Breaching the Human Rights Act? DBS background checks

12 Mar 2015

Highly publicised child murder and abuse cases led to the establishment of the Criminal Records Bureau (CRB), launched in 2002. Incidentally, this was the year that Holly Wells and Jessica Chapman were tragically murdered by school caretaker Ian Huntley. It came to light during the trial that Huntley’s previous history included a number of arrests and allegations of rape and sexual offences against children. But the CRB was not in place at the time Huntley was hired by the school, which is how he slipped through.

The murders of Wells and Chapman highlighted the importance of the CRB and also led the CRB to tighten its procedures. 2012 figures showed that thanks to employers requesting CRB checks, more than 130,000 unsuitable people, including paedophiles and rapists, had been prevented from working with children or vulnerable people.

Background Checks In London

From CRB to DBS

Procedural and administrative dissatisfaction led to further changes to the system. The CRB was replaced by the Disclosure and Barring Service (DBS), emphasizing that it is not just about checking criminal records. In some cases it’s about a more general kind of background check, looking for relevant information held by the police that may indicate a danger to vulnerable groups. The changes to the system included the ability to ‘update’ a DBS certificate without having to go through the entire application procedure again.

What is an enhanced DBS check?

In certain professions such as schools, employers are entitled to seek an enhanced DBS check to make sure prospective employees are suitable candidates for working with children. These reveal the details you’d expect with a standard or basic disclosure check, including a list of reprimands, warnings, cautions and convictions. They also reveal any additional information held on file by the police that might be relevant, including allegations and call-outs that did not lead to a caution or conviction. The police decide what additional information will be added to the enhanced certificate.

DBS checks and the Human Rights Act

There is some argument that DBS checks breach the Human Rights Act. Some argue that certificates disclose details of minor, old and irrelevant previous convictions, which are highly prejudicial. They argue that a filtering system should be put in place to get rid of minor or old convictions.

In addition, enhanced checks cause problems because the ‘additional information’ could be allegations that have subsequently been proven false or lack any probative value. Again, disclosing such information highly prejudices the subject and makes it much more difficult for them to get a job. A counter argument is that the police use a ‘Quality Assurance Framework’ to decide what additional information is sufficiently relevant and probative to be added to the enhanced DBS certificate. One might still question this; should the decision as to what’s relevant be left up to the police, arguably not the most objective decision-makers when it comes to criminals and suspected criminals?

Furthermore, judges in the Court of Appeal in 2012 found that blanket criminal records checks are not compatible with the right to private and family life under the Human Rights Act. This means further changes to the ambit of the DBS might be in store.

What is a background check?

A DBS check is one type of background check, but there are many more. Background checks are often requested by employers looking into the suitability of new employees, but criminal history is not the only thing on employers’ minds. Sometimes employers want to know about an employee’s character, their fitness, their past mistakes and their credit history.

And it’s not just employers who seek background checks. Landlords often seek tenant screening checks to make sure prospective tenants don’t have a history of non-payment of rent. It’s also not unheard of for husbands and wives-to-be to seek background checks on their forthcoming spouse before they commit to spending the rest of their lives with them.

Detective agencies like Global Investigations are best placed for making background checks, from criminal records checks to nanny checks to credit checks to employment verification. They are well-versed in looking into the relevant parts of a person’s history and providing detailed and thorough reports for their clients. They are also very experienced in making sure clients stay on the right side of the law, because reckless or unskilled background checks can lead to human rights or unlawful discrimination lawsuits. That is the last thing employers want.

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