Please search for the relevant information section, where you’ll find the FAQ’s relating to that subject.
Where a court imposes a non-conviction bind-over this will not be considered to be a conviction for the purposes of filtering. Technically, these should not be disclosed (unless via ‘other police information’) on standard and enhanced checks.
However, a court may impose a bind-over having found an individual guilty. In such circumstances this would amount to a conviction for the purposes of filtering.
A suspended sentence is treated under legislation as a custodial sentence. This means that if you have a conviction which received a suspended prison sentence, it will not be filtered. A Detention and Training Order is also treated as a custodial sentence.
Custodial sentences are defined in section 5(8) of the ROA, as to be substituted by section 139(1) and (4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Where a person has a non-recordable service offence, for example being absent without leave, this will no longer be subject to disclosure under the Exceptions Order once it has become spent. Thee are no other changes to the treatment of service offences under these provisions, although this is an area that we are looking at to see whether we can provide more guidance on service offences more broadly, as a number of issues have been raised about these.
The filtering rules cover convictions, cautions and their equivalents obtained overseas, where a check is being carried out in England & Wales by the DBS and an equivalent offence can be found.
This is not an easy process, and we’re expecting individuals who have things on their record from overseas to have to check the DBS certificate they receive. It’s not clear how this will work, as it is a complicated process to ‘match’ disposals from overseas.
No. The Rehabilitation of Offenders Act 1974 (ROA) sets out when your convictions become spent. Employers are able to carry out a basic level disclosure to confirm unspent convictions.
The filtering process applies to roles that are exempt from the ROA, which are entitled to carry out standard and enhanced level disclosures. Previously, these have always disclosed all cautions and convictions. The changes will reduce, in some cases, what is disclosed on these level of checks.
No. Nobody should be in a situation where a caution or conviction is now disclosed that wouldn’t have been disclosed immediately before this process came into force. Some people who benefited from previous processes (such as step-down) may find that their caution or conviction isn’t filtered under this process, but this is no different to what it was immediately before the filtering process was brought in.
The only way you’ll know for certain is by applying for a standard or enhanced disclosure. Since the 17th June 2013, certificates are now only sent to you (and not your employer).
So, if you’re not sure whether something will be filtered, and are in the process of applying for a position that involves a standard or enhanced check, you may want to wait until you have received the disclosure back from the DBS before disclosing something to an employer that has been filtered.
However, bear in mind that, if you’re fairly confident that parts of your record will not be filtered, you may be better off disclosing those elements that will not be filtered to the employer at the earliest possible opportunity.
This process only applies to standard and enhanced DBS checks.
In relation to basic checks, nothing should be eligible for filtering that isn’t already spent under the Rehabilitation of Offenders Act 1974 (and therefore not disclosed on a basic disclosure anyway).
The filtering process does not apply to other types of disclosures, such as Police Certificates issued by ACPO in support of applications to travel abroad.
An employer can only ask you to provide details of convictions and cautions that they are legally entitled to know. The filtering process changes what employers are legally entitled to know, and so it should change the questions that employers ask.
Where a standard or enhanced certificate can legally be requested (this is where the position is one that is listed in the Rehabilitation of Offenders Act 1975 (Exceptions) Order 1975), an employer can only ask an individual about convictions and cautions that would fall under the rules described above. That means only those convictions and cautions that would be disclosed on a DBS certificate.
If an employer takes into account a conviction or caution that would not have been disclosed they are acting unlawfully under the Rehabilitation of Offenders Act 1974.
There are a small number of defined positions where details of all convictions and cautions may be taken into account. These positions do not go through the DBS process. Examples are police vetting and firearms licence applications.
As a result of this filtering process, the DBS has amended what is required for question e55 on the DBS application form for a criminal record check. They are encouraging Registered Bodies to bring this change to the attention of applicants when completing the DBS application form, although this is unlikely to happen in all cases.
Question e55 asks ‘have you ever been convicted of a criminal offence or received a caution, reprimand or warning?’
The DBS are advising applicants that they should take into account filtering when they answer this question.
Can filtered cautions and convictions still be disclosed on enhanced disclosures as police intelligence?+-
Yes. So are, we’ve not seen many examples of this, but it is possible. A chief officer may include details relating to an otherwise filtered conviction, caution, warning or reprimand on an enhanced disclosure if they consider, having regard to all the circumstances, that the filtered disposal is relevant and that it ought to be disclosed. It is unclear, at this stage, how filtered disposals will be dealt with by local police forces when deciding whether to disclose information as relevant police intelligence.
A filtered disposal may also continue to be considered by the DBS for the purposes of making a barring decision.
There is no such ability to add a filtered disposal back into a standard disclosure certificate.
Standard and enhanced DBS certificates will include details of convictions and cautions (including youth cautions, reprimands and warnings) recorded on the Police National Computer (PNC).
In addition to information from the PNC, an Enhanced certificate may also include information taken from police records that a chief officer of a police force considers relevant to the application and/or details of whether an individual is included on one or both of the two lists barring people from working with children and/or vulnerable adults.
Some PNC information will now be filtered and will not appear on the certificate. Cautions and convictions filtered out are set out in legislation.
Unlock are looking for examples of where ‘filtering’ doesn’t go far enough. Have a look at our website for further information about the work we are doing and how you can assist us – http://www.unlock.org.uk/policy-issues/specific-policy-issues/filtering/