Written 1st March 2017 by Ruth Peters

It is becoming increasingly common for individuals to require DBS Checks. This can be for a variety of reasons including a new job or as a part of some voluntary activity, such as, volunteering to coach a children’s football team. A DBS Check will show up information from nationally held Police National Computer (PNC) Records and potentially also locally held police records. We are increasingly contacted by concerned individuals of good character with no previous convictions who are unsure as to whether details of an old arrest may feature on their DBS Check.

Types of DBS Checks

There are three different types of DBS checks:

Standard Certificate: This is the a basic check and will show information from Police National Computer (PNC) records including spent and unspent convictions, cautions, reprimands and final warnings.
Enhanced Certificate: This DBS Check will additionally show any other information held by a police force that is considered relevant to the role applied for including details of arrests where no charges were brought.
Enhanced Certificate with Barred List checks: This will also show a list of persons on the DBS Barred Lists and therefore deemed unsuitable to work with children and/or vulnerable adults.

Enhanced DBS Checks

Enhanced DBS Checks can show ‘any other information held’. This does not simply include details of convictions but may include details of matters where individuals were arrested but never charged. The courts have considered what ‘any other information’ means and concluded it has the wider definition of ‘any’ as the legislation states. This includes, but is not limited to:

Incidents for which individuals were never arrested, charged or prosecuted;
Incidents for which individuals were found Not Guilty;
Incidents which were dealt with by other bodies (such as Local Authorities in their disciplinary processes, employers, schools, hospitals etc.); and
Third party information – information about people other than the applicant.

As those of us who work within the criminal justice system are aware, there are numerous circumstances where an individual may be arrested for spurious reasons such as a malicious or false allegation. Following the police investigation such individual may then receive notification of no further action but the details of the arrest will remain on police records and could potentially then be disclosed on an enhanced DBS Check.

This could be particularly problematic where the individual was arrested for an offence of a violent or a sexual nature. Whilst having information disclosed on a DBS Check does not automatically preclude an individual from the role they have applied for, it can be embarrassing, irrelevant and disproportionate to have details of an arrest not resulting in a conviction or other information disclosed.

How will the Police decide what information to disclose on a Enhanced DBS Check?

Before including non-conviction information on a DBS Check, the police must ‘reasonably believe’ that the information is relevant and that it ought to be disclosed. The Police must satisfy themselves that it is reasonable to believe that the information to be disclosed is relevant to considerations of the risk that the applicant may pose when undertaking their role.

The Police also need to give consideration to whether the information they are considering disclosing is truthful and it would be proportionate to disclose the same. In considering the potential Human Rights impact, the courts have directed that the Chief Officer begins with no pre-disposition to either disclose or to not disclose – they must begin favouring neither one party or another.

Challenging Information Disclosed on a Enhanced DBS Check

It is possible to challenge the disclosure of information on an Enhanced DBS Check. When an individual raises a dispute, the case is returned to the police force in question, together with details of the reason for challenge. The case is then considered by someone who was not involved in processing the original application and they may or may not agree with the disclosure.

In addition, the Protection of Freedoms Act 2012 made provision for a new independent process know as ‘Review’, with oversight by an appointed Independent Monitor for Disclosure, giving applicants further opportunity to challenge a disclosure. The Independent Monitor will assess whether or not police applied the criteria correctly when processing an application.

If you are in receipt of an Enhanced DBS Check that contains information you believe should not have been disclosed we would suggest you contact us to discuss the matter further.

Is it possible to have information deleted from my PNC record?

In certain circumstances it can be possible to apply to have information deleted from your PNC record. We would suggest you contact us to discuss the matter and we can advise as to whether you may have grounds to have your PNC records deleted.

Grounds for PNC Record Deletion

The following are examples of circumstances in relation to which the deletion of a person’s PNC record should be considered:

No Crime: Where it is established that a crime has not been committed.
Malicious/False Allegation: Where the case against an individual has been withdrawn, and there is 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.
Incorrect Disposal. Where disposal options are found to have been administered incorrectly.
Suspect status not clear at the time of arrest. Where an individual is arrested at the outset of an enquiry when the distinction between the offender, victim and witness is not clear, and the individual is subsequently eliminated as a suspect.
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, consideration should also 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 providing there is no possibility of there being more than one offender.
Public Interest. Where there is a wider public interest to do so.

Disclosure and Barring Service (DBS) and PNC Record Deletion Specialist Solicitors

Olliers Solicitors are able to advise in relation to DBS Checks and make applications for editing or removal of your PNC records on your behalf. In most circumstances we can agree a fixed fee after disscsuign the matter with you. Contact specialist lawyers Ruth Peters or Laura Baumanis by telephone on 0161 8341515 or by email at ruthpeters@olliers.com or laurabaumanis@olliers.com.