Does A Binding-Over Appear On A Criminal Record Check For A New Job?

[RSDonovan]

As title, x was bound-over in April, after previously being cautioned for being drunk & disorderly. She is now applying for a new job and is worried that these will show on the criminal record check her new company will carry out. What is the position? Thanks

[Buenchico]

DBS (formerly CRB) checks can only be carried out by employers when the job relates to working with children, working with vulnerable adults, working 'in the administration of justice' or certain other specified types of job. They're not available to the majority of employers.

Convictions and cautions are ALWAYS included on DBS checks for such types of employment unless they are 'protected', as below:

A conviction (such as that which resulted in the binding over order) can only become 'protected' if:
(a) it is the person's ONLY criminal conviction ;
(b) it didn't result in a prison sentence (whether or not suspended) ;
(c) it's not a list of excluded offences (such as sexual offences) ; and
(d) ELEVEN YEARS have passed since the date of conviction.

A caution can become 'protected' after SIX YEARS (with there being no limit to the number of cautions which can become 'protected').

So the conviction which led to the binding over order will appear on the person's DBS checks until April 2027 (assuming that the person has never been convicted of another criminal offence and doesn't acquire a further conviction in the future, in which event it would never become 'protected').

The caution will appear on their DBS checks until 6 years have passed since it was given.

For employment applications where DBS checks aren't relevant (i.e. those not exempted from the provisions of the Rehabilitation of Offenders Act 1974, as amended), a binding over order becomes 'spent' (and thus does not need to be declared) as soon as the relevant period ends. A 'simple caution' becomes 'spent' as soon as it's been given, whereas a 'conditional caution' becomes spent after 3 months. (It should be noted though that no conviction or caution can become 'spent' while the person still has another 'unspent' conviction/caution. They will both remain 'unspent' until the later period ends).

[RSDonovan]

Thanks Buenchico,

The job is Airline Hostess (cabin crew). Are the airline likely to get a DBS?

[EDDIE51]

^^ Yes to that as the job may involve working with children or vulnerable adults.

[New Judge]

I don't think so, Eddie but I'll check in a minute. All manner of jobs may include contact with children or vulnererable adults (serving in a sweet shop, for example) but that is not enough to require a DBS check.

A simple bind-over does not involve a criminal conviction. People are bound over "to keep the peace" and they are often used in minor disputes where the police do not believe a prosecution (or even a caution) is warranted but they want to put something in place to keep the warring factions in check.

[EDDIE51]

^^ I was told I had to have an enhanced disclosure to work as a cleaner in a primary school despite the fact that my job did not start until all the children had gone home!

[New Judge]

I cannot see airline cabin crew on the list of occupations exempt from the Rehabilitation of Offenders' Act, therefore no DBS check is necessary or will be undertaken.

[Buenchico]

^^^ Wrong, Eddie!

The fact that there might be children or vulnerable adults present where someone is working doesn't, in itself, make that type of employment 'regulated activity'. Only the 61 areas of employment listed in the Annex to this document qualify as such:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/519060/Guide_to_eligibility_v8.1.pdf

The only criminal record checks available to employers of people not included in those categories are the 'basic' checks available through Disclosure Scotland (which are available to all employers, with the candidate's consent, throughout the whole of the UK). They only show 'unspent' convictions.

[EDDIE51]

^^ I know Chris, but getting a DBS check seems to be pretty much standard for almost any job now. Employers take a dim view if you question the need for a DBS check .'What have you got to hide?' seems to be the standard response.

[RSDonovan]

Thank you all for your help!

[New Judge]

People working in education establishments are regulated (as far as DBS checks go) courtesy of the “Safeguarding Vulnerable Groups” Act, 2006, Eddie. Schedule 4 of that Act lists the “Regulated Activities” for which a DBS check is necessary. I’ve had a quick glance through the appropriate Schedule and no mention is made of people undertaking caretaking duties in schools.

I don’t know how far you got with your application but, if my reading of the (fairly straightforward) schedule is correct then not only were you misinformed but the DBS people should have refused to undertake a check for such an occupation. Employers cannot request a check “to be on the safe side”. There has to be a specific exception to the RoA Act for a check to be required and carried out.