Police Disclosure – Enhanced Disclosure Principles

How to Challenge a DBS Record (Disclosure and Barriing Service)How to Challenge an Enhanced DBS Record

A doctor (or PA or AA) who is investigated by the police but not prosecuted might see the police seek to include a reference to the concerns raised in their enhanced Disclosure and Barring Service (DBS) record. Under the enhanced section of the disclosure, employers in certain sectors (healthcare, security, childcare) will have access to it, which could result in them not being employed.

In L, R (on the application of) v Commissioner of Police of the Metropolis [2009] UKSC 3 (29 October 2009), the Supreme Court considered the legal principles for inclusion of such concerns.

Also, in R (on the application of J) v The Chief Constable of Devon & Cornwall [2012] EWHC 2996 (Admin), by way of judicial review to the High Court, it was determined that the police must be cautious about relying on unproven facts where there has been no criminal charge or conviction and no local disciplinary action. The police must ensure that ‘any other relevant information’ being considered is of sufficient weight and that there is a pressing social need to include it. The court made a number of findings:

  1. Applicability of Article 8 (Right to Private Life): The Court confirmed that disclosure of non-criminal information by police in enhanced criminal records certificates (ECRC) engages Article 8 of the European Convention on Human Rights, as it affects reputation and employment prospects.
  2. Proportionality Test: The police must assess whether disclosure is proportionate, balancing the public interest in protecting vulnerable persons against the individual’s right to privacy. Neither interest should automatically take precedence.
  3. Two-Stage Analysis for Disclosure: Police must consider (i) whether the information is reliable and relevant, and (ii) whether disclosure is proportionate in light of the public interest and the likely impact on the applicant.
  4. Consent Not Automatic: Applying for a position requiring an ECRC does not mean the applicant consents to any violation of privacy rights; consent must be meaningful and not assumed.
  5. Opportunity to Make Representations: If the information is potentially irrelevant, unreliable, or outdated, the applicant should be given a chance to make representations before disclosure.
  6. Factors for Proportionality: The Court outlined factors to consider in assessing proportionality, including the gravity, reliability, and relevance of the information, the elapsed time, the opportunity for representations, and the adverse effects of disclosure.
  7. Historic Police Approach Flawed: The Court found the previous police practice of generally prioritising public interest over privacy rights was incorrect; a careful, case-by-case balance is required.

Further, if a registrant is unhappy with the contents of the eventual recorded DBS disclosure record, they can complain to the Home Office’s Independent Monitor, who is appointed by the Secretary of State under section 119B of the Police Act 1997, in a fully independent role, separate from both the police and the DBS. Firstly, a complaint must be made to the DBS, and then to the independent monitor at:

Independent Monitor
Home Office
3rd Floor Peel
2 Marsham Street
London
SW1P 4DF

Email them at: independentmonitor@homeoffice.gov.uk

For more information on challenging the contents of a disclosure and barring record, contact Doctors Defence Service on 0800 10 88 739 or use our contact form.