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For people with criminal records
For people with criminal records

Archives: Case Studies

Misleading question on an application form to join a professional body

We were recently contacted by an individual who had some concerns about the question relating to criminal convictions on the application form to join a professional body. The question asked:

‘I have been convicted of a criminal offence       Yes / No’

The organisation stated that they would be carrying out a standard Disclosure and Barring Service (DBS) check, however we didn’t believe that the question they were asking made it clear that applicants did not need to disclose ‘protected’ cautions or convictions.

We contacted the professional body to raise our concerns about the misleading question and explained that due to the way the question was worded, applicants could disclose more information than the professional body was legally entitled to know about.

As we received no response from the professional body we forwarded the matter to the Information Commissioners Office (ICO) as we felt that potentially, the professional body could be in breach of the Data Protection Act by processing and storing data unlawfully.

Several weeks later, we were contacted by the professional body who apologised for not responding to us. They informed us that they had amended their application form. It stated:

‘I have been convicted of a criminal offence       Yes / No

 

Please note that you do not need to disclose protected convictions that are filtered from a standard or enhanced Disclosure and Barring Service (DBS) check.’

We felt that the question was probably as clear and concise as it could be.

Lessons

This case demonstrates how professional bodies often believe that the questions they are asking are very clear when in fact, due to changes in legislation, they can be quite misleading. This may result in applicants over disclosing and the professional body potentially breaching the Data Protection Act.

Links

Notes about this case study

This case study relates to our work with other organisations.

Names and details have been changed to protect the identity of those involved.

 

Kelly – Having an insurance policy cancelled due to a comparison company not providing full disclosure

Kelly contacted our helpline after she’d had her insurance policy cancelled due to the non-disclosure of her partner’s criminal record.

Kelly explained that she’d used a comparison website to get insurance quotes for a new van that she’d recently purchased. After disclosing her partner’s unspent conviction, she had been surprised to find that the prices quoted had been no way near as expensive as she’d imagined them to be. Although she’d never heard of the company offering the most competitive price, further research revealed that they were specialists in providing insurance to people with convictions. Kelly went ahead with the purchase and paid the first instalment.

A couple of days later she received a letter from the company stating that they were aware of her partner’s unspent conviction and were cancelling her policy due to this not having been disclosed to them. Kelly immediately contacted them to dispute this, stating that she had proof of disclosure, but the company were adamant that she had not disclosed and that when purchasing any future policy, she’d need to declare that she’d had a policy cancelled.

Frustrated that the insurance company would not help and concerned that she’d never be able to insure her van, Kelly spoke to one of our advisors.

It quickly became apparent that the insurer concerned was one of those on Unlock’s list of brokers and so it was important that we establish what had gone wrong in Kelly’s case.

Kelly provided us with copies of the screenshots she’d taken from the original comparison site which clearly set out the details of her partner’s conviction. We sent this to the insurer and asked them to look again at her case.

Several days later we were contacted by the insurer who confirmed that they had fully investigated the matter and found that despite Kelly disclosing the conviction to the comparison site, some coding on the comparison site had been set to ignore some of the data which was passed to insurers.

The insurer apologised for any problem that this had caused Kelly and were happy to amend their records to reflect that the policy hadn’t been cancelled due to non-disclosure. They also offered Kelly a small amount of compensation.

Kelly said:

“Without the help of Unlock I’d never have got the result I got. I’m going to steer clear of comparison sites in the future and go direct to an insurer. Something I thought would save me time has just caused me a lot of anxiety and frustration”.

 

Lessons

We’d always recommend individuals go directly to an insurer rather than a comparison website and always make sure you keep copies of what you’ve disclosed to the company. Comparison sites earn their money based on the number of quotes they can generate over their rivals and, as happened in Kelly’s case, can sometimes fail to pass on key bits of information which, in all likelihood, would limit the number of insurers that would be able to provide a quote.

Links

Notes about this case study

This case study relates to Unlock’s casework.

Names and details have been changed to protect the identity of those involved.

Andy – Having an application for social housing refused on the basis of spent convictions

Andy contacted our helpline after his application for social housing was declined on the basis of his ‘previous criminal convictions‘.

Andy explained that he had three previous convictions but these were all spent under the Rehabilitation of Offenders Act at the time he’d made his housing application. As he’d applied for supported housing, the housing provider had asked his social worker for a report to support his application. Having known Andy for years, she believed it was necessary to disclose his convictions as they ‘formed part of his file‘.

Andy had been told that he had the right to appeal the decision.

In support of Andy’s appeal, we wrote to the housing provider to explain that as his convictions were spent under the ROA, legally they should be disregarded by the allocations team. We provided them with details of a case which had been held at the High Court in 2016 where Hammersmith and Fulham Borough Council were found to have acted unlawfully by basing its decision not to add an individual to its housing register on the basis that the claimant had a spent conviction. The High Court found that the Council’s decision amounted to a breach of Section 4(1) of the ROA.

At the appeal hearing, the panel reconsidered Andy’s application and revoked its original decision. Andy was told that he would be able to move into one of the units as soon as one became available.

Andy stated:

“I’m obviously delighted with the decision. However, it may be a couple of years before a unit becomes available whereas, if my case had been dealt with properly at the time, I would now be living in one of these units and benefiting from supported housing”. 

 

Lessons

Once information is disclosed to them, councils and housing providers may believe it necessary to take it into consideration when making a housing decision. However as recent High Court cases and the governments updated homelessness code of practice has made clear, spent convictions should be ignored.

Links

Notes about this case study

This case study relates to Unlock’s casework.

Names and details have been changed to protect the identity of those involved.

Case of Adam – A criminal record preventing the award of a PhD

Adam had been studying for a PhD; he’d completed his oral examination (subject to some minor corrections) and a submission date for the completed thesis had been set.

During the course of his study Adam was arrested and charged with three offences. His trial started before the submission date of his thesis and the anxiety and stress arising from this meant that he was unable to submit his thesis at the appropriate time. Adam was later convicted and sent to prison.

During his time in prison, Adam set about completing the corrections to his thesis and updating it to reflect changes to legislation.

Given the amount of time that had passed, it was necessary for Adam to reapply to the university for readmission. At this time, he had to disclose his criminal convictions and, as a result of this disclosure he was told that his application needed to go before the Student Conduct Council who would consider the relevance of his criminal record.

Adam was prepared for some reluctance on the part of the university and felt that they may wish to put conditions upon him. However, when it arrived, the university’s decision was as follows:

“To expel him from the university with immediate effect meaning that he would no longer be eligible to be registered for a programme of study, or to be awarded a degree or to reside in university accommodation”

The decision seemed particularly harsh and permanent. Although his convictions would become spent at some point in the future, Adam felt that the university were not just punishing him for his past mistakes, but fixing this punishment for life.

Adam decided to appeal the university’s decision and sent a letter to the Student Conduct Panel. This highlighted the value of education and the very unlikely publicity which would result from awarding the PhD.

In their written reply, the Student Conduct Committee said:

“Having considered all of the additional evidence presented to this Committee of Appeal that the original Committee were not able to consider, this Committee has not been able to find any additional evidence of mitigating factors that would allow the Committee, within its limited powers, to reduce the penalty. The Committee recognises the positive steps that you have taken with your rehabilitation and the trust that you have earned since the start of your custodial sentence, however, this provided no further evidence in terms of mitigating factors for consideration in relation to an appropriate penalty to reflect your actions that led to the conviction, which in turn led to the breach of regulation. It is very unfortunate that there has been an additional consequence of this penalty for you but the Committee can see no evidence that the University should change its view that your actions and the level of criminal activity undertaken were sufficiently serious to terminate your membership of the University, whatever the consequences may be of that decision. The Committee takes the view that the penalty of expulsion from the University remains an appropriate penalty.”

Adam had studied for five years for his PhD prior to going into prison and had completed the majority of his study and the award of his PhD was, in this instance, more of a bureaucratic process.

Commenting on Adam’s experience, Christopher Stacey, co-director of Unlock, said:

“This is a shocking example of where a university believes it’s appropriate to apply a “penalty” of this kind. Adam had worked hard for 5 years towards a PhD and the university didn’t need to make the decision it has. It underlines the need for universities to change the way they deal with criminal records of students.”

 

Notes about this case

  1. This case relates to Unlock’s policy work on promoting fair admission policies and practices by universities and colleges.
  2. We have practical guidance on applying to university.
  3. Names and details have been changed to protect the identity of those involved.
  4. Other policy cases are listed here.

Case of Isabel – Refused permission to study at University with no right of appeal

At the time of applying to study for a nursing degree, Isabel didn’t have a criminal record. However, several months later she was charged with a driving offence and was due to appear in court two months later. During her admissions interview with the university, she explained that she had a court case pending and was asked by the university to inform them immediately she knew the outcome of the case. They provided her with a copy of their admissions policy which stated:

“Certain courses within the university, including the commissioned courses with HLS and a number of courses within the faculties of Engineering and Computing and Art and Design require a DBS check to be carried out and a decision to be made based on the criminal record as to suitability to be on the course. If an applicant is deemed to be unsuitable the university may reject their offer and this decision is final.”

In court, Isabel was given a fine and banned from driving for seven months. She immediately contacted the university to update them and was told that her case would need to go to a Faculty Review Panel for a decision.

The Panel considered Isabel’s case and decided that as a result of her conviction, they were unable to offer her a place on the nursing course. Isabel contacted a solicitor to assist her in appealing the university’s decision.

In her letter to the university, Isabel’s solicitor set out how the offence was not relevant to the course and that as a result of the time it had taken the university to make a decision, Isabel had missed the opportunity to study at another university. In response the university stated:

“We note that your client is now seeking to appeal the decision of the Panel. However, as set out in the University Admissions Policy and Personal Statement Form, it is for the Panel to make a decision about a student’s suitability to enrol onto a course which leads to a professional qualification. The Panel’s decision is final and there is no right of appeal.”

They confirmed that when considering Isabel’s suitability, the Panel felt that as she would be entering a profession where she would be working with distressed adults and children, it was important that she was able to demonstrate a level of reflection about the affect her actions had on the victim of her crime. The Panel did not believe that Isabel had adequately shown this.

Commenting on Isabel’s experience, Christopher Stacey, co-director of Unlock, said:

“It’s staggering to see a university act as judge and jury by revoking an offer and not give Isabel any opportunity for a right of appeal. This is clearly a university-wide policy and we have raised our concerns with them about the lack of an independent appeal mechanism. This is something that we’ll be raising in our work with the Department of Education, UCAS and others in promoting fair admissions policies.”

 

Notes about this case

  1. This case relates to Unlock’s policy work on promoting fair admission policies and practices by universities and colleges.
  2. We have practical guidance on applying to university.
  3. Names and details have been changed to protect the identity of those involved.
  4. Other policy cases are listed here.

Sally – Choosing to disclose my conviction at the earliest opportunity meant that I was well prepared and ultimately got me a job as a prison officer

Sally contacted our helpline for some advice on applying for a job as a prison officer. She explained that she had passed the online Prison Officer Selection Test and had attended an assessment day which she had completed successfully. The assessment day had reinforced her determination to work as a prison officer but she was now concerned that her drink driving conviction from a couple of years ago would stop her from fulfilling her dream.

Sally had completed the paperwork for her Enhanced Level 2 security clearance and was in the process of filling out the Disclosure and Barring Service application form as she needed an enhanced check for her role within the prison. Sally wanted some advice on when and how she should explain her conviction to the prison service as well as finding out whether her conviction was likely to affect her chances of becoming a prison officer.

We explained to Sally that her offence was not one which would automatically bar her from working in a prison and therefore her key to success would be in how well she explained the conviction.

As her application appeared to be progressing well, we suggested that she disclose her conviction. Some of the points to cover would be:

  • The nature of the offence and the circumstances surrounding it
  • What you have done to address your offending behaviour, for example any courses completed
  • Ways in which your life is different now
  • Why you don’t believe that you are a risk to an employer.

Sally contacted us a couple of months later to advise us that immediately after speaking to us she had contacted the prison vetting team and disclosed her conviction. Although they couldn’t give her any indication as to whether her application would be successful, Sally stated that she felt a lot better by disclosing and ultimately, her application was successful.

Sally said:

“I’m so grateful to Unlock for the advice they gave me. I knew that my drink driving conviction would come up but I was tempted to wait and see what would happen after my security checks and DBS were done. I’m sure that by speaking to the vetting team and explaining what happened they were able to see that although this conviction resulted from a clear lack of judgement, it was something that I’d never do again”

 

Lessons

This case demonstrates the benefits of disclosing a conviction at the earliest opportunity after being asked. Planning when to disclose gave Sally the time to consider what she was going to say and how she would address any questions asked by her employers. It meant that she was able to present herself as being upfront, honest and somebody who took responsibility for their mistakes.

Links

Notes about this case study

This case study relates to Unlock’s helpline.

Names and details have been changed to protect the identity of those involved.

 

Kelvin – Contacting Unlock gave me the confidence to represent myself and appeal my SOPO in court

Kelvin contacted our helpline as he wanted some information about the cost of applying to have his Sexual Offences Prevention Order (SOPO) discharged, as well as details of any solicitors that could help him do this. Kelvin explained that although he was really keen to do this, as it was seriously affecting his chances of getting a job, he had very limited funds available.

We explained to Kelvin that the amendment of a SOPO is dealt with by the court as a civil rather than a criminal case and therefore representing yourself in court is possible and much cheaper than employing the services of a solicitor. In some cases, solicitors can deal with the discharge of SOPO’s using the same legal aid certificate which related to the original court hearing and we suggested that Kelvin check with his solicitor whether this was possible.

We confirmed that Kelvin would stand more chance of a successful outcome if he were to get the support of his supervising police officer. Also, in any application to the court we advised Kelvin to:

  • Provide any evidence to show what he’d done to address his offending behaviour
  • Explain the positive changes he’d made since his SOPO was given – for example moving to a new area, improving relationships with friends/family
  • Demonstrate how he’d fully cooperated with the terms of the SOPO and the Sex Offenders Register.

When we contacted Kelvin several weeks later he confirmed that he’d taken our advice and represented himself at court. His Police Public Protection Officer had fully supported his application and at the court hearing, the judge agreed to discharge the SOPO with immediate effect.

Kelvin said:

“I didn’t realise that appealing my SOPO was something I was able to do myself. With the advice provided by Unlock and the information they have online, it was a relatively simple process and much cheaper than employing a solicitor to do it on my behalf. The employment world has really opened up for me since my SOPO was discharged as I no longer have to disclose my conviction for the types of jobs I’m applying for”

 

Lessons

This case demonstrates how it’s not always necessary to employ the services of a solicitor to discharge or vary a relevant order. The support of the police and evidence showing that he was no longer a risk, meant that Kelvin’s conviction immediately became spent meaning that for the majority of jobs he no longer needed to disclose it.

Links

Notes about this case study

This case study relates to Unlock’s helpline.

Names and details have been changed to protect the identity of those involved.

 

Darpak – Confusing information on the internet make me question whether I’d be able to become a trustee

Darpak contacted our helpline very concerned about the impact of a motoring offence on his future employment and also his ability to become a trustee of a local charity group attended by his daughter.

Darpak explained that although he currently held a senior management position which had not been affected by his conviction, he was in the process of moving jobs and it was likely that any new role would involve some overseas travel.

Also, he had been invited to become a trustee of a local club attended by his daughter and was worried that his conviction would prevent him from doing so. Darpak explained that he would rather withdraw his application to the club rather than go through the embarrassment of being rejected.

We explained to Darpak that as his conviction would not be spent until 2019, he would need to disclose it to any future employer if he was asked. However, as this was his one and only conviction for a relatively minor offence and he had a lot of knowledge and experience, we would hope that his criminal record would not cause him too many problems. We advised that a far as travel is concerned, his ability to travel would depend on the country that he was travelling to and the length of time that he would be visiting for.

As far as becoming a trustee, we confirmed to Darpak that as his conviction did not relate to an offence relating to dishonesty or deception then he would not be disqualified from being a trustee. We gave Darpak some further advice around the disclosure of his conviction to the charity’s board of trustees.

Darpak contacted us some weeks later to confirm that although he’d not changed his job he’d been successful with his application as a trustee.

Darpak said:

“Although I knew that my conviction was for a relatively minor offence, I was so ashamed about it which then caused me a lot of stress and anxiety. The guy I spoke to at Unlock made me realise that I wasn’t the only one with a criminal record and that a motoring conviction wasn’t the end of the world. The information I’d read online about becoming a trustee made me think that I wouldn’t be able to do it and it was great to get some clear, concise advice”

 

Lessons

This case demonstrates that irrespective of the nature or seriousness of your offence any type of conviction can cause stress and anxiety. There is a lot of conflicting information online about who may be disqualified from being a trustee and it was good to be able to confirm to Darpak that he would be able to become involved in his daughter’s club.

Links

Notes about this case study

This case study relates to Unlock’s helpline.

Names and details have been changed to protect the identity of those involved.

 

Derek – Becoming a local councillor and anomalies between the Electoral Commission guidance and the Rehabilitation of Offenders Act 1974

A few years ago Derek contacted our helpline for some advice around standing for election as a local councillor.

Despite the role of a local councillor being covered by the Rehabilitation of Offenders Act, the Electoral Commission guidance stated that any individual who had received a prison sentence of 3 months or more (including a suspended sentence) in the previous five years was unable to stand to become a local councillor. Derek explained that he’d served a short prison sentence of just over 3 months and this meant that he would be disqualified for standing as a councillor despite his conviction being spent three years earlier than that 5-year rule.

Following amendments to the ROA in March 2014, the time it takes for a conviction to become spent had been reduced significantly and we felt that these changes should be reflected in the Electoral Commission guidance.

We wrote to the Electoral Commission seeking clarification on the following points:

  1. Whether changes to the ROA were applicable to local councillors meaning that individuals would be eligible to stand for election once their conviction was spent?
  2. Confirmation of the timescales and criteria set out in the Commission’s guidance around eligibility.

The Electoral Commission said that we’d raised some complex issues, which had to be referred to the Department for Communities and Local Government, the government department responsible for the legislation regarding local councillors.

Over the next couple of years we continued to correspond with the Electoral Commission and the Department for Communities and Local Government and in October 2017 the Department for Communities and Local Government contacted us to say:

 

“The current disqualification criteria were established over 40 years ago and Ministers want to update them to reflect the new options that exist to protect the public and address unlawful and unacceptable behaviour by elected members. Government is proposing to update the disqualification criteria to capture anyone who is subject to the notification requirements set out in the Sexual Offences Act 2003 (commonly referred to as ‘being on the sex offenders register’) or who is subject to certain anti-social behaviour sanctions.

 

You may wish to note the proposals do not apply retrospectively. Having announced the consultation, the Government has no current plans to make any further policy announcements on this policy area but may do so at the point any legislation is enacted.”

 

We are disappointed with the response as it appears to be making the disqualification criteria more onerous, rather than bringing it in line with the ROA.

We await to see what legislation the Government enact regarding becoming a local councillor.

 

Links

Notes about this case study

This case study relates to Unlock’s casework.

Names and details have been changed to protect the identity of those involved.

Danny – Failings in the DBS eligibility investigation process meant that my employers became aware of my spent conviction and terminated my contract

Danny contacted our helpline for some advice after his employer, a company selling disability aids, had requested an enhanced Disclosure and Barring Service (DBS) check for his role as a driver/technician, stating that he would be required to instruct and train ‘vulnerable’ adults in the use of some of the equipment he was delivering.

In the couple of weeks that he had been doing the job, Danny had only delivered pillows, walking sticks and wheelchairs and had never given instruction or training to any of his customers. He felt that his job would probably only require a basic (DBS) check and wanted to know how he could challenge his company. As his conviction was spent under the Rehabilitation of Offenders Act and wouldn’t appear on a basic (DBS) check Danny was keen that his employer carry out the correct level of check.

We advised him to agree to the enhanced check and then immediately raise it by email as an ineligibility query with the DBS.

Danny followed our advice and at the same time also informed the DBS that the company were carrying out checks on a further three employees who were all doing the same job as himself.

Several days later, Danny was contacted by the DBS who confirmed that they had put his application on hold whilst they investigated the eligibility of the check although they were unable to consider the eligibility for the other three employees. During the conversation the DBS stated that Danny’s employer had given his job title as an Outreach Support Worker which he queried. He was told that the DBS were unable to question job titles with employers or Registered Bodies.

Despite providing the DBS with copies of Danny’s job description, contract of employment and a breakdown of his deliveries, the DBS contacted him several weeks later to confirm that following investigation they believed that his role would be eligible for an enhanced DBS check.

Danny decided that the only option open to him would be to arrange to speak to his employer about his conviction and hand over the enhanced DBS certificate to them.

Danny contacted us several days later to let us know that he’d had a meeting with the company’s General Manager who immediately terminated his contract.

 

 

Lessons

This case demonstrates some of the failings we’ve identified in the processing of criminal record checks by the DBS. In this case, the DBS were unable to put on hold all the checks which were being undertaken by Danny’s company on other employees doing the same job. In addition, they would not investigate why his employers were quoting a different role on the DBS application form, something we believe is an integral part of the investigative process.

Links

Notes about this case study

This case study relates to Unlock’s casework.

Names and details have been changed to protect the identity of those involved.

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