How applicants can make representations to the Chief Officer about information they may release on a DBS certificate.
In certain circumstances, if the Chief Officer of the relevant police force is considering the release of information, 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 really does require 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- where the information may indicate a state of affairs that is out of date or no longer true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
- if the subject appears unaware of the information being considered for disclosure
- if the facts are not clear and are in dispute
Supreme Court Judgement
This 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 process. The court referred to the role of the Chief Officer who is required to:
- determine whether information ‘might be relevant’ to the application
- determine whether 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 the ‘ought to be included’ element.
The process of making representations will mean that where a force considers the information which they intend to disclose may be regarded by the subject as false, unreliable or out of date or where the outcome is not known, the subject should be able to review the information and make representations about the information and its proposed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, shed more light on the matter:
‘60. …typically, where a chief officer is considering the issue 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 QAF (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 ask the subject for further information for the purpose of representations
- the force should inform the subject that written representation is available to them
- 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 is to send either the proposed disclosure text or details of the information required, within two copies of a standard agreed template letter, accompanied by applicant guidance
- the force is to monitor 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 to provide written representations
- within the body of the letter, the force should provide a specific postal address for return
- if the subject does not respond to the force within 14 days of signing for receipt, the force is to issue a reminder letter to the subject and provide a further seven days for response. The force will advise that if no response is made within seven days, the proposed disclosure text will be released on the enhanced DBS certificate
- in each instance, the force is to 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