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How the Latest High Court Challenge to the Disclosure and Barring Service raises issues closer to home than you think

10 Nov 2017

An instant online; a lifetime of regret.

The Disclosure and Barring Service (DBS) carries out DBS checks (formerly CRB checks) which in principle are a vital safeguarding tool to society to ensure that the public is protected. The check identifies key information such as criminal convictions and cautions as well as whether the individual’s name is contained on lists, barring them from working with children or vulnerable adults.

Enhanced checks also identify ‘soft information’ which is held by local police forces which means that an entry can be made when an allegation is made to the police which does not result in a prosecution or formal sanction, but the police deem is relevant to disclose on the DBS check.

The need to disclose relevant information needs to be measured against the rights of an individual under Article 8 of the European Convention on Human Rights to respect for one’s “private and family life”. Any disclosure needs to be relevant and proportionate.

It is the disproportionate nature of the system which has been challenged over the years in the courts. In 2013, a filtering system was introduced to allow for the removal of the need to disclose single convictions and/or cautions after a set period of time. The fact that filtering does not apply to anyone with multiple convictions has been successfully challenged in the courts as being disproportionate.

However, the filtering process does not relate to any ‘soft information’ and it is left to the discretion of the police to determine at first instance the relevance and whether to disclose. It is this procedure which is the subject of the latest case being considered by the High Court which may be decided today and the facts surrounding this case may be closer to home in modern online society than you think.

All teenagers are joined to their mobile devices or tablets, with many obsessed with keeping up with social media. The culture is constant, immediate and the long-term consequences of instant reactive posts are rarely considered. The case today relates to one such teenager, a 14-year-old boy, who sent a naked image of himself to his similarly aged girlfriend. The Police became aware of the image but no criminal action was taken. But the fact remains that the police now have “soft information” about the boy which can, at the discretion of the police, be forever disclosed to future employers. An instant to send; a lifetime to regret.

The case is challenging the extent to which such actions by individuals can be held against them indefinitely and Richard Nelson LLP will be considering its findings with interest as it will affect the rights of all.

Written by Jonathan Wright

Jonathan Wright joined Richard Nelson LLP in 2006, having previously spent nearly ten years defending complex business crime and fraud cases. He became a partner in 2009. Jonathan's success as a criminal defence solicitor and tax investigation specialist has led to many accolades from the Legal 500.

Read more about Jonathan Wright.

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