What changes to criminal record checks are coming into effect from September 2012?

08 July 2012
What changes to criminal record checks are coming into effect from September 2012?

The Protection of Freedoms Act 2012 marks some important changes to criminal record checking in the UK. Here we survey those changes which take effect for employers in England from September 2012 and highlight future developments beyond.

So what changes take effect from September 2012?

1. The definition of regulated activity becomes narrower
The Safeguarding Vulnerable Groups Act 2006 set out the activities and work which count as ‘regulated activity’, which a person who has been barred must not do. Regulated activity will now only apply to people who work closely and unsupervised with vulnerable groups, including children. This means that the number of people who fall under this definition will be significantly fewer. 

Regulated activity still excludes family arrangements; and personal, non-commercial arrangements. In depth guidance on the definition of regulated activity is available from the Department of Health here (opens as PDF).

What will this mean?
New staff recruited after 10 September 2012, only need to receive enhanced criminal checks that include checks of the appropriate barred lists if they fall within the new definition of regulated activity. However current staff who do not fall within this definition who were recruited before September 2012, may still be able to have the barred lists checked within their CRB checks.

Recruitment and safeguarding policies/guidance may also need to be updated to reflect these changes. Paid and volunteering roles may need to be analysed to see which would now count as regulated activity.  This will need to completed for 10 September 2012.

2. Scrapping of controlled activity
Controlled activity was defined in the Safeguarding Vulnerable Groups Act 2006 to refer to those people who did not work with children or vulnerable adults directly but who may have access to their records, for example. This definition is now being scrapped.

What will this mean?
From 10 September 2012, you will not be able to check whether staff working in controlled activities are on the barred lists as part of a CRB check, though you may be able to still take up CRB checks depending on the nature of the role. 

Also, there is no duty to refer information about individuals working in controlled activities to the Independent Safeguarding Authority. However this duty to refer remains for those working in regulated activity.

3. Minimum age for CRB check

From September 2012, you will not be able to take up CRB checks on someone less than 16 years old.

What will this mean?
From September 2012, CRB checks should not be taken up on staff aged under 16 years old.

What's not changing
Your organisation will still have a duty to make referrals to the Independent Safeguarding Authority if it dismisses someone from regulated activity (or would have done, had they not left first) because they harmed or would pose harm to a vulnerable/young person. It is a criminal offence to fail to do this.

Secondly, an organisation must not knowingly engage a barred person in regulated activity. This is also a criminal offence.

What's coming up from here?
In December 2012, the Criminal Record Bureau and Independent Safeguarding Authority are scheduled to merge into one organisation.

From Spring 2013, the portable criminal record check is anticipated where staff and volunteers will be able to re-use existing CRB checks taken out with other organisations if they agree to sign up to an update service and pay a small fee. This will mean that organisations will be able to check for updates on the individual's previous criminal record check. This will potentially save time in the recruitment of staff and volunteers working with children and vulnerable adults, and avoid unnecessary repeat checks.

Further information
For a full briefing of the changes coming to criminal record checks, see this document from the Home Office. Further information on safeguarding children and vulnerable adults is also available from HRBird.

Post a comment
How will the vulnerable be protected from those under the age of 16 who have committed violent crimes or other concerning criminal activities?
10/08/2012 10.52.40
Any idea what the "small fee" will be ?
ED Volunteer Centre
04/09/2012 12.10.03
Not sure what the fees will be for the portable CRB checks at this stage, though we will update you as soon as we hear.

18kate18's point concerning individuals under 16 years old, who are no longer able to be CRB-checked, is certainly a valid one.

One could argue that under-16s involved in regulated activity are a small minority. However this begs the question on why the exclusion has been introduced if it does not involve a significant number of individuals.
07/10/2012 22.17.40
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