October 2019 - Criminal Record Checks

Basic Criminal Record Checks

Most members will know that ITC is a registered body that counter-signs applications for Standard and Enhanced DBS checks for our members. There are, however, situations where organisations may want criminal records checks for people who are not eligible for these levels, e.g: where they will be handling money but not in a senior finance role (when a standard check could be made) or dealing with the public including children but not working directly with children (when they would be eligible for an enhanced check).

In these circumstances Basic checks, which provide information about convictions and conditional cautions that are unspent under the Rehabilitation of Offenders Act 1974, may be appropriate. These can be obtained by the individual online. Applicants seeking a Basic Disclosure for personal reasons should apply via the organisation for the country where they live, for a Disclosure for work purposes apply to the organisation in the country where the job is, employers may not always accept a Basic Disclosure check from the wrong service.

England & Wales: Apply via the DBS www.gov.uk/guidance/basic-dbs-checks-guidance
Checks cost £23 and information that will be needed is -
• Applicant’s home addresses for the last five years
• Applicant’s National Insurance number
• Applicant’s passport
• Applicant’s driving license

Scotland: Apply via Disclosure Scotland www.mygov.scot/basic-disclosure/apply-for-basic-disclosure/
Checks cost £25 and information that will be needed is -
• Applicant’s home addresses for the last five years
• Applicant’s National Insurance number
• Applicant’s passport number (passport can be from any country)
• Applicant’s driving licence number, for either a full or provisional licence
• Applicant’s non-UK identity card number (if applicable)

Northern Ireland: Apply via AccessNI www.nidirect.gov.uk/services/apply-online-basic-check
Checks cost £18 and information that will be needed is -
• Applicant’s home addresses for the last five years
• Applicant’s National Insurance number
• Three different types of ID (one must be photographic)

GDPR Compliant Storage of Criminal Record Checks

Seeking access to criminal records information where there is no legitimate purpose in doing so has been unlawful since The Rehabilitation of Offenders Act back in the 1970s. Since then Data Protection legislation, particularly the recent EU General Data Protection Regulation (GDPR) and the Data Protection Act 2018, stresses how carefully this information must be treated. Some basic ground rules are set out below:-

Can you process this data?
Collecting criminal records at application stage is unlikely to be necessary, criminal record checks should only be obtained for job applicants that you intend to appoint not all short-listed candidates. The candidate or employee must have consented to the processing and the job must be one where a check is necessary. Always consider whether you require criminal records information for specific job roles, rather than taking a blanket approach.

How do you process this data?
• Employers are responsible for looking after confidential personal data and ensuring legal responsibilities are met. It's important to consider how this information is stored and retained once it has been obtained.
• Applicants should be informed where criminal records data is to be requested or checked and provided with privacy information. Explaining how you will uphold applicants' rights is a key condition of processing.

• You must not keep personal data for longer than you need it. This will depend on your purposes for holding the data.
• You need a policy setting standard retention periods wherever possible, to comply with documentation requirements.
• You should also periodically review the data you hold, and erase or anonymise it when you no longer need it.
• You must carefully consider any challenges to your retention of data. Individuals have a right to erasure if you no longer need the data.
• You can keep personal data for longer if you are only keeping it for public interest archiving, scientific or historical research, or statistical purposes.
• You cannot keep a comprehensive register of criminal convictions unless you do so in an official capacity.

More information
• Guidance on processing criminal offence data Information Commissioner's Office.
• The DBS provides guidance on the storage, handling, use, retention and disposal of DBS certificates and certificate information.
Unlock, a charity that supports people with convictions who are facing difficulties because of their criminal record has useful guidance for employers.

• Northern Ireland Council for Voluntary Action guidance Recruiting staff: GDPR and criminal convictions.