Filtering rules have changed – are you asking the right question?

Asking the right question

If you carry out standard or enhanced DBS checks you’ll know that the rules on what can be filtered have recently changed. Filtering is the process by which some cautions and convictions are removed – ‘filtered’ – from DBS certificates, according to rules set by Parliament.

Reprimands, final warnings and youth cautions are now immediately filtered. A conviction or adult caution will now be filtered from standard and enhanced DBS checks provided: 

We have updated our guidance for employers to reflect the changes and this blog explains why we recommend asking applicants just one question about criminal records. 

Standard and enhanced DBS checks 

Employers recruiting for certain jobs are entitled to ask applicants about cautions and spent convictions, as well as unspent convictions. These jobs are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (the exceptions order’). Employers for these roles are often required – either by law or regulation – to carry out a standard or enhanced (with or without barring list) check, depending on the role. Eligibility for standard and enhanced checks is detailed in the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 (‘the Police Act’).  

Cautions and spent convictions must be disclosed because these roles are sensitive or involve working with children or adults at risk. However, employers for exempt roles must not ask about filtered cautions or convictions, and should ignore them if they are disclosed. Filtered cautions and convictions are no longer considered relevant, even for sensitive roles or work with children or adults at risk. Filtered cautions and convictions will not be disclosed on a standard or enhanced DBS check. 

When a conviction is filtered but not ‘spent’ 

In a small number of cases an applicant can have an unspent conviction (so it would appear on a basic DBS certificate) that will be filtered from a standard or enhanced certificate. This is not a result of the new filtering rules, and it’s very rare, but it’s important employers are aware of it.  

Judges can add ‘relevant orders’ to any sentence. Some are designed to redress harm to victims – such as compensation orders. Others are preventative, such as criminal behaviour orders, restraining orders, disqualification from driving or being a company director or trustee, or bans on keeping animals or attending football matches. 

Relevant orders can be time limited or indefinite. Where a relevant order is given as part of the sentence the conviction cannot become spent until the relevant order ends. Provided the conviction is not for a specified offence and did not result in a custodial sentence, convictions that remain unspent solely because of a relevant order will become filtered from standard and enhanced DBS checks once the relevant time period has passed even though they remain unspent. The time periods are 11 years for those convicted as adults, 5.5 years for those convicted under 18, so a significant period without reoffending. 

Applicants are entitled to withhold information about cautions or convictions that are filtered, even if they are unspent and they will not appear on a standard or enhanced DBS check. 

Asking for self-disclosure 

Although there is no legal obligation on employers to do so, most ask applicants to self-disclose. Employers will want to make sure any questions asked during recruitment avoid collecting information about filtered cautions or convictions (including those that are unspent). For this reason, we recommend asking: 

“Do you have any convictions or cautions that would not currently be filtered by the Disclosure and Barring Service (DBS)? [You do not need to disclose reprimands, final warnings or youth cautions or anything that would be filtered by the DBS]”  

An applicant with an unspent but filtered conviction could honestly, accurately and legally answer no to this question. The self-disclosure can be verified by carrying out a standard or enhanced DBS check.  

The importance of asking in the right way 

Employers can choose to ask a separate question about unspent convictions – for example:

Do you have any unspent conditional cautions or convictions under the Rehabilitation of Offenders Act 1974? (Y/N)? 

An applicant with an unspent but filtered conviction would have to answer yes. The employer would only be able to verify this information by carrying out a basic (as well as a standard or enhanced check). The employer would then be legally obliged to ignore an unspent caution or conviction if it is filtered. 

An applicant with an unspent conviction that is not filtered will also answer yes to this question. However, an unspent and unfiltered caution or conviction will be disclosed on a standard or enhanced DBS check, so these applicants would also answer yes to the following:  

“Do you have any convictions or cautions that would not currently be filtered by the Disclosure and Barring Service (DBS)? [You do not need to disclose reprimands, final warnings or youth cautions or anything that would be filtered by the DBS]”  

Asking a specific question about unspent convictions does not benefit an employer in a meaningful way – it either duplicates information that can be obtained by asking a single question, or risks collecting information that must then be ignored. It also requires the employer to carry out a basic DBS check to verify the self-disclosure.  

If it’s not on the DBS check, it’s not relevant 

Employers will need to decide what works best for them, but we think the example of NHS Employers is one others could comfortably follow. Their declaration form for exempt roles asks applicants to disclose

“…all criminal convictions and/or cautions that are not protected (i.e. eligible for filtering) under the Exceptions Order (as amended).” 

It may seem odd that an applicant can withhold information about an unspent conviction for an exempt role but bear in mind this will be rare and only for minor offences. Sexual offences, serious violence, terrorism or safeguarding offences can never be filtered. Any offence that resulted in a custodial or suspended sentence can also never be filtered. If a caution or conviction does not appear on a standard or enhanced check, it’s fair to say that is because it is no longer relevant.

For more information on filtering see our guidance

For advice on collecting and assessing criminal records for recruitment purposes contact recruit@unlock.org.uk

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Rachel Tynan