.
This change is attributed to the 'drag on' aspect of ROA rules - the indefinite Restraining Order ensures that all disposals at that sentencing also remain unspent. If Molly successfully applies to the court to have the Restraining Order removed, all records would accordingly become spent and thus, would not be disclosed in future DBS checks.
These scenarios articulate the detailed and nuanced shifts in the disclosure of offences in DBS checks, intricately woven with the new amendments. We’ll continue to guide you through the unfolding changes, ensuring you are well-equipped to navigate through them seamlessly. Should you encounter any particular scenarios or need additional clarification on the aforementioned ones, feel free to connect with us.
The following Frequently Asked Questions represent the issues most commonly raised with DBS so far.
Q1: Determining Which Rules are Applied to My Certificate
A: The date displayed on the DBS certificate is crucial to understanding which set of rules were applied. If the certificate is dated before 28th October 2023, the processing adhered to the previous rules. Conversely, if the date is on or post-28th October 2023, the new rules were employed.
Q2: Rationale Behind disclosing less information on Basic DBS Checks and changing the ROA again
A: The changes to the ROA and the lowered disclosure levels on Basic DBS checks are driven by a desire to facilitate ex-offenders in reintegrating into society and accessing employment opportunities more robustly. By providing them a path to move forward and contribute positively to the community, these amendments embody a rehabilitative approach.
Q3: Extension of New ROA Rules to Standard and Enhanced DBS Checks
A: The expanded application of new ROA rules to Standard and Enhanced DBS checks ensures all unspent convictions and cautions are consistently disclosed across all check levels. Previously, certain unspent records might appear on Basic checks but be omitted from Standard and Enhanced checks. This change aspires to simplify understanding of DBS products and guarantee that recruitment decisions are made with access to all pertinent information.
Q4: Impact of Changes in Scotland and Northern Ireland
A: The updates to DBS check rules are exclusive to England and Wales, and do not extend to Scotland and Northern Ireland. Any respective alterations or updates in these regions will be communicated by their relevant agencies—Disclosure Scotland and Access NI.
Upcoming Guidance and Communications
The details from the DBS, along with some modifications to current online guidance, will be made available on the DBS website before the 28th of October. The Ministry of Justice will also be updating the ROA guidance and modifying their ROA-calculator to align with these changes. Links to these resources will be shared as soon as they become available.
The nuances embedded in these changes are crucial in navigating the new DBS landscape effectively. Should you have any queries or require further clarification on any of the above points, please do not hesitate to reach out to us.