Disclosure and barring
29.17In addition, all persons, including professionally registered persons, who work or seek to work with children or vulnerable adults are:
•liable to be barred from such work (this is in addition to the possibility that professionals may have their professional registration cancelled), subject to an appeal to the Upper Tribunal;
•subject to machinery which prohibits them from such work unless they disclose their full criminal history as well as information held by local police forces that it is reasonably considered might be relevant to the post applied for (eg complaints about the person’s conduct that did not result in criminal proceedings and may never have been fully investigated let alone judicially determined).
29.18The legislation that provides most of the relevant machinery is the Safeguarding Vulnerable Groups Act (SVGA) 2006, together with delegated legislation, the most important of which is:
•the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (which prescribes the process to be undertaken before a person is included in one of the barred lists, or removed from a list);
•the Safeguarding Vulnerable Groups Act 2006 (Barred List Prescribed Information) Regulations 2008 (which prescribes the information that must be maintained about barred individuals).
•maintains separate barred lists for regulated work with children and adults in accordance with Schedule 3 to the SVGA 2006 (which sets out the criteria for inclusion in the lists),
•provides three different levels of DBS checks for the benefit of employers in the field of child and adult care:
•Standard (this checks for spent and unspent convictions, cautions, reprimands and final warnings);
•Enhanced (this includes the standard check plus any additional information held by local police that is reasonably considered relevant to the workforce being applied for); and
•Enhanced with list checks (this includes and enhanced check and a check of the DBS barred lists).
Barring
29.20As far as concerns barring, a great deal of information provided to the DBS comes from the police and criminal justice system, but employers in regulated activities involving children or adults must report to the DBS any individual whom they dismissed because they harmed someone, whom they dismissed or removed from working in a regulated activity because they might have harmed someone or whom they were planning to dismiss for either of these reasons, before they resigned; and it is a criminal offence to employ a barred person in a regulated activity from which they are barred: see sections 30–51 of the SVGA 2006.
29.21By virtue of paragraphs 1 and 7 of Schedule 3 to the SVGA 2006, the DBS must automatically include on the children’s or adult’s barred list persons who have been convicted of prescribed offences.
2See the guide to prescribed offences at www.gov.uk/government/uploads/system/uploads/attachment_data/file/384712/DBS_referrals_guide_-_relevant_offences_v2.4.pdf.Otherwise, by virtue of paragraphs 2 and 8 of Schedule 3, and the consequential provisions in Schedule 3, the DBS may include a person on one of the barred lists if (having considered the person’s representations) it is satisfied that they have been or might be engaged in a regulated activity relating to children or vulnerable adults, if they have engaged in ‘relevant conduct’ and it is ‘appropriate to include the person in the list’. The ‘relevant conduct’ is defined as follows (for the purposes of the adult’s barred list) in SVGA 2006 Sch 3 para 10:
10(1) For the purposes of paragraph 9 relevant conduct is–
(a)conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;
(b)conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;
(c)conduct involving sexual material relating to children (including possession of such material);
(d)conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate;
(e)conduct of a sexual nature involving a vulnerable adult, if it appears to DBS that the conduct is inappropriate.
(2)A person’s conduct endangers a vulnerable adult if he–
(a)harms a vulnerable adult,
(b)causes a vulnerable adult to be harmed,
(c)puts a vulnerable adult at risk of harm,
(d)attempts to harm a vulnerable adult, or
(e)incites another to harm a vulnerable adult.
(3)‘Sexual material relating to children’ means–
(a)indecent images of children, or
(b)material (in whatever form) which portrays children involved in sexual activity and which is produced for the purposes of giving sexual gratification.
(4)‘Image’ means an image produced by any means, whether of a real or imaginary subject.
(5)A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.
(6)For the purposes of sub-paragraph (1)(d) and (e), DBS must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.
29.22A decision to include a person in either the adult’s or children’s barred list may be appealed to the Upper Tribunal, providing the Upper Tribunal grants permission to appeal, by virtue of section 4 of the SGVA 2006:
Appeals
4(1) An individual who is included in a barred list may appeal to the Upper Tribunal against–
(a)…
(b)a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list;
(c)a decision under paragraph 17, 18 or 18A of that Schedule not to remove him from the list.
(2)An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake–
(a)on any point of law;
(b)in any finding of fact which it has made and on which the decision mentioned in that subsection was based.
(3)For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.
(4)An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.
(5)Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of [ DBS ].
(6)If the Upper Tribunal finds that DBS has made such a mistake it must–
(a)direct DBS to remove the person from the list, or
(b)remit the matter to DBS for a new decision.
(7)If the Upper Tribunal remits a matter to DBS under subsection (6)(b)–
(a)the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and
(b)the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.
Disclosure
29.24The procedure is that (i) the registered body provides the candidate with a DBS application form for completion; (ii) the registered body checks that the information provided is accurate and completes its part of the form, which requires it to verify the candidate’s identity; (iii) the form is sent to the DBS which checks it and may need to return it; (iv) the DBS searches the Police National Computer for any matches which reveal convictions (etc.), as well as the children and adult’s barred lists; (v) the DBS then asks the police for any information held by them they consider to be relevant and ought to be included in the certificate; (vi) the DBS certificate is then printed securely and sent to the candidate; (vii) the registered body is able to track the process electronically; (viii) it is up to the candidate whether to disclose their DBS certificate to the registered body, although they must not be employed if they do not do so; (ix) the DBS has published guidance to assist registered bodies detect any fraudulent alteration of a DBS certificate and of course it is a criminal offence to alter such certificates.
29.25As will be apparent from the above, a major function of the DBS is to secure information from the police, for inclusion on the DBS certificate. The most contentious aspect of this arises out of section 113B of the Police Act 1997, which promotes the communication of information by the police to the DBS about the individual which may never have been judicially assessed for accuracy and which could range from gossip (although information ‘
unlikely to be true’
4See paragraph 18 of the Statutory Disclosure Guidance (2nd edition, August 2015).ought not to be included) to highly evidenced allegations that are certainly true:
113B(4) Before issuing an enhanced criminal record certificate DBS must request any relevant chief officer force to provide any information which ….
(a)the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and
(b)in the chief officer’s opinion ought to be included in the certificate.
(4A) In exercising functions under subsection (4) a relevant chief officer must have regard to any guidance for the time being published by the Secretary of State.
29.28It may be surprising that legislation does not provide an appeal in relation to the content of DBS certificates. However, in judicial review proceedings, because ECHR rights are engaged, the court will intensely review the factors considered by the decision-maker and decide for itself whether the content of the DBS certificate is proportionate; though it will not consider evidence post-dating the relevant decision.
7See H and L v A City Council [2011] EWCA Civ 403, (2011) 14 CCLR 381 at para 29.57 below.