What are the filtering rules for DBS Checks? 

In a previous blog, we discussed the difference between ‘spent’ and ‘unspent’ convictions and how they relate to a Basic DBS Check. However, this distinction is a little more complex when considering a Standard or Enhanced Check.

As with a Basic Check, unspent convictions will always appear on a Standard and Enhanced DBS Check.

In contrast, spent convictions will also appear on Standard/Enhanced Checks, unless they are ‘filtered’. The same also applies to cautions.

Standard/Enhanced DBS Checks

Standard and Enhanced DBS checks are only applied to specific roles. Standard checks are usually requested if someone applies for a job within certain professions, such as that of a solicitor/barrister, an accountant, or individuals working with the Financial Conduct Authority. Enhanced checks are reserved for those working with children and vulnerable adults, or those who require taxi-driving licences.

Although spent convictions and cautions will often appear on Standard/Enhanced checks, changes in the law in November 2020 led to new rules that would allow certain minor convictions and cautions to be ‘filtered,’ which means they will not appear on your DBS certificate. These changes can be applied retrospectively, and so include any cautions/convictions issued before November 2020.

What are the rules around filtering?

The ‘filtering’ process identifies which criminal records may or may not be disclosed on a Standard and Enhanced DBS Check. It is important to note at the outset that filtered cautions and convictions are not ‘removed’ from police records – they will simply not be disclosed on DBS certificates.

For your conviction(s)/caution(s) to be filtered, there are certain conditions that need to be met, including whether or not you received a conviction or a caution, how old you were at the time, and the period of time that has passed.

Firstly, cautions and convictions relating to certain offences can never be filtered. These include any convictions that resulted in a custodial sentence, whether suspended or not. There is also a list of ‘specified offences’ that cannot be filtered. The UK government website maintains a list of over 1,000 specified offences, the most common of which are related to offences of a violent or sexual nature or to the safeguarding of adults or children.

This means that if you were convicted for one of these specified offences (whatever your age), it will never be removed from a Standard or Enhanced DBS check and will always appear on your certificate.

However, if you were cautioned for one of these specified offences when you were aged under 18, it should never appear on your DBS check. If you were 18 or over, it will always appear on your DBS check.

Assuming your caution/conviction relates to a filterable offence, then several years must pass before they are filtered:

• If you were convicted as a youth and did not receive a custodial sentence, the record of your conviction will be filtered after 5 and a half years.
• If you were convicted as an adult and did not receive a custodial sentence, the record of your conviction will be filtered after 11 years.
• If you received an adult caution, the record will be filtered after 6 years

You can get more information about filtering on the Government’s website as well as Unlock’s website.

What does this mean when applying for jobs?

It is important to bear in mind that an employer cannot seek a higher level of DBS check than is required for the job. If they do so, they risk facing criminal prosecution. This means that an employer cannot ask for a Standard/Enhanced DBS check when a Basic check will suffice.

If you are applying for a job that requires a Standard or Enhanced DBS check and are asked if you have any convictions or cautions, you should always be aware of whether the offences are considered ‘specified’ or not and be mindful of how much time has passed. If your convictions/cautions have been ‘filtered’, you do not need to disclose them to a potential employer, and employers cannot take them into account when considering your application.

However, it should always be borne in mind that, in the case of Enhanced checks, there is a possibility that the police choose to disclose information about offences that have been filtered. They may only do this if they believe the information is relevant to the job or position you are applying for. In cases such as these, the police are subject to statutory guidance which they must take into consideration. Likewise, there also exist a small number of roles – often relating to national security or the police – where details of all convictions and cautions may be taken into account, regardless of filtering.

Olliers Solicitors – Specialist DBS lawyers

If you have received correspondence from the police force indicating that they are considering disclosing information on your enhanced DBS check, we would suggest that you contact our specialist DBS team on 0161 834 1515, by email to dbs@olliers.com or complete the form below to contact us.

We can prepare representations for an agreed fee and liaise with the police on your behalf.