The Disclosure and Barring Service (DBS) provides employers with information to assist them in assessing the suitability of prospective employees, service providers or volunteers for certain roles.
Prior to 2013, a standard or enhanced DBS would contain all convictions and cautions on an individual's criminal record regardless of whether they were spent or unspent. The DBS filtering rules were introduced in May 2013 which resulted in certain minor criminal convictions being filtered out of DBS disclosure (they became known as protected convictions). The filtering rules stated that a conviction will always be disclosed where an individual had two or more convictions, regardless of the age of those convictions or whether they were relevant to the employment being applied for.
More serious offences, including violent and sexual offences, are known as 'relevant offences' and are always disclosed in the DBS disclosure certificate. This has not changed.
The four individuals (the Respondents) at the centre of these proceedings had all been convicted or received cautions for relatively minor offences which took place several years ago. Due to the nature of the filtering rules, these offences were continually included in their DBS certificates, which they said significantly impacted their ability to obtain a job. They claimed that this was a violation of their right of respect to a private life as provided for by Article 8 of the European Convention on Human Rights.
The Court of Appeal held that the filtering rules were incompatible with Article 8 as they routinely required the disclosure of multiple convictions, and juvenile reprimands. This decision was appealed to the Supreme Court (the Court).
The Court found that disclosing all convictions where an individual has committed multiple offences is not a necessary or proportionate way of disclosing criminal records. This is because they apply, irrespective of the nature of the offence, their similarity, the number of occasions involved, the time separating the offences and their relevance to the role applied for.
It was found that disclosing all offences does not necessarily indicate that an individual carries a greater risk of reoffending and that a more proportionate response is required.
In relation to Juvenile Cautions, the Court found that the filtering rules required the disclosure of warnings and reprimands, which were issued to young offenders as an alternative to convictions, without their consent or a fair hearing. Those cautions were issued so as to avoid imposing a criminal conviction on a young person and thereby avoid leaving a lasting negative impact on the individual. The disclosure of these warnings in a DBS certificate was therefore inconsistent with the purpose for which they are issued.
As a result the Court upheld the previous declarations of incompatibility which had already been made.
The filtering rules will now be amended to remove the requirement for multiple offence, and youth cautions, to be automatically included in DBS disclosures. Employers should be assured that convictions will still be shown in an individual's DBS certificate when they are relevant to the role applied for, which is particularly important where individuals are employed to work with children or vulnerable adults.
This decision strives to strike a balance between the need to allow and promote the rehabilitation of offenders and the protection of the public. Employers remain lawfully entitled to reject an application on the basis of information disclosed in a DBS certificate. However, this case reminds employers that a criminal record should not necessarily be a bar to employment and that employers should strive to act fairly.