Disclosure and barring
After a review of the vetting and CRB regime, several changes have come into effect. ATL solicitor Jayne Phillips explains
In February 2011 the coalition government announced its review of the vetting and barring scheme and the criminal records regime. Its aim was to reduce the number of people falling within the scope of the Independent Safeguarding Authority (ISA) and improve the Criminal Records Bureau (CRB) process. Changes have now been made to the criminal records and barring arrangements with effect from September 2012.
In December 2012 the work of the CRB and ISA merged to create the Disclosure and Barring Service (DBS). For clarity, ISA and CRB will be referred to under their previous titles in this article.
Major changes from September 2012 are:
- a new definition of 'regulated activity'
- repeal of 'controlled activity' rule
- repeal of 'registration' and 'continuous monitoring' rules
- repeal of 'additional information' rule
- a minimum age of 16 at which someone can apply for a CRB check
- a more rigorous 'relevancy' test for when the police release information held locally on an enhanced CRB check.
Aspects that are not changing are:
- appropriate referrals must be made to the ISA
- a person barred by the ISA cannot be engaged in regulated activity
- everybody within the pre-September 2012 definition of regulated activity will remain eligible for enhanced CRB checks, whether or not they fall within the post-September 2012 definition.
Changes to the ISA
The difficulty with both systems is maintaining the balance between measures that are proportionate while, at the same time, ensuring they continue to provide effective protection for those who need it. Only time will tell whether this is achieved with the new system.
Looking at the changes in a bit more detail, firstly, a new definition of regulated activity will see a scaling back to focus on work that involves close and unsupervised contact with vulnerable groups including children. The vast majority of ATL members will still be covered by the scheme.
The controlled activity category has been repealed. It covered those who had less contact with vulnerable people, such as people who dealt with medical records. Some people may still be eligible for a CRB check, depending on the role.
The original idea of registration and continuous monitoring has been repealed, having never come into force. The original plan was that anyone working with vulnerable groups would need to register with the vetting and barring scheme and be continuously monitored for any new criminal record information, but this no longer applies.
Changes to CRB checks
The provision of additional information rule has been repealed. This would have enabled the police to provide sensitive information to the organisation and not the individual, separate to the enhanced CRB. The government says the police may still choose to use common-law powers to provide information directly to employers; for example, if it is necessary for crime prevention or to prevent harm to others.
Before September 2012 the police disclosed information on an enhanced CRB certificate if it 'might be relevant' and ought to be disclosed. Now the relevancy test means they should include information if they 'reasonably believe [it] to be relevant' and consider that it ought to be disclosed.
Further guidance on this has been issued and eight principles should be applied by the chief officer when completing the enhanced disclosure.
How much the new guidelines change things is open to debate. ATL suspects many chief officers will err on the side of caution and disclose information that it may not be strictly necessary to disclose. The measure of what is relevant remains highly subjective.
If information is included on an enhanced CRB certificate and the applicant does not think it should be, they will now be able to ask the Independent Monitor (IM) to review it. The IM can ask the CRB to issue a new certificate either without the information or with amendments to it. This is a much simpler process than a judicial review as the way to challenge an enhanced CRB disclosure. How successful they will be will also be interesting. Much will depend on how robust the IM is.
Another change, in early 2013, will see an update service introduced that will allow an individual to apply for a criminal record check once and then, if they need a similar check again, reuse their existing certificate, with their organisation checking online to see if it is still up to date. An updated factsheet on the DBS will be available soon on our factsheets page. Government information is available at www.homeoffice.gov.uk/disclosure-and-barring.