Our legal system is constantly evolving, with new crimes being added all the time, and old laws being struck from the record. To complicate matters further, Scotland and Northern Ireland have separate legal systems from England and Wales, and this makes things complex when applying for DBS or Disclosure checks. One recent ruling has clarified the position for men convicted under repealed legislation, who faced having past convictions listed on DBS checks.
The new legislation which has been passed by the Scottish Parliament is called the Historic Sexual Offences Act, and primarily affects gay men. Until 1980, homosexual relationships between men were illegal in Scotland. This is in contrast to England and Wales, where homosexuality between men over the age of 21 was decriminalised in 1967. Men convicted of same-sex sexual activity had a criminal record, which had to be declared on job applications and potentially revealed on a disclosure check.
The new legislation is designed to recognise that times have changed, along with attitudes. The Act grants an automatic pardon to any man convicted under the old legislation. These men can then apply through the courts to have any offences disregarded. This means that although the offences will never be removed from the police database entirely, they will never show up on even the most detailed enhanced disclosure checks. The exact number of men affected by the new changes is unknown.
What Shows Up on Enhanced DBS?
An enhanced DBS check, or an enhanced disclosure as it is known in Scotland, is the most detailed level of check. Detailed checks are reserved for people working with vulnerable groups; usually children, but also the elderly or people with health or social are needs. An enhanced disclosure looks at not only the most recent offences or cautions on your criminal record, but also older offences which might be considered spent and forgotten in other circumstances.
Whatever level of disclosure you have applied for, the official body processing the check goes through a process called filtering. This means that the police look at the offences on your record (if any), and the type of position you have applied for. They will then “filter out” any old offences or cautions which they don’t think are relevant to the position. It’s a balancing act, and the police have to bear in mind the potential risk of not telling an employer about your past. On the other hand, there is a general move towards allowing ex-offenders the chance to make a fresh start and leave very old offences behind them. This is especially the case when someone has just one or two very minor crimes in their teenage years and have many years of being a responsible citizen in the interim.
Some crimes are too serious ever to be filtered out. Although the decision-making process is different in every situation, the general guide is that any crime which has resulted in prison time will never be filtered out.