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Getting started with criminal records checks

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Overview

You must make sure that your trustees, staff and volunteers are suitable and legally allowed to carry out the role which you want them to take in your organisation. Understanding someone’s criminal history can be an important part of deciding who you work with. You can do this by:

  • asking people to tell you about their criminal history
  • requesting/obtaining a criminal record check of a person at one of three different levels (known as a DBS check)
  • checking if the individual is  barred from working with children or adults at risk alongside the highest level of DBS check (the legislation still refers to ‘vulnerable adults’ rather than the current term)
Five things to remember about looking into criminal history 
  • In order to decide which checks you should take you need to understand a complex legal framework and then make judgement calls on best practice for the level of risk in your organisation. There are tools that can help you.
  • The law sets out when roles will be eligible for DBS checks at different levels. It makes it an offence to employ (or work with in the case of volunteers and others) individuals who are on the barred lists to undertake certain activities in respect of children and adults at risk. It also makes it an offence to knowingly seek a check for a person if the role they are being considered for isn't eligible.
  • The rules about when certain levels of check are available are different for roles working with children or with adults. They also vary depending on the activities you’re carrying out and how often and in what situations you carry them out.
  • If you’re carrying out any criminal records checks then you should have a policy on recruitment of ex-offenders. You need to make sure you’re using the checks fairly and in accordance with the law and best practice. Applicants can ask to see the policy.
  • You cannot rely on criminal history as your only way of deciding whether someone is suitable. You must make it part of a wider safeguarding risk assessment and safer recruitment practices. Many people who have harmed others previously or are otherwise unsuitable for a particular role at your organisation may not have any criminal record. 

This page gives you some information about criminal records checks and links to tools that help you understand the law as it applies to the roles in your organisation.  It may also be advisable to seek specific legal advice about your obligations in this area.

Plan for specific roles

When you’re planning a new staff or volunteering role you should carry out a role risk assessment. This will help to identify the potential risks involved with that role. This is important for overall good risk management and safeguarding planning, particularly for the wider safer recruitment process. It will also help determine what information you might reasonably need about their criminal history.

You can then apply the eligibility criteria for different levels of criminal record check to the job description to help you to decide which check you need and are permitted to carry out.

Carrying out a role risk assessment for safeguarding involves mapping out:

  • what that role holder will do
  • the level of contact they have with children and/or adults at risk
  • the level of supervision they will have
  • how often the person will carry out the role
  • where the role is undertaken

This is just an introduction to role risk assessments. You'll need to use it alongside with further guidance.

  • You can find an example a role risk assessment in our introductory page on choosing staff and volunteers or more information about the wider process in our HR managers’ guide and our volunteer managers guide.
  • In terms of making decisions, you should use your role risk assessment together with DBS eligibility guidance. See the section about deciding which checks to take below. Don't forget that DBS checks can only be obtained for certain roles.  In addition, only employers and licensing bodies can request a Standard or Enhanced DBS check, though a Basic Check can be requested by the individual/applicant themselves.
  • Checking trustees is a specific situation. See our update on current guidance regarding criminal records checks for trustees

Asking about criminal history

If you decide it is relevant to know about someone’s criminal record, you’ll need to ask them. Remember that:

  • they don’t have to volunteer any information unless you ask for it
  • you should only ask about the criminal record of a potential new staff member or volunteer when they have already met other recruitment criteria and after making a conditional role offer (but before they start in  the role)
  • you can use a criminal record self-disclosure form so that people understand how to answer
  • most convictions and all reprimands, cautions and warnings are considered ‘spent’ after a period of time and in most cases people have a legal right not to disclose these ‘spent’ convictions
  • you should have a recruitment of ex-offenders policy in place
  • you cannot ask an individual to make a subject access request (designed for individuals to find out what information the police hold about them) as part of asking about their criminal history
Example
DrugsFocus East provides support to drug users. They are redesigning their volunteer roles and undertake a risk assessment on each role. They decide that volunteers assisting with fundraising will not need any criminal record checks as they will have limited contact with those at higher risk of harm and will be supervised. After interviews they ask volunteers to complete a self-disclosure form. Two volunteers have spent convictions for possession which they choose to share on the form. They review this form and consider whether these spent convictions pose any risks to the people who will come into contact with them in the process of fundraising. They agree that the spent convictions do not pose a risk in this particular role and the volunteers join the team.

Types of criminal record check

There are four different types of criminal record check available for people over 16 years old (people cannot be checked below this age).

  • A Basic Check: These give information about unspent cautions or convictions only. These can be carried out for most roles. They can be requested by the person themselves or by the organisation that employs them or which intends to employ/work with them (as staff or volunteers). There is a fee for a Basic Check, which applies to volunteers as well.
  • A Standard Check: These show spent and unspent convictions, cautions, reprimands and final warnings. These can only be carried out for certain eligible roles. They cannot be requested by the person themselves, only by an employer or recruiter. There is a fee for a Standard Check, but this does not apply to all volunteers.
  • An Enhanced Check: These show the same as a standard check plus any information held by local police that’s considered relevant to the role. These can only be carried out for certain eligible roles. They cannot be requested by the person themselves, only by an employer or recruiter. There is a fee for an Enhanced Check, but this does not apply to all volunteers
  • An Enhanced Check with barred lists: These show the same information as an enhanced check. They also disclose whether the applicant is on the list held by the DBS of people barred from  carrying out certain activities with children or adults (depending on which group the individual will be working with). These can only be carried out for certain eligible roles. If someone is included on a barred list then they must not carry out ‘regulated activity’ within the workforce they are barred from and it is an offence to employ a staff member or allow a volunteer to do so.  These checks cannot be requested by the person themselves, only by an employer or recruiter. There is a fee for an Enhanced Check with barred lists, but this does not apply to all volunteers

The checks will be carried out by different organisations in different countries, based on the law there.

  • For activities/roles in England and Wales, criminal record checks are carried out by the Disclosure and Barring Service (DBS).
  • For activities/roles in Scotland, criminal record checks are carried out by Disclosure Scotland and the rules are different to those set out here.
  • For activities/roles in Northern Ireland, criminal record checks are carried out by the Access NI and the rules are different to those set out here.

Deciding what checks to carry out

You can use the tools and guidance provided by the Disclosure and Barring Service, or seek expert advice to decide what level of check you’re eligible to request for different roles. It is an offence to knowingly carry out a criminal check of a particular level (other than a basic check) if you’re not entitled to do so. You must take care when you work out the appropriate level of checks to carry out.

There are certain roles or activities which would amount to what is known as regulated activity, where enhanced checks with barred lists are required by law. This is the definition. 

a) caring for adults, including health care, personal care, conveyance (transport), social work or assistance in relation to household matters; or
b) educating or caring for children under 18 unsupervised, including providing advice/guidance on wellbeing or conveyance  (transport) of children OR working in an establishment (premises) with opportunity for relatively frequent contact with children (e.g. schools, childcare).

If your activities could be considered within that definition, then you should pay particularly careful attention to the DBS eligibility guidance to check whether you have a requirement to carry out an enhanced check with a check of the barred lists for applicable roles.

The frequency of the activity, in connection with work with children, will determine whether or not it may amount to a regulated activity. Also be aware that day to day management or supervision of any person carrying out a regulated activity, also constitutes a regulated activity.

Once you have made sure you’re complying with the law, you should also consider what is proportionate and appropriate for the level of risk involved in the role and activity.

  • The Charity Commission expects that you should always seek the highest level of check that a role is eligible for and encourages you to carry out basic checks for any roles which work with children or adults at risk, as a minimum.
  • It doesn’t matter whether the person carrying out the role is a staff member or volunteer. It depends on the risk assessment of the role and its eligibility for checks being carried out.
  • It is up to your organisation to decide how often you seek new checks. The certificate is only accurate up to the day it is issued. You should set a timeframe that is manageable and proportionate to your level of risk. A three-year period, unless there is a need to update the check sooner, is common.
  • You should keep a list of DBS checks you have carried out and when  when they have been undertaken. You should not keep the certificate itself once a recruitment decision has been made and any disputes settled.
  • Standard and enhanced checks can be registered with an online subscription to the update service. This allows you to check any updates to their certificate.
  • If you’re carrying out checks you must comply with the DBS code of practice making sure that information released is used fairly.
  • You must always have an applicant’s consent to carry out a check and to use the update service.
  • Checks usually only include UK offences. If an applicant has been resident overseas you’ll need to check their records in that country. 
Example
A students’ union organises a group of student volunteers to deliver classroom based workshops in a local secondary school for an hour a week. The volunteers work with children in groups of 4 to 10 at a time, with the teacher present throughout the sessions. They agree with the school that no DBS check will be needed as the group will always be supervised by staff (who have had  DBS checks carried out) when they are with the children.
Example
A Buddhist meditation centre runs weekly classes for adults. The teacher is the sole member of staff working with the class but the centre receptionist is present in the building. The class members change into leisure wear at the centre. A 15 year old boy with mild learning difficulties wanted to join. The centre decided that as a child has joined the class, the teacher’s work would come into the category of Regulated Activity, so they needed to undertake a barred list check as part of a DBS check. They did this and the boy joined the class.

Help and support with requesting checks

You can register your own organisation to carry out criminal checks on your staff, volunteers and trustees if you process over 100 checks a year. You’ll need to use a service (called an umbrella organisation) to process those checks if you require less than 100 standard or enhanced checks to be carried out in a year. Basic checks you can either process as an organisation, via an umbrella or ask the individual to request the check and share it with you.

  • All DBS checks have costs to the actual check that vary by level
  • Volunteer roles which meet certain criteria and are eligible for standard or enhanced checks may be able to have those checks taken free of charge
  • Checking services will add administration fees to the cost of the check, you should make sure that these are reasonable
  • Although many levels of check are carried out by the organisation, the disclosure certificate is sent directly to the person it relates to.
Example
Smile Charity has six employees and 12 volunteers who work in pairs to run year round confidence building classes for young people recovering from serious illness. These are in independent venues and no other adults are present. They needed to sign up with an umbrella agency to take enhanced checks with a barred list check. The agency they found charges them a fee for for checking prospective/existing employees which includes the fee for the check plus an admin charge which Smile decide is reasonable. For checks on volunteers it charges them just the admin charge.
  • Unsure whether you can get a free check for volunteers? See the DBS guidance on applications for volunteers (from .gov.uk). This will help you to make sure that the volunteer role meets the criteria required by the DBS.
  • Need to speak to DBS for further advice or to register?  Call 03000 200 190 or email customerservices@dbs.gsi.gov.uk
  • Want to look up current fees? They’re in the how much it costs section of DBS advice on checking employees (from.gov.uk)
  • Considering finding an umbrella organisation? Disclosure Services is an NCVO Trusted Supplier and a DBS criminal record check service. They provide basic, standard and enhanced DBS criminal records checks and barred list checks on applicants and the system is reliable, easy to use, fast, accurate and fully secure. NCVO members benefit from up to 40% savings on Disclosure Services standard admin fees.

Working overseas

There are two different situations related to working overseas.  

If you have a UK based opportunity that someone is applying for, and they have been based overseas for more than three months in the last five years you need to use the Home Office guidance on criminal records checks for overseas applicants.

If you’re creating opportunities for people to work or volunteer overseas and they live or have lived in the UK, you can ask them to get an International Child Protection Certificate (ICPC). The police guidance on ICPC explains the information that it provides.

Checking trustees

When you assess a trustees’ role to see what kind of checks you need to carry out, there is some additional information you need to consider.

In terms of safeguarding there is no legal requirement that says 'all trustees must have [x] level of DBS check'.  Instead, the Charity Commission expects criminal record checks to be carried out where the position in question is eligible for such checks. The type of check which should be carried out is dependent on both the charity’s activities and the specific role which the trustee carries out.

Failing to make these background checks can put people’s safety at risk. It can also put the reputation and/or assets of the charity at risk if an individual appointed as a charity trustee proves to be unsuitable to hold that position. The Charity Commission may consider this to be mismanagement or misconduct.

These statements can be helpful in making your decisions.

  • Any organisation is allowed to ask any trustee to undertake a basic level check.
  • If a charity normally engages in work with adults at risk or children, then it is eligible to apply for an enhanced DBS check for its trustees (and applicants for trustee roles), but there is no automatic eligibility for the additional barred list check. If the charity’s work does not normally involve this type of work, then a standard or enhanced DBS check may not be necessary.
  • If the trustee specifically carries out a role which amounts to regulated activity (or they supervise or manage people who do)  then they’re eligible for an enhanced DBS check which includes a barred list check. (see deciding which checks to take earlier in this page). Charities should pay attention to any particular trustee’s role which will involve them carrying out activity that makes the role eligible for this further check.
Example
Acorn Heritage House runs a visitor centre for a restored industrial mill. They have schools and community groups visit for workshops and are open to the public. The trustees decide to require all current and new Trustees to have a Basic DBS check. The certificates are only shown to the CEO and Chair and they will discuss with the individual any issues arising from the checks.
Example
Salwood Dementia Support Association is a charity that provides a range of care and support for Afro-Caribbean adults with vascular dementia in their local area. They require all trustees to have an enhanced DBS check. Any Trustee who is also involved in the delivery of its regulated activity will have an enhanced DBS with barred list check.

In addition to your safeguarding responsibilities you’ll also be expected to make sure that your trustees are not disqualified by law from acting as a charity trustee. The Charity Commission has published a declaration form which must be signed by charity trustees who apply for registered charity status.

Keeping information safe

 As well as your list of DBS checks you have requested and certificates you have seen, you should also  keep a record of everyone who has seen certificates or the information from them. 

It is against the law to:

  • share information contained from a DBS certificate with any person who is not involved in your organisation, unless a relevant legal exception applies.
  • share information with anyone in your organisation unless it is necessary for them to have the information to carry out their duties knowingly make a false statement for the purpose of obtaining, or enabling another person to obtain, a certificate.

The DBS code of practice states that all registered bodies must have a written policy on the correct handling and safekeeping of DBS certificates and certificate information. Organisations must also take care to comply with their obligations under the General Data Protection Regulation (GDPR), Data Protection Act 2018 and other relevant legislation regarding the safe handling, retention and disposal of certificate information.

When someone has a criminal record

If you find out someone has a criminal record, either because they choose to tell you or it is on the DBS Certificate that comes back from the check, you should conduct a risk assessment. This should focus on whether the offences revealed are such that they make them unsuitable for that particular role and/or what measures could be put in place to still enable them to undertake the role safely, such as additional supervision or limiting their duties. You should try not to discriminate unfairly against people with a criminal record. You should always make your decision by considering the specific context of any criminal record you become aware of.

Key issues to consider.

  • What are the offences and how serious are they?
  • What were the circumstances of the offence?
  • How relevant are the offences to the role they want to do?
  • What particular risks affect the people who the individual will have contact with in their role?
  • How old was the person when the offence was committed?
  • Was this a one-off or a pattern of offending?
  • What were the circumstances of the person at that time and now?

You should discuss this issue with the individual and record your decision. You should ensure that you prioritise the safety of everyone in contact with your charity and do so in an evidenced and risk-based way.

Example
YouthAct offers advice, support and guidance to vulnerable young people. For some volunteer roles they request a Standard DBS Check. David’s DBS check comes back with convictions for drugs possession, drunk and disorderly behaviour and an assault. The Volunteer Co-ordinator discusses this with David and the circumstances then and now. These events all took place several years ago and David is now in a different, more stable stage of life. Following receipt of current references, they proceed with appointing David as a volunteer.

 

Page last edited Oct 07, 2019

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