Government reforms on criminal record checks

Topics covered: Ridouts professional advice

The Protection of Freedoms Act 2012, which received royal assent in May this year, has now started to come into force.  The act aims to scale back the Criminal Records Regime and the Vetting and Barring System to ‘common sense levels’.

The current Vetting and Barring Scheme has been criticised as disproportionate and unnecessarily bureaucratic.  The government’s message now is that unless a person has been barred from working closely with vulnerable groups, we need to trust professionals to take decisions about who they employ in health and social care or take on as volunteers.

The government are aiming for a better sharing of responsibility for safeguarding between the state and organisations who engage people to work with vulnerable groups, including children.  They believe that the arrangements up until now over emphasised protection by the state and did not sufficiently emphasise the vital role that such organisations play.

To achieve this they are scaling back the criminal records and barring systems to more proportionate levels whilst ensuring that they continue to provide effective protection for those who need it. Some of the changes in the Act which came into effect on 10 September 2012 are outlined below.

Organisations are being given the responsibility of deciding whether someone is suitable for any specific role including carrying out reference checks and conducting face to face interviews.  The state has a key role to play in, for example, barring unsuitable individuals from working with vulnerable groups including children, and in ensuring that organisations can access criminal record information on individuals when the role justifies it.

Major changes coming into force on 10 September 2012:

  • New definition of ‘Regulated Activity’
    This is the most significant change that is happening.  The definition is being scaled back to focus on work which involves close and unsupervised contact with vulnerable groups including children.  The new definition will, over time, cover close to 5 million people compared to the old definition which covered 9 million.  The activities and work being taken out of regulated activity will still be eligible for enhanced CRB checks (but they will no longer be eligible for barred list checks).  An organisation which knowingly allows a barred person to work in a regulated activity will be breaking the law.  From 10 September, if an organisation considers that a role is within the new definition of regulated activity, then if they ask the individual to apply for an enhanced CRB check they should request the appropriate barred list check.
  • Repeal of ‘Controlled Activity’
    The controlled activity category will no longer exist.  From September organisations will not be able to check whether people who fell within this category are barred.
  • Repeal of registration and continuous monitoring
    This never came into force under previous legislation and the 2012 Act confirms that it will not be introduced.
  • Repeal of additional information, ‘brown envelope’ provisions
    The Act provides for an end to the disclosure of ‘additional’ information.  Previously, employers could receive this type of information when deemed relevant by the police to a recruitment decision for someone seeking to work with vulnerable groups under the Police Act 1977.  While this provision will no longer exist, the police may choose to use common law powers to provide information directly to employers in cases where this is necessary, for example to prevent crime or harm to others.
  • Minimum age (16) at which someone can apply for a CRB check
    Anyone aged under 16 will no longer be able to apply for a CRB check.  This will impact organisations who employ young people as volunteers or employees.
  • More rigorous ‘relevancy’ test for when the police release information held locally on an enhanced CRB check
    This refers to how the police decide what information is relevant and needs to be included in a CRB check.  Previously the police provided information held locally, on enhanced CRB certificates, when they considered it to be relevant to the purpose for which the certificate was requested.  This will continue but now the police will apply a more rigorous test before deciding whether to disclose information.  From September information will be included if they ‘reasonably believe [it] to be relevant’ and consider that it ought to be disclosed.  Due to the higher relevancy test less insignificant convictions or other information will be detailed on the certificates.
  • Challenges to information on CRB certificates
    Previously, an applicant for a CRB check who believed the information disclosed on their certificate was inaccurate could apply to the CRB for a decision about whether it was accurate.The 2012 Act will allow people other than the applicant to do that too.

Procedures which are not changing include:

  • Making appropriate referrals to the ISA.
  • Not engaging in regulated activity someone who is known to have been barred by the ISA.
  • Everybody within the pre-September definition of regulated activity will remain eligible for enhanced CRB checks, whether or not they fall within the post-September definition of regulated activity.

Overview of further changes taking place after September 2012

December 2012

  • The work of the CRB and the ISA will be merged into a single, new Non-Departmental Public Body.  This will be called the Disclosure and Barring Service (DBS).  This will carry out both the CRB’s and ISA’s functions.

Early 2013

  • The government are currently working to develop a new Update Service with a proposed implementation date of 2013.  This service will allow individuals who subscribe and pay a small fee to apply for a criminal check once and then, if they need a similar sort of check again, to reuse their existing certificate, with their organisation checking online to see if it is still up to date.  This is to avoid unnecessary repeat applications.

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