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Police Act 1997 (Criminal Record Certificates: Relevant Matter) (Amendment) (England and Wales) Order 2023

Volume 832: debated on Monday 24 July 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Police Act 1997 (Criminal Record Certificates: Relevant Matter) (Amendment) (England and Wales) Order 2023.

My Lords, this order amends the Police Act 1997 to require all unspent convictions and cautions to be disclosed on standard or enhanced criminal record certificates issued by the Disclosure and Barring Service—DBS.

The DBS issues three types of criminal record certificate: a basic certificate, which is available for any role; and two higher levels—standard and enhanced—which are available for roles that require a high level of public trust and/or working closely with children or vulnerable adults. More criminal history information is disclosed on the standard and enhanced checks than on the basic, in proportion to the sensitivity of the roles to which they relate.

The legislation which governs disclosure on basic certificates is different from that which determines what is disclosed on standard and enhanced. Disclosure on a basic certificate is governed by the Rehabilitation of Offenders Act 1974. This sets out the periods of time after which convictions and cautions become spent. Once spent, they are not disclosed on a basic DBS certificate. Disclosure on a standard or enhanced certificate is governed by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and Section 113A of the Police Act 1997. Together, these allow an employer recruiting for more sensitive roles to see a person’s fuller criminal history.

The filtering rules that govern this disclosure on standard and enhanced certificates define particular criminal records as a relevant matter which must be disclosed. The definition of “relevant matter” includes the seriousness of the offence, whether there was a custodial sentence and the length of time since the date of conviction or caution. The intention is that the convictions covered by the definition of “relevant matter” should include the unspent convictions disclosed on a basic check, in addition to more serious spent convictions, which are relevant to more sensitive roles.

However, the filtering rules do not currently include explicit reference to whether a conviction or caution is spent. This has created an anomaly where, in certain limited circumstances, an unspent conviction that would be disclosed on a basic certificate would not be disclosed on a standard or enhanced certificate.

An example may assist, the most straightforward of which involves youth conditional cautions which remain unspent for three months or until the condition is met if earlier. So if somebody applies for a basic DBS check during that three-month window, the youth conditional caution will be disclosed. However, there is no provision for youth conditional cautions to be disclosed automatically on a standard or enhanced check, even during the three-month window in which they remain unspent.

This might play out as follows. Let us say that a 17 year-old receives a youth conditional caution for common assault. Two months later, they apply to volunteer in a nursery and are required to undertake an enhanced DBS check. There is no provision for their youth conditional caution to be automatically disclosed on the enhanced check so it comes back clean. However, to earn some money alongside their volunteering, the 17 year-old also applies for a job in a supermarket, for which they are asked for a basic DBS check. The basic check discloses the youth conditional caution because it is not yet spent. The supermarket therefore ends up with access to more information than the nursery.

In this situation, the anomaly in disclosure is temporary as the youth conditional caution will be unspent only for a maximum of three months. Once that time is up, the youth conditional caution would not automatically be disclosed on any DBS check. However, this draft order will remove the anomaly altogether and will ensure, in cases such as this 17 year-old’s, that the youth conditional caution would automatically be disclosed on any type of DBS check for the three months that it remains unspent. The order amends the filtering rules so that unspent convictions and cautions are included in the definition of “relevant matter” and are therefore always disclosed on standard and enhanced certificates.

In conclusion, the disclosure and barring regime is based on the principle that those making employment decisions for the most risky jobs have access to more criminal record information than is available for less risky ones. This order will ensure that this principle is always delivered. For that reason, I commend this draft order to the Committee.

My Lords, I start by saying that the rationale for this SI seems sensible. Standard and enhanced DBS certificates should never have a lesser capture of information than that provided by basic checks. However, as is always the case with complex organisational things of this nature, the devil lies in the detail; in other words, does all this match up together appropriately? I want to ask a few questions about the connection between the new disclosure provision for standard and enhanced DBS certificates and the provision for filtering—that is, where things are filtered or not filtered accordingly.

As I understand it, police national computer records relating to protected cautions and convictions will not automatically appear on a certificate. If that is the case, is it the case across all three if they are protected? Are there any unspent offences or cautions that will now become declarable and where filtration will or will not apply, as it could be one way or the other? Will the unspent caution change apply equally to both simple and conditional cautions, which are two different styles of caution?

I want to ask the Minister a question about the two-tier caution system, which is obliquely associated with this SI. This regime was investigated in a pilot, which resulted in 2018 with three police forces undertaking the activity. I wonder whether, now that they have got to the end of that and we have passed through Covid, any further consideration has been given to a different regime here, such as the one described in the 2018 report.

Finally, on the consultation on this SI, there are bodies and agencies such as Unlock, which supports prospective employees who have convictions. Can the Minister say that their awareness of what is happening and why has met with their consent or approval? Has it been met with any concerns from bodies such as them about the way in which this order is before us today? I have only those questions.

My Lords, this appears to be a sensible SI. No concerns were raised by the SLSC, nor was the instrument reported by the JCSI. It will align the separate rules which determine what criminal record information is automatically disclosed on a basic DBS check, on the one hand, and what is disclosed on the higher-level standard and enhanced DBS checks, on the other, so that higher-level checks will never disclose less criminal information than is disclosed on a basic DBS check. The Explanatory Memorandum states:

“The Home Office is working with DBS to ensure that this change and the timing for this to come into effect, is widely understood by those it may affect”.

The example that the Minister gave of the 17 year-old working in a supermarket and then also applying to work with children was a very good one, and one which I have actually seen myself in youth courts. I had not realised that there was this anomaly, and I am glad that this SI is rectifying it.

This morning, I sent the Minister a particular conundrum I had, which is actually outside the strict remit of this statutory instrument. I will just run through that scenario, and I hope the Minister will be able to answer the question it raised with me. I was recently sitting as a magistrate to hear domestic violence protection order applications. Of course, these are civil orders. The applicant was a young mother, who was represented by a lawyer who happened also to be a part-time judge. The respondent, the former boyfriend, was unrepresented. The applicant’s lawyer suggested that the best way to deal with this matter was to not find any facts and just put an order in place for a relatively short time, and everyone could continue living their lives separately and the matter could be disposed of in that way quite quickly. I explained to the respondent that, if he were to breach that order, it would be a criminal offence and he needed to be aware of that. The respondent said to me that he was employed as a primary school teacher, and he was in a much more serious situation than seemed to be realised by the court. He would have to tell his headteacher if the DVPO had been put in place. So I put it off for a contested hearing and advised the young man to get a lawyer.

Subsequently, I talked about this case with a legal adviser, and she said that, as a solicitor, she would not have to disclose whether she had any equivalent civil order put in place. She would not have to tell the Solicitors Regulation Authority, so she doubted whether this primary school teacher would have to do so in his case. I did not know the answer to that question. I suspect there may well be more stringent regulations for teachers, particularly primary school teachers, and there is of course the wider question of all these—really quite a lot of—civil orders which magistrates now put in place, for the reasons we have often debated, and whether there are any guidelines for the various professional organisations about what the requirements for disclosure are and whether that is a ramification which may be taken into account within the whole DBS system.

Also this morning, I went on to the website of the charity Unlock, which deals with people who have left prison and who have had community sentences and that sort of thing. It has a number of worked examples about when things are declarable and when they are not, and at what stage of the job application process matters are declarable. It is an extremely complex picture. It is something which people often fall foul of, and the rules are not clear at all. Can the Minister say anything in a wider sense about how these checking procedures are being reviewed and simplified, from the point of view both of employers and of those people who do have criminal records, so that a system which is better understood can be operational, which would be to the benefit of both sides?

I thank both noble Lords for their contributions to this debate. I am glad that they both agree that this instrument is necessary to align the two sets of rules that determine disclosure of criminal records on basic certificates, on the one hand, and the standard and enhanced certificates on the other. This will ensure that on all occasions the levels of disclosure on criminal record certificates align with the levels of risk and vulnerability inherent in particular roles.

Perhaps if I go into a bit more detail, it will answer all or most of the noble Lord’s questions. I shall come back to the noble Lord, Lord Ponsonby, on his specific example towards the end. It is worth pointing out that the circumstances in which this might occur are very limited, which suggests that the practical impact is likely to be fairly low. The nature of the offences involved also reduces the impact of this anomaly. The DBS has had regular contact with employers regarding criminal record checks across a range of sectors, and we are not aware of any evidence that this lack of alignment between the two sets of rules has had any significant real-world impact. It is worth stating that. Although we believe this impact to be low in practice, it makes sense to rectify the situation.

To go into more of the sort of detail that the noble Lord, Lord German, asked for about the types of convictions or cautions that are currently not disclosed on standard and enhanced certificates, we believe that the practical impact of this lack of alignment is low. However, as mentioned earlier, with youth conditional cautions, which are only unspent and disclosed on a basic DBS check from three months of issue, it will apply only to those youth conditional cautions because they are not immediately spent—so youth cautions will not be automatically disclosed. I hope that that answers that point.

Some of the other things that would be disclosed include earlier convictions in a string of repeat convictions. In that circumstance, there is likely to be a clear standard or enhanced DBS certificate. Then there are relevant orders, which include restraining orders and care orders—that sort of thing—if they relate to convictions that are old or less serious and if they have unlimited, indefinite or “until further order” end dates. As I said, we believe that the impact of this will be relatively low, but I hope that that gives an example of the sort of thing that we are dealing with here.

The noble Lord, Lord German, asked what cautions are not disclosed on standard and enhanced certificates for the relevant matter, and asked whether this was not a safeguarding risk. We believe, as I have said a number of times, that the impact is likely to be low, given the limited circumstances in which it can occur, and the nature of the offences involved. I have gone through them to some extent: I have talked about the youth conditional cautions, the early convictions and relative orders, so I think that that generally answers the relevant question that the noble Lord asked me.

To go back to the specific question from the noble Lord, Lord Ponsonby, on the case that came before him as a magistrate, this is not a complete answer—we will have to do some consultations with the Department for Education as well—so I hope that he will be content to leave that with me, and I shall return when I have concluded those discussions. From the perspective of the disclosure and barring regime, the domestic violence prevention order, if not handed down as part of a conviction, does not need to be disclosed by an individual to an employer, nor will it be automatically disclosed on any kind of DBS check. It is possible that a civil order such as this might be included as additional information on an enhanced check, but only if the police consider it to be relevant and proportionate to disclose. Teachers are subject to regular DBS enhanced checks, with children’s barred list checks. If there is a conviction, either due to a breach of the order or its attachment to a conviction, it would be disclosed on an enhanced DBS check. If asked by his employer, the teacher would be obliged to tell them of the conviction and the order.

I take the point made by the noble Lord, Lord Ponsonby, that this is somewhat complicated—he makes a very good point about that. The Disclosure and Barring Service ensures that applicants and employers have guidance to explain the changes and the impact that they may have in any particular circumstances. It goes to both noble Lords’ questions as well as to the external bodies that have been consulted. We have certainly engaged with Unlock; whether it approves of this measure, I really could not say, but I would imagine so because it brings clarity to this situation. But we have certainly engaged with it and other interested stakeholders on a regular basis.

I should also say that existing guidance makes it clear that, where an employer is aware of a conviction, it should not be an automatic bar to employment. We urge employers to exercise a balanced judgment and take into account factors such as the person’s age at the time of the offence, how long ago the offence took place, the nature of the offence and its relevance to the individual’s role. All of those deserve to be restated. I will take the suggestions of the noble Lord, Lord Ponsonby, about simplifying the guidance, or the regime that delivers the guidance, and making it a little easier for people to understand.

With that, I think I have answered the questions. I thank both noble Lords for their contributions and once again commend this draft instrument to the Committee.

Motion agreed.