Background to the Case
In a significant ruling handed down on 12 March 2026, the High Court considered the lawfulness of disclosing non-conviction information on an Enhanced DBS certificate. The case involved a teaching assistant who challenged the inclusion of allegations that had never resulted in prosecution.
The Legal Framework
Section 113B of the Police Act 1997 provides the statutory basis for Enhanced DBS checks. The Chief Officer of the relevant police force must determine whether any information held locally is reasonably believed to be relevant and ought to be included in the certificate.
The Two-Stage Test
The court confirmed that the disclosure decision involves a two-stage test: first, whether the information is reasonably believed to be relevant to the prescribed purpose; and second, whether the Chief Officer considers it ought to be disclosed.
Procedural Safeguards
The ruling emphasised that the applicant must be given an opportunity to make representations before a final decision is made. Failure to provide this opportunity renders the disclosure decision procedurally unfair.
The Court’s Analysis
The court found that the police force had failed to apply the correct legal test and had not given adequate consideration to the applicant’s representations. The decision to disclose was therefore quashed.
What This Means in Practice
This ruling reinforces the importance of following proper procedures when making disclosure decisions. Police forces must ensure they apply the two-stage test correctly and give applicants a genuine opportunity to make representations. For individuals affected by non-conviction disclosures, the case provides a clear route of challenge through judicial review.
Key Takeaways
The two-stage test for disclosure of non-conviction information must be rigorously applied. Procedural fairness requires meaningful consultation with the subject of the disclosure. Failure to follow proper procedures provides grounds for judicial review. The proportionality of disclosure must be assessed against the specific circumstances of each case.
