Following the acquittal of the DJ, Neil Fox, at Westminster Magistrates’ Court recently, you would think that for many an acquittal or dismissal of a charge would be the end of the matter. Sadly in this day and age it is often not the case. It is right and proper that the most vulnerable members of our society are protected. The consequences of the Soham Murders and the revelations following the Rotheram Inquiry support this. However, having been wrongly accused of a crime and proved innocent, details of the allegation can still appear on a Disclosure and Barring Service enhanced certificate, leading to a sense of injustice.
So what can be done about it? The good news is that you don't have to suffer in silence. You can challenge the information included on your certificate. The reality of the situation is that the Police National Database contains information held by the Police in relation to “soft” Police intelligence. This includes details of investigations which have not led to a conviction, caution, reprimand, warning or arrest and is generally retained for up to 6 years. This period can be extended in cases of serious offences or where particular individuals are considered a continuing risk. This information can be provided to the Disclosure and Barring Service, particularly when the second level of checks conducted by the DBS is conducted under the term an ‘enhanced check’. Such a check is usually conducted where a person is applying for an “excepted" position, i.e. one that involves working with children or vulnerable persons.
Cases brought before the courts and, in particular, the Supreme Court challenged this level of disclosure and a review was undertaken by the Home Office that led to the introduction of the Protection of Freedoms Act 2012. This in turn led to guidance being provided to Police forces in relation to the disclosure of Police intelligence or “soft” material. General principles set out the guidance as follows, including relevance to an employer’s assessment, the impact on the private life of the applicant, the gravity of the information, its reliability and period of time which has elapsed, and whether the information is relevant to the application and, if relevant, should the applicant be given opportunity to make representations. This does not apply where the information relates to an impending prosecution or provides background to a conviction on the Police National Computer.
Anyone still left with a dispute and grievance to the inclusion of such information may still challenge its contents through the DBS disputes process and, where the this does not resolve the matter satisfactorily, may turn to the independent monitor of the DBS. A body created by Section 82 of the Protection of Freedoms Act 2012.
It is a developing area of law that will become more relevant to certain sectors of industry and commerce as employees seek to move and increase their earning potential. Each case will be considered by the DBS on a case-by-case basis and the leading authorities already show disparities between different allegations and their disposal.
A more recent development on 26 March 2013 saw the Government introduce filtering rules and change the law as to how to deal with certain disposals which will no longer be disclosed by DBS certificate. This only includes certain specified offences. Others, such as of a sexual or violent nature, will always be subject to disclosure, together with other offences that are relevant to safeguarding. The Rehabilitation of Offenders Act 1974, makes it unlawful for employers to discriminate on the grounds of a spent conviction but do not include: jobs working with children or vulnerable adults, such as the elderly and disabled people; senior roles in banking and financial service industry; those connected to law enforcement, including the Judiciary and the Police; professions in health, pharmacy and the law, and private security work, to name but a few.
Woodfines’ specialist Road Transport division regularly represents drivers or those engaged in PSV licensing who find themselves subject to a disclosure which impacts on their employment. We are also available to give detailed advice and make representations on your behalf to those affected in other professions. Please contact us for an initial consultation to see if we may be able to assist should you be faced with this difficult and complex area of law.