Confusion over filtering legislation and DBS checks for accountants

We were contacted by an individual who was looking to become a member of the Association of Chartered Certified Accountants (ACCA) and had been asked to complete a declaration form which contained the following wording:

“I confirm that I have now read the notes section and:

I have not been subject to any criminal conviction and/or caution.

I understand that the UK Rehabilitation of Offenders Act 1974 does not apply to the accountancy profession, and that I am therefore required to disclose spent convictions, that is convictions irrespective of its age and/or type.”

The individual was aware that his conviction would be filtered from a standard and enhanced Disclosure and Barring Service (DBS) certificate and wanted some advice about what he was required to disclose.

Although we believed that the ACCA were entitled to carry out a standard DBS check (which can be done for entry to the profession as a chartered accountant or certified accountant), we were concerned that they had made no reference to the filtering legislation which had been introduced in May 2013 – this allowed for certain old and minor cautions/convictions to be removed (filtered) from standard and enhanced certificates. Individuals whose cautions/convictions were filtered no longer needed to disclose them for roles that involved a standard disclosure.

We contacted the ACCA, highlighting the new legislation and explaining to them that the current wording on their declaration form meant that there was every possibility that people could get put off from applying, or an applicant may over disclose their criminal record and could run the risk of being refused entry to their chosen profession on this basis. This could then have legal implications to them as an organisation.

A couple of months later, we received notification from the ACCA informing us that they had reviewed their declaration form and amended the wording to read:

“I understand that the UK Rehabilitation of Offenders Act 1974 does not apply to the accountancy profession and that I am required to disclose any convictions and/or cautions, that are not ‘protected’ as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1974 (as amended in 2013). The amendments to the Exceptions Order 1974 (2013) provides that certain spent convictions and cautions are ‘protected’ and are not subject to ‘disclosure’”

They also informed us that they had undertaken a review of all applications from May 2013, and were happy that they had not refused admission to any applicant on the basis of protected convictions/cautions.

 

Lessons

This case showed how confusing changes in legislation can be for organisations. Once we had raised our concerns with the professional body, they were happy to engage with us and not only amended the wording on their declaration form but also considered whether any previous applicants had been affected.

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Christopher Stacey