Disclosure and Barring Service (DBS)

4. Mr I complains that DBS failed to issue him with a clear basic DBS certificate, and instead listed a spent conviction on his basic DBS certificate.

5. He told us DBS made the same error on three different certificates, and did not correct its mistake until he issued a Pre-Action Protocol letter via a solicitor, at which point DBS issued the correct, clear DBS certificate.

6. Mr I told us he applied for the DBS certificate as part of a job application, and the incorrect certificate resulted in him losing a job offer for a role he was scheduled to start on 8 January 2024. He was not able to secure another job until 19 February 2024.

7. He told us he then spent another three months dealing with DBS, who he says only arrived at the correct decision after he issued the Pre-Action Protocol letter, which cost him £4,884 in legal fees. He found this stressful and unfair. He told us DBS refused to explain why it changed its decision, which has been frustrating.

8. In 2017 Mr I told us he was convicted of a criminal offence and received a sentence of nine months’ imprisonment suspended for 24 months, together with unpaid work and a victim surcharge. The court also made a restraining order under the Protection from Harassment Act 1997, which was expressed to remain in force “until further order.”

9. He completed the requirements of his sentence in 2019. In 2021 the restraining order was varied by the court to include a specific end date in July 2021, after which it would cease to have effect. From August 2021 Mr I was no longer subject to any restrictions arising from the order.

10. In 2023 the rehabilitation period for Mr I’s sentence ended in accordance with the Rehabilitation of Offenders Act 1974. Mr I considers that, having complied with all aspects of his sentence and with the restraining order no longer in force, his conviction became spent at that point.

11. On 8 December 2023 DBS issued a basic DBS certificate in Mr I’s name. The certificate disclosed the conviction on the basis that the restraining order was recorded on the Police National Computer (PNC) as effective “until further order.”

12. On 18 December 2023 Mr I contacted DBS to challenge the inclusion of the conviction. He said the restraining order had ended in July 2021 and that the conviction should therefore be treated as spent.

13. On 3 January 2024 DBS told Mr I it had referred the matter to the Police for clarification of the PNC record.

14. On 11 January 2024 DBS confirmed its position that, based on the information held on the PNC, the restraining order was shown as varied with an end date but not recorded as discharged or spent. DBS explained that, without confirmation of a formal discharge from the court, it was required to treat the conviction as unspent and disclose it on a basic certificate.

15. During a telephone call the same day, DBS said it could only reconsider the certificate if Mr I provided evidence from the court that the restraining order had been formally discharged.

16. On 15 January 2024 Mr I contacted HM Courts and Tribunal Service (HMCTS) by email to request confirmation that the restraining order had been discharged in July 2021.

17. On 17 January 2024 DBS told Mr I that the conviction would continue to be treated as unspent unless the restraining order was formally discharged by the court and the PNC was updated to reflect this.

18. On 7 February 2024 DBS issued a further basic DBS certificate in Mr I’s name. The certificate again disclosed the conviction and referred to the restraining order, recording that the order had been varied with an end date of 31 July 2021.

19. The same day, Mr I contacted DBS to complain that the certificate was inaccurate. He said that, for the purposes of the Rehabilitation of Offenders Act 1974, the conviction should be regarded as spent and should not appear on a basic certificate.

20. On 13 February 2024 Mr I told us DBS informed him it was seeking guidance from its specialist team. Following that consideration, DBS confirmed its position – that the conviction could not be considered spent - in writing. It maintained that in the absence of a formal discharge recorded on the PNC, it was required to treat the conviction as unspent and to disclose it on a basic certificate.

21. On 22 February 2024, the Police wrote to Mr I confirming it was satisfied the PNC accurately reflected the details of the conviction and the restraining order as “varied” with an end date in 2021. The Police explained it was not responsible for applying the Rehabilitation of Offenders Act 1974 or for deciding whether a conviction should be treated as spent for DBS purposes.

22. The same day, HMCTS emailed Mr I in response to his request for a discharge notice. The court explained that once a restraining order reaches its end date, that is the end of the matter and the court does not issue a separate document stating the order has been “discharged.”

23. The court said the end date on the varied order confirmed the order finished on 31 July 2021 and advised Mr I he could provide the varied order and the court’s email to DBS as confirmation.

24. On 29 February 2024 DBS issued its final Stage 1 complaint response. It enclosed its own undated letter and the letter from the Police. DBS maintained that, without a formal discharge notice recorded on the PNC, it could not remove the restraining order from Mr I’s basic DBS certificate.

25. On 3 March 2024 Mr I asked DBS to commence a Stage 2 review of his complaint. He provided the email from HMCTS in support of his position that the order had ended.

26. On 28 March 2024 the judge in Mr I’s case wrote to Mr I to clarify the terms of the restraining order. The judge confirmed he had not revoked or discharged the order but had amended it so that it remained in force until 31 July 2021. The judge confirmed Mr I had been subject to the order from May 2017 until 31 July 2021 and not since that date. This letter was shared with DBS on 8 April 2024.

27. On 25 April 2024 DBS told Mr I it would not change its decision and that it considered the matter closed.

28. On 17 May 2024 DBS received a Pre-Action Protocol letter for Judicial Review from Mr I’s solicitors. The letter challenged DBS’s decision communicated on 29 February 2024 not to issue a clear basic DBS certificate.

29. The solicitor said the decision was unlawful and/or irrational. In summary, the solicitor argued DBS had misapplied the Rehabilitation of Offenders Act 1974, including by relying on section 5(7)(d) and by requiring evidence of a “discharge notice.”

30. The solicitor also relied on Ministry of Justice guidance and said Mr I had a legitimate expectation that DBS would not disclose his spent conviction on a basic certificate. The letter requested DBS issue a clear basic certificate by 24 May 2024, failing which Mr I intended to issue judicial review proceedings.

31. On 31 May 2024 DBS issued a new basic certificate in Mr I’s name which did not include the conviction, stating this was a pragmatic resolution and not an admission of fault.

32. Correspondence between Mr I and DBS continued for several months after DBS issued the new certificate. Mr I maintained that the decision to issue a clear certificate amounted to an admission of fault and asked DBS to reimburse his legal costs and loss of earnings. DBS continued to explain that the certificate had been issued as a pragmatic resolution and not as an admission of any failing or maladministration.

33. On 3 October 2024 DBS replied that there had been no concession of wrongdoing or maladministration by either its Legal Department or complaints team. DBS said it had nothing further to add, considered the complaint closed, and advised Mr I that, having exhausted the DBS complaints process, his next step was to refer the matter to our organisation.

36. This complaint turns on the difference between what Mr I believes should have happened and what DBS considered it was required to do.

37. Mr I’s position is that, because the restraining order came to an end and the Crown Court confirmed he was no longer subject to it, his conviction ought to have been treated as spent and a clear Basic DBS certificate issued.

38. DBS’s position was that it was required to rely on the Police National Computer record and to apply section 5(7)(d) of the Rehabilitation of Offenders Act 1974, which it understood to mean the later variation introducing an end date could not be taken into account.

39. The question for us is not which interpretation of the law is preferable, but whether DBS acted reasonably and in line with the standards governing its work when it reached that decision.

40. DBS’s functions are set out in the Police Act 1997. Under section 113A of that Act, DBS is required to issue basic DBS certificates that disclose any convictions that are not spent for the purposes of the Rehabilitation of Offenders Act 1974.

41. For the purposes of a basic certificate, DBS does not determine whether a conviction is correct, amend court records or substitute its own assessment for the information recorded by the police and courts. Its duty is to rely on information supplied by the Police National Computer and other official sources and to apply the relevant legislation to that information. Responsibility for the accuracy and wording of the underlying records rests with the police and the courts, not with DBS.

42. The Rehabilitation of Offenders Act 1974 (the Act) allows certain convictions and cautions to become ‘spent’ after a rehabilitation period, meaning they generally do not need to be disclosed for most purposes.

43. It was enacted to support the reintegration of offenders into society by ensuring that minor or old convictions do not permanently hinder employment or other opportunities and to prevent individuals from being unfairly penalised for past offences once they have demonstrated good behaviour over a specified period.

44. Under the Act, a conviction becomes ‘spent’ once the relevant rehabilitation period has expired and the individual has complied with all elements of the sentence imposed. The rehabilitation period depends on the type of sentence and, where a court has imposed an additional order such as a restraining order, may be linked to when that order ceases to have effect. However, the Act also sets out how that period is to be calculated in law, which can affect how such orders are treated for disclosure purposes.

45. We recognise why Mr I considers that his conviction ought to have been treated as spent. The purpose of the Act is to enable individuals to move on from past offending once they have met the requirements of the sentence and lived lawfully for the prescribed period. To be clear, there is no dispute in this case that the restraining order came to an end in July 2021 and that Mr I was no longer subject to it after that date.

46. We understand his view that continuing disclosure of the conviction appeared inconsistent with the spirit of the legislation and with the information he received from the Crown Court about the end date of the restraining order.

47. Section 5 of the Act sets out how rehabilitation periods are calculated where a sentence includes an additional order, such as a restraining order. Section 5(7)(d) states that, when calculating the rehabilitation period, no account is to be taken of any subsequent variation of the day originally provided for by or under an order as the last day on which the order is to have effect. Along with the provisions of the Police Act 1997, this is the legislation DBS relied upon in this case.

48. We have seen evidence that DBS explained its position to Mr I on a number of occasions, including setting out why it considered section 5(7)(d) applied and why it was required to rely on the PNC record. This included explaining how it had interpreted the court’s amendment and why it treated this as a variation rather than a discharge.

49. While Mr I strongly disagreed with that interpretation, the explanations provided were consistent and reflected DBS’s understanding of the legislative framework it was required to follow, including that it could not depart from that framework to apply an alternative interpretation.

50. It is not our role to determine the correct legal interpretation in this complaint. Our task is to consider whether DBS acted in line with the legislation, policies and processes that govern its work, and whether its actions were reasonable in that context.

51. In his comments on our provisional views, Mr I raised a number of specific concerns. In summary, he said: (i) we had not considered section 5(2A)–(2B) of the Rehabilitation of Offenders Act 1974; (ii) DBS’s reliance on official records was inconsistent with evidence confirming the restraining order had ended; (iii) DBS’s later decision to issue a clear certificate indicated it had discretion and that its earlier decision may not have been required; (iv) the withdrawal of his job offer was caused by the DBS certificate; (v) DBS’s approach was inconsistent when compared with other cases; and (vi) DBS misinterpreted the sentencing judge’s letter. We have considered each of these points below.

52. In respect of our consideration of 5(2A)-(2B) of the Rehabilitation of Offenders Act 1974, as we have said, it is not part of our role determine whether legislation has been interpreted and/or applied correctly. Only a court can do that. Instead, our role is to determine whether, from an administrative standpoint, an organisation has acted reasonably. When considering the application or interpretation of legislation, this restricts us to looking simply at whether an organisation arrived at its interpretation in a reasonable manner, not at whether the interpretation itself is correct.

53. Section 5(2A)—5(2B) says:

(2A) Subsection (2B) applies where provision is made by or under a relevant order for the order to have effect— (a) until further order,(b) until the occurrence of a specified event, or(c) otherwise for an indefinite period.

(2B) The rehabilitation period for the order is the period— (a) beginning with the date of the conviction in respect of which the order is imposed, and(b) ending when the order ceases to have effect.

54. Mr I considers these provisions apply because the restraining order was made “until further order” and later ceased to have effect. He says this means the rehabilitation period ended when the order came to an end in July 2021, and that section 5(7)(d), which DBS relied on, does not apply to his sentence.

55. He says that because the restraining order was originally made “until further order” and did not include a defined end date, the later introduction of an end date cannot properly be treated as a variation of “the last day” for the purposes of section 5(7)(d). He therefore considers that provision should not be applied in his case, and that section 5(2A)–(2B) should instead determine when the rehabilitation period ended.

56. Whilst we can understand Mr I’s view, we cannot comment further on it. We recognise that Mr I and DBS have differing views on the way this legislation should be interpreted or applied but, for the reasons set out earlier, only a court can determine which view is correct. If Mr I wishes to pursue this matter further, he may wish to seek independent legal advice on how best he may do this through the court system. This is not something we can help him with.

57. We have considered Mr I’s comment that DBS’s reliance on official records was inconsistent because those records confirm the restraining order had ended, we recognise that the available evidence, including the PNC and the judge’s letter, confirms that the order was varied to include an end date and ceased to have effect in July 2021. However, DBS’s view, which it explained to Mr I, was that this does not determine whether the conviction is treated as spent for the purposes of a basic DBS certificate.

58. In our view, the dispute here between Mr I and DBS turns on the correct interpretation of the Rehabilitation of Offenders Act 1974. This is a matter for a court to determine and, for the reasons stated elsewhere, it would not be appropriate for us to express our own view on this issue.

59. It is, however, important to note that DBS is not applying the Rehabilitation of Offenders Act 1974 in isolation. Its functions are set out in the Police Act 1997, and it must apply the provisions of the Rehabilitation of Offenders Act 1974 within that statutory framework.

60. Under the Police Act 1997, DBS is required to issue basic certificates which disclose any convictions that are not spent. In doing so, it must apply the definitions set out in the Rehabilitation of Offenders Act 1974 to the information recorded on the Police National Computer. This involves interpreting and applying the legislation in the context of the information available to it.

61. Whilst, for the reasons stated, we cannot comment on the correctness, or otherwise, of DBS’s interpretation of the legislation, this demonstrates to us that DBS’s position was based on wider consideration of evidence than simply a single piece of legislation. Under our Principles of Good Administration – Getting it right, we expect decision making to take account of all relevant considerations and balance the evidence appropriately. In an administrative context, we are satisfied the DBS acted in line with our expectations in this instance.

62. Under the same Principles, we expect organisations to have regard to relevant legislation. In this case, we have seen evidence that the DBS identified and considered the the Rehabilitation of Offenders Act 1974 and explained why it applied section 5(7)(d) to the information recorded on the Police National Computer. While Mr I disagrees with that interpretation and relies on section 5(2A)–(2B), we have not found evidence that DBS failed to have regard to the legislation or acted in a way that was outside the range of reasonable approaches open to it. As a result, we are satisfied that DBS had sufficient and reasonable regard to the relevant legislation, even though we recognise Mr I’s disagreement DBS’s interpretation of that legislation.

63. We have also seen evidence in its email of 23 April 2024 that DBS considered the nature of the court’s amendment and treated it as a variation rather than a discharge and explained how this informed its reliance on section 5(7)(d).

64. We also considered Mr I’s comment that DBS misinterpreted the sentencing judge’s letter regarding his sentence. We have considered the contents of that letter and the way DBS took it into account. We recognise that the judge confirmed the restraining order applied until 31 July 2021 and no longer had effect after that date. However, DBS did not disregard that information; it considered the nature of the amendment and interpreted it, in the context of the Act and the information recorded on the Police National Computer, as a variation rather than a discharge.

65. We neither accept nor reject DBS’s interpretation as a matter of law. Our role is to assess whether the approach it took was one it could reasonably adopt in the circumstances. On the evidence we have seen, we are satisfied that it was. As we have said elsewhere, If Mr I disagrees with the DBS’s interpretation, and wishes to challenge it, he may wish to seek independent legal advice on how best to do this. We cannot help him with this.

66. Having said this, in its comments to us, DBS said it is aware of difficulties arising in cases involving variation orders and the application of section 5 of the Rehabilitation of Offenders Act 1974. It acknowledged that these provisions can be difficult to apply in practice and that it has raised this with the Ministry of Justice, which is responsible for the legislation.

67. This serves as further evidence that DBS has considered the relevant legislative framework and is applying an established approach to cases of this nature. It also provides context for its later decision to issue a clear certificate in this case as a pragmatic, customer-focused step, rather than a departure based on an error in its earlier approach. Overall, this supports our view that the difficulty in this case arises from the legislative framework rather than a failing in DBS’s handling of Mr I’s application.

68. We have considered Mr I’s point that DBS’s later decision to issue a clear certificate indicates it had discretion and that its earlier decision may not have been required. We have considered whether that later decision demonstrates that DBS could or should have reached a different outcome at the earlier stage.

69. On 31 May 2024 DBS issued a new Basic DBS certificate that did not include details of the conviction. DBS explained that this was a pragmatic step taken to resolve the situation and was not an admission that its earlier decisions were incorrect. In correspondence dated 23 July 2024, DBS stated explicitly that the decision to issue a clear certificate did not reflect any error in its previous handling of the application.

70. We have considered whether the decision to issue a clear certificate indicates that DBS had the power to reach that outcome from the outset. Public bodies are sometimes able to take discretionary steps to resolve individual cases. The use of such discretion does not mean the organisation had a duty to reach the same outcome earlier.

71. We also understand why Mr I interpreted this change as an admission that DBS had been wrong all along. The decision to issue a clear certificate followed receipt of a Pre-Action Protocol letter and the involvement of DBS’s legal team, and we can see why he inferred that this reflected a reassessment of the earlier position.

72. However, the fact that an organisation resolves a dispute after the threat of legal action does not necessarily mean its original decision was incorrect. Public bodies may decide to take a pragmatic course to avoid further delay, cost, or uncertainty, even where they maintain that their previous approach was the correct one at the time.

73. In response to Mr I’s point that DBS’s approach appears inconsistent when compared with other cases, including one he has described involving his brother, we note his concern that this calls into question DBS’s position that it was required to maintain its approach because of the legislative framework.

74. Our role is to assess DBS’s actions against that legislative framework and the evidence in this case. We have not investigated those other cases and do not have sufficient information about their facts or the basis on which decisions were made, and we cannot therefore draw conclusions about consistency across cases from this information.

75. In any event, a different outcome in another case, or a decision being reconsidered when challenged, does not in itself demonstrate that DBS had a duty to reach a different outcome in this case. Our assessment is based on whether DBS applied the relevant legislation in a way it could reasonably adopt in the circumstances before it.

76. In response to Mr I’s point that the withdrawal of his job offer was caused by the DBS certificate, we have considered whether those losses can properly be attributed to maladministration by DBS.

77. As set out above, our view is that DBS acted in line with the legislation governing its work. Where an organisation has acted in accordance with its duties, the Ombudsman cannot recommend compensation for the consequences of that decision, even where we acknowledge those consequences were significant for the individual concerned.

78. Mr I has said DBS never explained why it changed its position. We have seen evidence that DBS did provide an explanation, that the decision to issue a clear certificate was a pragmatic step taken to resolve the matter, but did not reflect any admission of fault.

79. We recognise Mr I does not consider that explanation satisfactory or convincing. However, the evidence shows DBS did set out its reasons for both its initial approach and its later decision.

80. While this differed from its earlier position, we have seen evidence that DBS recorded and explained the reason for that departure, which is what we would expect under our Principles, which recognise that, in some cases, a novel or pragmatic approach may achieve a better outcome, provided the organisation records why it has taken that course. It is our view that DBS’s later decision to issue a clear certificate was such a pragmatic resolution following legal correspondence.

81. We appreciate that Mr I found himself in an exceptionally difficult situation for which there was no straightforward solution. The interaction between the Rehabilitation of Offenders Act 1974, the Protection from Harassment Act 1997 and the Police Act 1997 created a position where the end of the restraining order did not translate neatly into the rules governing disclosure on a basic DBS certificate.

82. In our view DBS ultimately took pragmatic steps to mitigate the impact on Mr I, steps it was not required to take under the legislation. While we recognise how frustrating and unfair the outcome has felt for him, we cannot attribute the underlying problem to maladministration by DBS. On the information available to us, this does not indicate earlier maladministration but rather a discretionary decision taken at a later stage.

83. Rather, the difficulty appears to arise from the way the current legislative framework fits together and how those interactions are interpreted. As set out above, questions about whether that framework achieves the right balance are matters of public policy that fall outside the Ombudsman’s powers.

84. We recognise that there is a genuine disagreement about how the legislation should be interpreted in this case. Questions about the correct legal interpretation of legislation are ultimately matters for the courts. Our role is not to determine that issue, but to consider whether DBS applied the legislative framework in a way it could reasonably adopt.

85. For these reasons, and based on the evidence we have seen, we do not uphold this complaint.

86. We realise this is not the outcome Mr I was looking for, or expecting, when he approached our office. We hope we have explained clearly the reasons for our decisions and would thank him for bringing his concerns to our attention.

1. We were sorry to hear about the situation Mr I has experienced. We recognise this is an unusual and difficult set of circumstances, and we strongly sympathise with the position he found himself in and the impact this has had on him.

2. We have carefully considered all the evidence and whether the Disclosure and Barring Service (DBS) failed to act in line with the guidance and standards that inform its work.

3. Although we recognise Mr I does not share this view, we have seen no evidence of maladministration in DBS’s approach and we have decided to not uphold this complaint.