The process for making representations to the Chief Officer, regarding information that may be released on a DBS certificate.
In certain circumstances, if the Chief Officer of a relevant police force is considering the release of information regarding an applicant, the subject of the information may be given the opportunity to provide representations about the information that is being considered for release.
This is only applicable in certain circumstances, such as:
- if it is unclear whether the position for which the applicant is applying requires the disclosure of such information
- where the information may indicate a state of affairs that is out of date or no longer true
- if the subject has never had a fair opportunity to answer the allegation(s)
- if the subject appears unaware of the information being considered for disclosure
- if the facts are unclear and in dispute
Supreme Court judgement
The need for representation was highlighted in a Supreme Court judgement on 26 October 2009 that considered the impact of the information released by the police on the applicant, as part of the enhanced DBS check process. The court referred to the role of the Chief Officer, who is required to:
- determine if information ‘might be relevant’ to the application
- determine if the information ‘ought to be included’
The court focused on the second element and considered the impact that the release of information could have on an applicant, if the Chief Officer did not properly assess if the information ‘ought to be included’.
The process of making representations means that where a force considers that the information intended for disclosure may be regarded as false, unreliable or out of date, or where the outcome is not known, the subject should be able to review the information and make representations about the information and its proposed release.
Subsequent to the Supreme Court judgement, the case of R (B) v Derbyshire Constabulary, 16 September 2011, provided further insight into the matter:
…typically, where a Chief Officer is considering the issues of an ECRC, it is likely to be appropriate for him to afford the applicant an opportunity to make representations, unless, for example, the facts are clear and not in dispute…
– Munby LJ, R (B) v Derbyshire 2011.
To support this process, part of the Quality Assurance Framework (QAF v9) has been updated to reflect the judgement.
The representations process will operate within the Quality Assurance Framework (MP7 and MP8 stages – the final part of the process), undertaken by senior practitioners and the Chief Officer of the relevant force.
Where the Chief Officer considers that representations should be afforded:
- the force should inform the subject that they require them to either view the proposed disclosure text, or provide further information for the purpose of representations
- the force should inform the subject that written representation is available
- the force should provide two copies of the appropriate representation letter – the subject will keep one copy for their own records
- the force should issue a reminder letter to the subject if no response is received within the specified time
The force must monitor the delivery status and record the date of receipt by the subject. The letter will advise the subject that they have 14 days from receipt to review the content and provide written representations. A specific postal address for return should be provided within the body of the letter by the force.
If the subject does not respond within 14 days of signing for receipt, the force must issue a reminder letter and provide a further 7 days for response. The force will advise that if no response is made within 7 days, the proposed disclosure text will be released on the enhanced DBS certificate.
In each instance, the force must record the details (the rationale for offering representation; the dates sent/received; the subject response; and the rationale for the decision outcome) with their QAF audit trail documentation.