To help judges and tournament organizers based in the United Kingdom to understand further the legal position around background checks and the law of the United Kingdom, Dr. Matt Johnson and Thomas Ralph have prepared this document based on their research and on publicly available information. Neither of the authors are legal professionals, and the article is not intended to replace legal advice. The authors disclaim any and all responsibility for any actions you or others may take depending on it and strongly recommend you obtain and pay for your own independent legal advice. This document is not an official publication of Magic Judges, Wizards of the Coast, Hasbro, or indeed anyone at all.

Unless otherwise marked, information below is understood to be correct for the whole of the United Kingdom. Where differences apply we mark information applicable to England & Wales with [E&W], to Scotland with [S], and to Northern Ireland with [NI].

For ease of reference we refer to employer/employee relationships to include store/judge, contractor/provider and similar relationships, without any comment on whether judging is an employer/employee relationship.

The WPN has introduced new terms for WPN locations around background checks. The terms say:

You will not employ or otherwise engage Staff or other individuals who interact with the public on your behalf who

They have also provided some clarifications:

In the United Kingdom, criminal records checks are administered by [E&W] the Disclosure & Barring Service (DBS), [S] Disclosure Scotland, and [NI] Access NI. These replaced the Criminal Records Bureau (CRB) in 2012. We call these collectively "the disclosure bodies".

To prevent a person convicted of an offence from having the offence permanently define his/her life indefinitely, the Rehabilitation of Offenders Act 1974 (ROOA) introduced the concepts of a "spent conviction". Where a person has been convicted of an offence, after a certain period the offence is considered "spent" and is, for most intents and purposes, deemed not to have happened. A person asked about their convictions is in most cases legally entitled to treat the question as only relating to unspent convictions. A conviction resulting in a prison sentence of 4 years or more [S: 2.5 years or more] will never be spent. Anything else will be spent after a period of time, which may be up to 10 years plus the length of the sentence. You can see the relevant period for a conviction to become spent at http://hub.unlock.org.uk/knowledgebase/spentposter/ (E&W only).

There are three types of criminal records checks which can be conducted, these are basic, standard, and enhanced.

Basic check

A basic check lists unspent convictions only.

Standard check

A standard check lists spent and unspent convictions.

Enhanced check

An enhanced check lists spent and unspent convictions, as well as any information that might be held by local police which is deemed to be relevant as to whether the applicant is suitable for the role in question. An enhanced check can also be carried out with or without an adults' or children's barred list check, which checks whether the applicant is on a list of people deemed unsuitable to work with vulnerable adults or children, respectively.

Who can get a check?

To prevent potential employers from enquiring into spent convictions and from discriminating against potential employees based on a historic minor criminal record, access to standard and enhanced checks (which show spent convictions) is restricted to employers who have a legitimate entitlement to know about this, which chiefly arises for roles where the employee will have unsupervised and open contact with children or vulnerable adults during their day-to-day job and roles involving a high level of trust and requiring a high standard of personal probity, such as bank staff, lawyers, security guards, taxi drivers, and locksmiths.

The DBS provides an eligibility tool to establish whether a potential applicant for a role can be subjected to a standard or enhanced check. The authors used this checking tool for Magic judges, as follows:

1. What type of role is it? None of these

2. Who is the check for? None of these

3. Is the check for any of the following? None of these

Or:

1. What type of role of it? Caring for or working with childen

2. What does the role with children involve? None of these

In each case, the checker returns the result "Based on your answers you cannot request a DBS check". The actual legislation goes into more detail – the key point here is that the mere fact that children will present at an event, as contrasted to being specifically a location caring for children, does not count as requiring an enhanced check. There are a small number of cases where they may qualify. Those people should already be performing these checks. If you're not sure, the store should contact the DBS to find out.

The DBS does follow up with 'you can ask the applicant to apply for a basic DBS check'. It is legal for stores to ask you to provide a basic check yourself, even though they cannot apply for one themselves. Basic checks must be applied for by the applicant. It is not possible for individuals to acquire anything other than a Basic disclosure.

The implications

The WPN policy requires stores to check whether staff have ever been convicted of a violent sexual offence or a crime against children. A basic check, which excludes spent convictions, will not satisfy this requirement – and in the strict sense, a store cannot obtain a basic check anyway.

Access to the DBS checking service is only available to registered employers who are entitled by law to ask an individual to reveal their full criminal history (other than protected cautions and convictions), including spent convictions - also known as asking ‘an exempted question’. An exempted question applies when the individual will be working in specific occupations, for certain licenses and specified positions. These are covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.

- The Disclosure and Barring Service

Recommendations to stores

The WPN requirements are for the stores to peform checks to the extent for which it is legal for them to do so. We've established above that for the most cases there are no checks which the store is legally able to perform themselves, which should therefore mean that doing nothing is sufficient to meet those checks. WPN is reported to have said that they are fine as long as they have done due diligence. In this case, checking with the DBS yourself that you're not able to do any checks should count as 'due diligence'. It is certainly the case that there are no checks which you can do that count as sufficient per WPN.

Note that Channel Fireball Events are not requiring Grand Prix staff to provide their own Basic Disclosure, which should mean the same is sufficient for other TOs.

If they are unsure about this, stores should take their own legal advice.

It is legal for stores to request Basic checks from their staff and potential judges. Our opinion is that this is not required by the WPN contract. If stores decide to do this then we are hopeful they will undertake to defray the costs of these checks for at least those judges that they frequently use. The WPN regulations also definitely only apply to people that you have actually contracted – judges who help out at your FNMs and prereleases whilst playing, and who are not paid, are unlikely to be covered by this.

Stores are reminded that the DBS code of practice requires them to use the output of DBS checks only in accordance with their recruitment of ex-offenders policy.

Other procedures

We understand that a number of stores have devised their own system of requiring judges to sign to say they've not been convicted of any of these offences, and/or requiring judges to obtain references from people. Stores should be careful about doing their own thing to ensure that no one has any liability if the references turn out to be incorrect, and to avoid finding out about any spent convictions that may be revealed in the process. Acting on spent convictions is against the law, as is disclosing spent convictions without the express consent of the person involved. Those providing any such references should be aware of the liability they may personally incur as a result of such provision, namely (1) the risk that any negative opinion they express may constitute defamation [S: a delict] [NI: libel] if they are unable to later prove its truth; and (2) the risk that any positive opinion they express may give rise to the store taking action against them at a later date if it turns out that the judge they vouched for was in fact a rather horrible person.

Stores which do obtain checks are reminded that under the DBS code of practice they must destroy all certificates after a maximum of 6 months.

Recommendations for judges

We suggest you discuss with stores how the WPN requirements apply. If they still insist on requiring DBS checks, then you have a few options. Firstly, you can try and negotiate them contributing towards paying for it. Otherwise it is up to you whether you want to go through getting a basic disclosure you can share with them. That is a decision which we cannot advise you on, it is up to you whether you want to do that.

If you do get a Basic Disclosure, this is tied to you, not the role you applied for. This should be valid for any TO that you wish to work for – though after a period of time, some TOs may determine the disclosure is too old and you may be required to obtain a new one. We recommend you ask to see the store's recruitment of ex-offenders policy – they're required to have one under the DBS Code of Practice and to share it with current and prospective employees.

Repeating of checks

The WPN and the UK government do not suggest how often a check should be repeated.

Privacy concerns

The applicant needs to supply the disclosure body with 5 years of address history, current and any previous names, and (usually) identity documentation such as a copy of a passport or driving licence plus one or two additional proofs of identity/address. However, a certificate merely contains the applicant's current name, certificate number, and that it was clear (or not). A specific service is available for applicants who for good reason wish their previous names or details be kept confidential, such as applicants who are transgender or in hiding from a violent ex-partner. They can email sensitive@dbs.gsi.gov.uk to discuss this.

The cost

A basic disclosure costs [E&W&S] £25 [NI] £26, payable at the time of submitting the application.

FAQs

Can I use a check that I already have for the purpose of my work? Your employer should have destroyed your check certificate within 6 months of you starting work, in line with DBS code of practice. If they still have it, they can (but, since it belongs to them, are not obliged to) provide it to you and you can provide it to anyone else you choose – the law prohibiting disclosure of DBS certificates does not apply to disclosure with the consent of the subject. This applies whichever level of certificate you have.

We do understand that a number of judges have obtained letters from their employers stating they obtained a DBS check on such and such a date and it was clear, and that a number of stores have declared themselves satisfied with this. I have a transferable standard or enhanced check. Can I use this? No. The DBS Update Service (commonly referred to as "transferable checks") is offered to facilitate people who may do the same job for multiple different employers from time to time. An employer can only consult a DBS check using the update service if they would be legally entitled to carry out a standard or enhanced check anew. (DBS guidance on the update service) As an employer cannot request a standard or enhanced check on a judge for the reasons already given, they cannot use the Update Service. I hear that volunteers can get a free DBS check. Does that apply to judges? No. A volunteer for DBS purposes is defined as "Any person engaged in an activity which involves spending time, unpaid (except for travel and other approved out-of-pocket expenses), doing something which aims to benefit some third party and not a close relative" (Police Act 1997 (Criminal Records) Regulations 2002). Judges are not (usually) unpaid, nor doing something aiming to benefit some third party. Furthermore, volunteer applications must in any event be applied for through an umbrella body which charges admin fees of £10-20 for the nebulous purpose of verifying people's ID and that they're genuine volunteers. I know Magic judge isn't on the approved list of occupations but you can submit a paper application to DBS and tick "other" to obtain a standard/enhanced check We are not aware of this being correct. The DBS needs to abide by the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975 and the Police Act 1997 (Criminal Records) Regulations. It does not provide for an "other" option. Additionally, employers cannot apply to DBS directly if they do not make at least 100 DBS checks a year, but must apply to an umbrella body which processes checks on their behalf. The umbrella body processing the check for the employer will reject any check not related to a role on the list. I live/lived abroad, how can I apply? Sorry, but it's tough enough to pull all this information together for the UK and its three legal systems. We do not currently have the resources or the plans to provide it for people outside the UK. Why am I being referred to Disclosure Scotland when I don't live in Scotland? Until January 2018, Disclosure Scotland used to provide basic disclosures to applicants in all of Great Britain. Applicants in England and Wales should since then use the DBS. Do I need to submit any identity documentation to apply for my basic disclosure? [E&W] Generally no. If you can answer questions about your identity including credit history, and provide your passport and driving licence numbers (if you have these), it will usually be possible to apply without submitting any copies of documents. If you are unable to be verified based on these, the site will prompt you to take your application and the desired documents to a post office which will certify them and submit them for you. A fee will be charged for this.

[S] Yes, you will need to submit scans or photos of various documents, typically one proof of identity such as a passport or driving licence and one proof of address such as a bank statement or utility bill. You upload these as part of your application or you can email, fax, or post them afterwards.

[NI] Yes, you will need to submit scans or photos of three documents from an approved list, either by email or post.

If your question isn't listed here, contact one of the authors (details in the footer) who will make best endeavours to assist and to list it for future.

Further reading

https://www.gov.uk/guidance/dbs-check-requests-guidance-for-employers

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This document has been prepared by Dr. Matt Johnson and Thomas Ralph, level 3 Magic Judges. You are welcome to link to it, but prior permission is required to copy, publish extracts from, or host it elsewhere. Permission can be sought from either of the authors – if you do not have a usual way of contacting us, email magic [at] thomasralph [dot] com.

This document has been prepared based on the research of the authors and on publicly available information. However, neither of the authors are legal professionals, and the article is not intended to replace legal advice. The authors disclaim any and all responsibility for any actions you or others may take depending on it and strongly recommend you obtain and pay for your own independent legal advice.