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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 78434
Experience:  Over 5 years in practice
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I am a professional and have been asked to for a DBS check

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Hi there, I am a professional and have been asked to for a DBS check to be completed. It has come back with a NFA in relation to various issues that happened over 8 years ago and were down to allegations my ex wife had made. Is there anyway this can be removed or does it stay on your file permanently.
JA: Where are you? It matters because laws vary by location.
Customer: Uk
JA: What steps have you taken so far?
Customer: Online
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no

Hi, welcome to JustAnswer. My name is*****’m a barrister with 12 years of experience and I am happy to help with your question today.

Are you asking if you can remove that?

Customer: replied 2 days ago.
correct

Thanks for the information

Ifyou believe the information on your enhanced certificate is inaccurate then youmay make a written application to the DBS seeking a newcertificate (section117(1), Police Act 1997). A new certificate will be issued where the DBS is satisfied of theinaccuracy in question (section117(2), Police Act 1997).

If it is accurate but you would rather it is not there then, Since10 September 2012, it has been possible for an individual to challenge theinclusion of relevant information by the police in an enhanced certificate, onthe basis that it is not relevant for the purposes for which the certificate isbeing sought or otherwise ought not to be included in the certificate (section 117A, Police Act 1997).This new provision was inserted into the Police Act 1997 by section 82(5) ofthe PFA 2012.

Achallenge will be considered by the independent monitor appointed under section 119B ofthe Police Act 1997. The monitor will ask the police who provided theinformation to review their decision and will then decide (having regard to anyavailable guidance) whether a new certificate should be issued.

Ifthe applicant is still unsatisfied they may apply for judicial review.

Thereare some cases that have considered this. In RK v Chief Constable of SouthYorkshire Police and another [2013] EWHC 1555 (Admin),the High Court considered whether it had been appropriate for the police todisclose to prospective employers details of sexual assault allegationsrelating to events nine years previously when the claimant, a teacher, hadallegedly inappropriately touched the bottoms of teenage students. He had beenacquitted at trial. The court held that the fact of an acquittal did notautomatically render disclosure of relevant material disproportionate. However,the court also held that the fact that the allegations had failed was a matterof "significance" in assessing whether disclosure was proportionate (paragraph 37).The court found on the facts of the case that the police had failed to pay anyproper regard to the significance of the acquittal and instead had adopted ablinkered view, grudgingly noting the fact of the acquittal but then proceedingto address the allegations as if they had been proved, referring to them as"offences" rather than "failed allegations". The courtquashed the disclosure decision and gave a view of what it considered the realparameters for disclosure should be in light of the facts (paragraphs 83 to 90).

Byway of contrast, in R (AR) v Chief Constable ofGreater Manchester [2018] UKSC 47 theSupreme Court upheld a decision to reject an individual's challenge underArticle 8 of the ECHR against the inclusion ofinformation in an enhanced criminal records certificate about a rape charge, ofwhich he had been acquitted. The court held that a High Court judge had beenentitled to find that the enhanced certificate, issued in relation to work as ateacher, and subsequently in relation to work as a minicab driver, did notbreach the individual's right to a private life. In the circumstances,reference to the rape acquittal was reasonable, proportionate and no more thannecessary to secure the objective of protecting young and vulnerable persons.The High Court had also been entitled to reject the argument that failure toconsult the individual before the decision was made to include the disputedinformation in the enhanced certificate was in itself a breach of Article 8.Although the Article 8 case law has in some cases imposed a requirement toconsult an individual prior to making certain information known, there had beenno need for the police to consult in this case as it was not a borderline caseand the subject had already made prior submissions to the police in relation tothe inclusion of the same information in an earlier certificate. A furtherchallenge that the disclosure contravened the presumption of innocence underArticle 6(2) of the ECHR was rejected by the Court of Appeal (R (R) v Chief Constable ofGreater Manchester Police [2016] EWCA Civ 490)and was not pursued further.

Can I clarify anything for you?

Hopefully, Ihave answered your query in a way that is simple and easy to understand. If anythingremains unclear, I will be more than happy to clarify it for you. In themeantime, thank you once again for using our services.

Jo

Customer: replied 2 days ago.
Hi Jo. So what is best way forward. Contact DBS?
Customer: replied 2 days ago.
Really great reply too.
Customer: replied 2 days ago.
One other thing i have a spent criminal record for perverting the course of justice. However this has not appeared on the enhanced check? Why is that?

if it is accurate but you would prefer it wasn't there then you would have to use the appeals system.

your conviction should be on your DBS system but I wouldn't raise that and remind them to do it.

Jo C. and 2 other Law Specialists are ready to help you
Customer: replied 2 days ago.
Thanks Jo