Criminal Record Checks

The new Disclosure and Barring Service has now become operational. Introduced in an attempt to scale back the number of criminal record checks under the previous CRB system, it is clear that there are still some issues to do with the right to privacy to be resolved.

Over the last year, a number of legislative and structural changes have been implemented in respect of criminal record checks. Combined with the effects of recent caselaw, these changes will be of great interest to employers and employees working with vulnerable members of society.

The Disclosure and Barring Service

On 1 December 2012, the Disclosure and Barring Service (DBS) became operational, amalgamating the functions of its predecessors the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA) for England. The DBS is responsible for processing requests for criminal record checks, deciding whether it is appropriate for a person to be placed on or removed from a barred list and maintaining the DBS children's barred list and the DBS adults' barred list for England, Wales and Northern Ireland.

Part 5 of the Protection of Freedoms Act 2012 enacted a number of important changes from the existing system. The definitions of regulated activity for both adults and children have been altered such that fewer activities are now regulated. It is anticipated that this will reduce the number of positions requiring barring checks from 9.3 million to around 5 million. An independent right of review will now be available, allowing individuals to challenge information disclosed about them before it is given to their employer. Further, there are plans that DBS check certificates will be sent to individuals rather than organisations. A 'portable' DBS check certificate has been proposed, which will enable an individual to register once, and for future employers to check whether that individual's certificate is up-to-date through an online updating service. This service will be free for volunteers.

These changes form part of Home Secretary Theresa May's call in 2010 for criminal record checks to be 'scaled back to commonsense levels'. However, the onus will now be on employers to determine which roles require criminal record checks. Further, criminal record identity checking guidelines have been introduced (in May 2012, but apply to DBS checks) that are intended to make it tougher for those with a criminal record to hide past convictions by changing their identity. A...

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