Section 5.3: Elected Members - Confidential Declarations/DBS checks

Guidance

5.3.1-5.3.2 Confidential Declaration Forms/DBS Checks

DBS Checks 

The Safeguarding & Clergy Discipline Measure 2016 amended the relevant current legislation (i.e. the Churchwardens Measure 2001 and the Church Representation Rules, which form part of the Synodical Government Measure 1969) so that an individual is disqualified from being chosen for the office of churchwarden or “nominated, chosen or elected or from serving as a member of a parochial church council, a district church council or any synod” or from acting as “secretary or treasurer of a parochial church council”, if that individual is found to be on any DBS barred list.  In addition, there are further provisions which disqualify individuals from the aforementioned roles if found to be convicted of an offence contained in Schedule 1 of the Children and Young Persons Act 1933 which can be found here. This particular disqualification can be waived by the bishop. 

Similar provisions apply to members of Cathedral Chapters, as specified in s36-39 of the Cathedrals Measure 2021. 

However, simply being on a PCC does not automatically qualify someone for a DBS check, therefore in the vast majority of cases, it will not be possible to check whether a PCC member or churchwarden is on the DBS barred list.   This is because a Church Body can only carry out an Enhanced DBS with barred list check if: 

• an individual is/will be engaging in “regulated activity” specifically as part of their PCC role, or
• the PCC is a children’s or vulnerable adult’s charity. 

“Regulated activity” is narrowly defined in the Safeguarding Vulnerable Groups Act 2006 (as amended) and generally neither churchwardens nor PCC members will be engaging in such activity.  See Appendix C for further information on Regulated Activity and the definition of children/vulnerable adult charities. 

It is recognised that the current legislation relies on self-disclosure by an individual and is thus limited in its effectiveness at preventing individuals on any barred list from becoming PCC members and/or churchwardens etc.  This is why having a healthy and safe culture is the most effective safeguarding tool, and an over-reliance on DBS checks should be avoided.  

Following election, consideration should be given as to whether the individual, as part of their elected role, will be working with children and/or vulnerable adults, and whether that is regulated activity, or if the PCC is a children’s/vulnerable adults charity. If yes, then the DBS requirements should be followed and such work not undertaken until all appropriate checks have been completed. If the DBS certificate gives a blemished result, then consideration will need to be given to the action that must be taken as a consequence.  This may include whether or not the relevant individual is disqualified (see above). In any event, advice must be sought from the Diocesan Registrar and the Diocesan Safeguarding Officer (DSO) as to what action would be appropriate. All PCC members can be asked to complete a basic DBS check as long as that is clear at the point of standing for election. 

Confidential Declaration Forms

The Rehabilitation of Offenders Act 1974 (ROA) allows certain convictions and cautions to be considered ‘spent’ after a specified period of time.1 The specified period is determined by the sentence or penalty received for the offence. Once a caution or conviction is spent the person is considered rehabilitated and the ROA treats the person as if they had never committed an offence. This means that applicants with criminal records have the right to legally withhold such information when applying for many voluntary roles. If someone’s caution or conviction is spent, it’s unlawful for organisations to consider it when making a decision about their suitability for a role.

However, some roles are made exempt from the ROA by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, commonly known as the ‘ROA Exceptions Order’. Broadly speaking, the ROA Exceptions Order lists those roles and positions that are exempted from the provisions of the ROA.

Applicants for roles that are exempt must be asked to complete and submit the Church of England Confidential Declaration Form (CDF) which gives the individual the opportunity to disclose details of any convictions, cautions, final warnings and reprimands which are not protected i.e. not eligible for being filtered out in accordance with the DBS filtering rules, and will be displayed on an enhanced  DBS certificate. 

The information declared by the applicant on the CDF (as well as any subsequently viewed on the Enhanced DBS certificate later in this process) can be considered when deciding on an individual’s suitability for the role.  The CDF should be held on the person's file if the appointment goes ahead.

A separate privacy notice must be attached to the CDF to detail how a person’s personal data will be processed in this context.  A template privacy notice for the CDF can be found here. 

How? 

Asking persons seeking election to exempt roles to declare their criminal record and other information via the Church of England CDF should be done in a way that encourages honesty and openness. 

All recruitment and selection documentation must include an explanation that the post is exempt from Section 4 (2) of the Rehabilitation of Offenders Act 1974 by virtue of the fact that the post/role is included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and the Police Act 1997 (Criminal Records) Regulations.  The same documentation must also explain exactly what information will be requested from them and at which stage of the process.

It should be made clear that the information will only be used to inform the overall assessment as to a candidate’s suitability for the elected role, where it is relevant. All of this should be stated on the relevant privacy notice. Providing this information from the outset of the process will help prospective applicants decide whether they would like to apply to volunteer or not. 

The Church of England’s Confidential Declaration Form can be completed electronically or by hand.

When? 

There is nothing to prevent church bodies from requesting a CDF at an early stage of the recruitment process, provided there is sufficient justification or legitimate purpose for doing so. If someone is applying for a role in regulated activity or for a role which, although outside regulated activity, is still eligible for an Enhanced DBS check, it is perfectly reasonable. 

For example, you may have a candidate applying for a role in regulated activity but the CDF identifies that they are barred from that activity by the DBS.  If you don’t ask a candidate to complete the CDF until after they are shortlisted for interview, you would not know that they were barred until the interview.   If a person is barred, you must not interview the person for a regulated activity role and it is therefore questionable why such a person should be shortlisted prior to interview. It would be a criminal offence to employ such a person in regulated activity, as well as a criminal offence for them to apply.   By asking candidates to complete the CDF at the same time as their job application form, this situation is avoided.

What?

If the person has declared information on their CDF, this should be assessed in accordance with the church body’s agreed process and, if it does not make them unsuitable.  Appropriate notes recording the discussions with the individual should be kept.  The information provided during the discussion must be referred to the appropriate point of contact within the safeguarding team relevant to the body (e.g. Cathedral or Diocesan Safeguarding Officer (CSO/DSO)) and considered in a reasonable and measured way. 

A record must be kept at this stage as to why, based on the information provided within the CDF and the subsequent discussion with the individual, this information does or does not affect his/her ability to be progressed to the next stage. 

Throughout this process, transparency is key.  Criminal record information is sensitive, special category data and subject to additional protection under data protection legislation.  Ensuring individuals are fully aware of a church body’s policies and procedures is essential. Applicants must be made aware of when and why such information is being requested, what will be done with it, who it may be shared with and for how long it will be retained. Church bodies will need to have a retention policy about storing the information, whether a candidate is successful or not. 

Church bodies should consult their data protection lead if they have any queries in relation to the processing of this personal data or the privacy notice.

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   A sentence of over 4 years is never spent.