Understanding DBS (criminal record) checks when your case was NFA (no further action) or you were found Not Guilty.

Question

jim · Accepted Answer

There are three main types of check. Basic, Standard and Enhanced. Only registered employers who fall into certain criteria are authorised to carry out checks on their employees either in their own right (as they carry out lots of checks) or through an umbrella checking company.

If an employer is not registered or eligible to be registered to carry out checks then they only really have one route to doing a check on you and that is with your co-operation and it is only the basic check. They may request that you apply for the basic check and supply them with the results. In most cases they are prepared to pay for this check and part of the online application you will carry out gives the option to pay later. By doing this you are supplied with a link to forward to the employer and they make the payment. When the check is complete it is sent to you alone for you to give to the employer.

So what do the checks show?

Basic checks – This will show only convictions and conditional cautions considered to be “unspent” under the rehabilitation of offenders act 1974.

Standard Checks – This will show both spent and unspent convictions along with cautions (non-violent and non-sexual convictions are weeded out from standard and enhanced DBS after 12 years if they did not result in prison or the sentence was suspended).

Enhanced Checks – This is the one that worries our members the most as not only does it show all of the same information from a standard check but it MAY include other intelligence/information held by local police forces that could be considered relevant for inclusion for the role that is been applied for.

So where you have been investigated for a crime and either the outcome is NFA (no further action) or the case makes it to court and you are acquitted this naturally is information that the police will hold about you in their intelligence systems. There is quite a lot that can be held in local intelligence systems such as fixed penalty notices, allegations and even information about people who you live with. This is information that is separate from what is held in the police national computer such as convictions etc.

The decision to supply information for an enhanced DBS is that of the police chief for the local police force area(s). They are guided not only by their own local guidelines but principally by the statutory disclosure guidance (1) and the quality assurance framework (2).

Before panicking about this it is always important to look at the numbers. The latest numbers I have been able to obtain refer to the year 2022 and were obtained by accused.me.uk via a freedom of information request. They show that in that in 2022 4,446,635 enhanced DBS checks were carried out. Of these 1,466,420 of the applications were flagged for local police forces holding “intelligence”. However, only 4,751 applications included any of that further information held by local police forces. This means only 0.32% of the checks where there was further information did it make it on to the check for disclosure.

So, what can you do to help the situation. If you’re a member of our group then you likely already know that they will hold “intelligence” about you that will likely be considered for inclusion. So you can pretty much skip trying to find out what they hold. You already know to a sufficient enough degree what it is. If your not a member of our group and you are not sure but you are considering applying for a job that requires an enhanced DBS check then your best approach would be to make a subject access request to your local police force (and any police force areas you are previously linked to). The results of this subject access request will indicate if there is anything further that you need to do.

Police forces SHOULD contact you if they are considering including information in the enhanced check as other relevant information. They do not have to contact you but they should.

The first option, which we think is the better option is to do nothing and see what happens.

The second option, whilst feeling as though you are been pro-active and trying to get ahead really is a double edged sword!

On one edge with the knowledge the check is in the process and the knowledge they hold intelligence about you then you could contact the relevant police force(s) and ask them to allow you to make representations if they are considering including information about you. Again, they do not have to allow you to make the representations (most police forces do) but by you making this request may make them worried about a legal challenge if they do not.

The other edge of that same sword is that by contacting them and asking them to allow you to make representations could cause them to pay more attention to your file. When you consider in the latest figures we have police forces were dealing with 1,466,420 cases that were flagged (some of these needed to go to multiple police forces) then these are very busy departments. Given that only 0.32% resulted in been included it could be a risk to draw attention to yourself.

If it is decided (with or without your representations) to include other information on your DBS check then this certificate will be sent to you to give to your employer. There are lines of complaint to try and rectify the situation. There is an independent monitor and you can get further information about this process from the .gov website (3).

Our Conclusion – We would not recommend contacting the police to try and ensure that they allow you to make representations. We say this with the knowledge of the low inclusion rate and the fact that the majority of police forces, the majority of the time, contact you to allow you to make representations if they are considering the inclusion in your check. Contacting them and asking them to ensure that they do will only heighten their attention to your check and this is always a bad thing.

The chances are if you are one of the 0.32% that they are considering inclusion for then your representations at that level will likely fall on deaf ears. It is far better to sit it out and see what happens. The important safeguards of the dispute procedure will still be there for you if you are unlucky enough to be one of the few.

It’s always worrying and we have members who regularly need checks doing. They may have had multiple clear checks since their False Allegation but it still does not stop them worrying every time that they need one. We would recommend if you are category of worker that regularly needs to be checked to consider signing up to the DBS update service (4). For £13 a year you can keep a closer eye on your DBS checks.