Essential Updates to your Single Central Record: 2020 Amendment of the Rehabilitation of Offenders Act
Summary: Important legal changes came into force on the 28th November 2020 to take into account a judgement by the Supreme Court. These changes are:
- Cautions given to under 18s are no longer legally disclosed
- The multiple conviction rule has been removed so that each offence should be considered individually
- Applicants must be told how to get independent, confidential advice on which cautions or convictions they must disclose and be given time to obtain advice
There are a number of changes that are required to ensure that registered settings are compliant with the Supreme Court’s rulings. These include changes to application forms, short listing and interview procedures and data protection related to criminal information.
A Single Central Record is a mandatory register of checks carried out on staff. It’s a key part of a range of measures to help ensure that the people we employ are safe to work with vulnerable people. I have been delivering Single Central Record training in partnership with Delegated Services for a few years now. The training is designed to help participants to manage the different functions of their Single Central Record with regard to laws and national statutory guidance. Although it’s always well attended training, and, as far as I know, unusually the ONLY training of its kind in the country, I regard it as one the most challenging courses I have ever devised. One of the challenges is keeping up with the many changes to acceptable practice. Recently procedures for criminal records checks of staff has undergone one the biggest changes since they were first brought into existence. These new filtering and other processes should come into practice in January 2021. Every employer of people working with children needs to be aware of these changes.
To update my knowledge of checks as an accredited Safer Recruitment trainer, just before Christmas I attended an online briefing delivered by the Safer Recruitment Consortium (SRC). To give you some idea of the importance of the training, it was entitled “The most significant change to the criminal record regime since 1974”: Introduction to the 2020 amendments’.
The 1974 Rehabilitation of Offenders Act (ROA) continues to steer the way we carry out criminal record checks. It was designed to give people with a criminal history a clean slate so that once an offence is spent, the offender does not need to inform potential employers. After its passing, it became clear that there were several professions where is seemed more than reasonable that employers should have every right to know about the criminal history of applicants, given the vulnerability of the people they worked with (including children). The very next year therefore, the ROA Exceptions Order 1975 gave some employers a right to know about spent convictions. Typically, these employers were recruiting into the children’s or vulnerable adult’s workforce, or in security or financial positions. And it was these roles that continue to be exempt from the ROA 1974 which are subject to a standard or enhanced DBS certificate.
But last year a group of four cases was taken to the UK Supreme Court to challenge employment legislation and how recruitment checks should be carried out and assessed by employers. The cases involved offences carried out by potential employees that would lead to them being completely barred from employment with vulnerable people, that is, unless the full context was taken into account.
As a mature adult, ‘W’ wanted to seek employment as a teacher of adults, but was told this career route was closed to him because he had been convicted of Actual Bodily Harm after a fight at age 16. ‘P’, who wished to apply for a job as a classroom assistant, had been cautioned over 20 years ago for stealing a sandwich and then a book a few months costing 99 pence. The repeat offences, carried out while she was an adult aged 28, but experiencing a mental health condition at the time (a condition she was receiving medication for and had not suffered an episode since), meant that she could not work in a school on the multiple offence rule. ‘G’ had been discovered sexually experimenting with a group of boys at age 11. The police were satisfied that there was no predatory behaviours, but had issued a ‘reprimand’ (now a youth caution) at the time that had remained on his record. The last case involved ‘LG’ who also wished to work with children, but who had been convicted twice in two years for driving her 3 children without a seatbelts. This was a minor offence, but she failed to disclose her second conviction to her potential employer and was not awarded the job. All the cases shared a level of confusion from police, employers and the potential employees about what to and what not to disclose.
The Supreme Court judged that the first three cases (‘W’, ‘P’ and ‘G’) involved people with a criminal history but who posed no risk (the last case involving LG could have indicated a lack of concern with safety which may be relevant to a role with children – also honesty & integrity put in doubt by failure to self-disclose a second incident). In particular, the Supreme Court ruled that:
- the multiple conviction rule is not proportionate;
- youth warnings & reprimands were intended to be preventative / rehabilitative and disclosure to a prospective employer is inconsistent with that purpose;
- although the DBS code of practice requires employers to take a proportionate view, some may take too absolute a line
- there was real confusion amongst applicants and employers as to what they should and should not disclose in regard to their criminal history.
The Disclosure and Barring Service and Ministry of Justice therefore issued the new guidance on 20/11/20. The changes came into effect on the 28/11/20. In summary:
For people who committed offences under age 18, convictions will be filtered (not appear on Disclosure and Barring Checks) if 5 ½ years has elapsed since date of conviction, the conviction did not result in a custodial or suspended prison sentence, and the conviction does not appear on the list of specified offences. Disclosure and Barring Checks will also now not show reprimands/cautions/warnings (as opposed to convictions) even if they were for a specified offence if they were gained while the applicant was under 18.
Unless the offence is on the list of specified offences, checks on adults will now ensure that: custodial sentences (which includes suspended sentences), community orders etc. are spent a set period of time after the end of the sentence; a fine, absolute or conditional discharge, etc., is spent a set period of time after the sentence was given; simple cautions are spent immediately; conditional cautions are spent after 3 months; an adult conviction will be filtered from a standard or enhanced DBS certificate if 11 years has elapsed since date of conviction and the conviction did not result in a custodial or suspended prison sentence. What is a specified offence? A list of offences that the government has agreed will never be filtered for adult convictions includes:
So what does this mean for the children’s workforce?
Importantly the judgement does not challenge the principle that employers of exempt roles have a right to know about, and can take into account, unspent convictions, and the right to make judgements about the suitability of applicants for employment. It does mean though that an offence might be filtered from a DBS check before it is spent, and that therefore potential employers may now not see unspent convictions on DBS checks. And this therefore means that employers may not be aware of patterns of behaviour that were previously a good indicator of behaviour. The only way now to discover details of unspent convictions may be via the self-disclosure of candidates. Police, on the other hand, may use other powers to share information directly to an employer about an offence that would automatically be filtered if they believe it is relevant to the role. But employers wouldn’t be able to take action against someone for failing to disclose criminal info that the police shared under these other powers.
Employers therefore must ensure:
They are sending the right message in their advertising for new posts, including:
- the organisation’s stated commitment to safeguarding
- need for DBS certificate and barred list checks, information about the safeguarding responsibilities of the post in the job description and person specification
- information about the organisation’s safeguarding policy and practices to candidates
- clear information about the need to disclose relevant criminal history
Application forms for all job applicants should request:
- Personal details
- Present employment and reason for leaving
- Full history since leaving school (education and employment or voluntary work)
- Personal statement to meet person specification
- Information for applicants about the legal basis and process for disclosing relevant criminal record and where they can receive confidential advice on how to answer the questions about self-disclosure honestly and correctly if shortlisted
- Signed declaration by candidate that all information is true
Shortlisted applicants must provide (note: do not ask for disclosure of criminal history before being shortlisted as it is deemed discriminatory to use disclosed information for shortlisting):
- Self-disclosures of criminal background including the opportunity to provide context and circumstances surrounding their criminal record
- Give applicants the opportunity to provide accurate context and the circumstances surrounding their criminal record
- Not take into account an offence if an applicant discloses it if they did not need to – it is the recruiter’s responsibility to know not to discuss/take it into consideration
If carrying out a DBS check on selected candidate:
- Advise applicants of section E field 55 on the DBS application form (this is currently being updated – more information to follow)
When processing and storing sensitive data ensure that:
- it is targeted and proportionate
- the level of data that a role may attract is clear to applicants
- it upholds the principle of data minimisation
- it includes details of the decision making, particularly where the decision was not to appoint
- it is stored & destroyed securely within a clear retention policy
- it is regularly review the data that you already hold and don’t keep data for longer than necessary
- Interestingly and in complete contrast to previous advice, copies of DBS checks can now be retained for the duration of employment – but this should be clarified in staff privacy notices
This is how some of this guidance is due to appear in the next iteration of Keeping Children Safe in Education 2021: