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‘How long do I have to disclose my criminal record for?’ – A detailed guide to the Rehabilitation of Offenders Act 1974

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Working in the healthcare sector

Aim of this page

People who work in healthcare and other allied professions are part of a large and diverse workforce, caring for predominantly vulnerable individuals.

Employers recruiting into these roles can be especially risk averse and don’t always make the most sensible or proportionate decisions in terms of risk.

This page is part of our section on looking for (and keeping) employment and volunteering and pulls together some of the roles set out on our A-Z list of common occupations and professions.

Why is this important?

Many roles in the health and social care sector will require an enhanced Disclosure and Barring Service check. For anybody working in regulated activity (for example doctors or nurses) a check of the Children’s and/or Adults Barred List will also be carried out.

Having an understanding of the questions you will be asked by the appropriate relevant body, (for example the General Medical Council or the Nursing and Midwifery Council) and knowing what legally you need to disclose should ensure you do not over or under disclose. It will also allow you to give some thought to how you respond to any concerns raised by registering bodies or employers.

Doctor

To practice medicine in the UK you will need a licence and will have to join the UK medical register. As part of their registration process, the General Medical Council (GMC) will ask you to provide evidence of your fitness to practice. This will include details of any health conditions which may affect your ability to practice as a doctor as well as details of your criminal record.

What do the GMC need to know about your criminal record?

With regard to your criminal record, the GMC ask the following questions:

Have you been formally cautioned or convicted by the police or a court?

[If your caution or conviction is protected by law in the UK, answer ‘No’]”

If you have a caution or conviction that isn’t protected (filtered) you will need to give the following details:

  • The date the caution was issued or the date you were convicted
  • Details of the offence and the circumstances leading up to it
  • The name and address of the issuing court or police service
  • Whether you disclosed your caution/conviction to your employer or medical school/university, and if so, what the outcome was.

In addition to the above question, the GMC also ask:

Has any other action been taken against you by the police or a similar organisation?”

In their guidance, the GMC state that you should tell them about other police actions which did not result in a caution or conviction, for example if:

  • You have been interviewed under caution or arrested for a violent or sexual offence
  • You have been charged with a criminal offence and the outcome is pending
  • You have received a cannabis warning in England or Wales
  • If you have received a penalty notice for disorder for an upper tier offence.

You do not need to disclose Fixed Penalty Notices (FPN).

You can find further guidance from the GMC regarding the disclosure of cautions and convictions here.

How do the GMC make a decision when a caution or conviction is disclosed?

Disclosing a caution or conviction will not necessarily mean that the GMC will refuse your registration; they look at each application on a case-by-case basis. They will consider:

  • The seriousness of the offence and the punishment you received
  • Any mitigating factors
  • What you have done to address your offending behaviour.

The GMC Sanctions Guidance is used by the Fitness to Practice Panels when making their decisions.

Nurse

Student nurses

As part of a nursing degree, students will be required to carry out clinical placements which involve undertaking regulated activity.

It is usually the case that as part of their admissions process, universities will apply for a DBS check for anybody applying for a nursing course in readiness for clinical placements.

Staff new to the NHS

If you are new to the NHS, you will often receive a conditional offer of employment before your employer has received your DBS certificate. It’s important to note that although you will be able to complete an induction or training, you will probably find that your duties will be restricted to non-regulated activity until the outcome of your DBS check is known.

If you are going to be working in regulated activity with adults, an employer can find out whether you are on the barred list by carrying out a DBS Adult First check.

Existing staff changing jobs within the same organisation

A new DBS check will not usually be required if you are changing jobs within the same organisation and the roles and responsibilities of your new job do not change or do not require a different level of check.

The need for a new DBS check can be triggered when:

  • You’ve never had a criminal record check before and you are moving to a role that now requires you to have one.
  • Your new position significantly changes your role, responsibilities or the amount of contact you will have with vulnerable groups.

Employers will usually make it clear that staff have a contractual obligation to disclose any criminal cautions or convictions that are acquired during their employment. Failure to disclose relevant information relating to your criminal record or barred list status may lead to disciplinary action and possible dismissal.

Disclosure and Barring Service (DBS) checks

The level of DBS check carried out by the employer will depend on the role you are applying for. NHS Employers have produced some guidance around role eligibility which can be found here.

In May 2013 the rules around what is (and is not) disclosed on standard and enhanced DBS certificates was introduced. These rules were updated on 28 November 2020.

Under the filtering rules, you do not need to disclose any cautions or convictions that have been filtered (‘protected’), irrespective of whether you are going to be engaging in regulated activity. It is unlawful for an employer to take any protected cautions and convictions into account when making a recruitment decision.

Other types of check

Self-declaration

Many NHS Trusts will ask applicants to disclose details of their criminal record at application stage. Others will require successful applicants to complete a self-declaration form at job offer stage.

These declaration forms include a range of questions the employer is legally entitled to ask including information about criminal records, registration with professional bodies and fitness to practise. Employers might use the standard NHS model declaration forms or one that is organisational specific. It is important however that the employer uses the correct form for the job they are recruiting for so that applicants do not over or under disclose their criminal record.

  1. Model declaration form A – should only be completed if you are applying for a position which is exempt from the Rehabilitation of Offenders Act 1974. These are positions which are eligible for either a standard or enhanced DBS check and set out in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended) or the Police Act 1997.
  2. Model declaration form B – should only be completed if you are applying for a position which is covered by the Rehabilitation of Offenders Act 1974 and which requires a basic DBS check.

Overseas police checks

If you are applying for a job from outside the UK you will usually be asked to provide an overseas police certificate from your most recent country of residence. Further guidance on applying for an overseas police check can be found here.

How do the NHS deal with a positive disclosure?

Disclosing your criminal record to an employer does not automatically mean that you will be refused a position in the NHS. NHS employer’s consider each application on a case-by-case basis assessing the information provided during the application, interview and criminal record checking process.

Guidance published in January 2021 by NHS Employers suggests that before offering any appointment, line managers/HR should give careful consideration to individuals:

  • Currently on licence or a community order
  • Subject to a suspended prison sentence
  • Under a conditional discharge
  • Subject to Terrorism Prevention and Investigation measures.

Line managers/HR will in the first instance consider an individuals skills, experience and ability to do the job they’re applying for and should only take into account cautions/convictions which are relevant to the post.

  • How relevant the offence(s) is in relation to the job you are applying for.
  • That there are no legal or regulatory issues which would prevent you from doing the job – for example if the job involves regulated activity, make sure the employer knows that you are not on a barred list.
  • The nature and seriousness of the offence(s).
  • The age you were at the time of the offence(s).
  • Whether the offence(s) is a one-off or forms a pattern of offending.
  • The circumstances at the time you received your criminal record and what you have done since then.

As stated above, many NHS Trusts will ask you to complete a self-declaration form and, due to the complexities of the criminal justice system it can be easy for applicants to misunderstand or get confused about what needs to be disclosed. Unfortunately, employers will often become concerned about any discrepancies in the information you have provided compared with that shown on a DBS certificate and therefore, before disclosing to an employer we recommend you:

If you’re not sure about the date of your caution/conviction, what you were cautioned/convicted of or the sentence or disposal you received, apply for a copy of your police record. This is referred to as a Subject Access Request (SAR) and can be applied for online; it is free and takes approximately 30 days.

Find out what, (if any), level of criminal record check the employer will be doing.

If the role is covered by the ROA and requires a basic DBS check, use Unlock’s disclosure calculator to work out whether you have any convictions which are unspent and which need to be disclosed.

If the role is exempt from the ROA and requires a standard or enhanced DBS check, use our brief guide to find out which cautions/convictions will be removed from a standard/enhanced DBS and no longer need to be disclosed.

Other health and care professions

Allied health professionals make up the third largest clinical workforce in the NHS.

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  • Arts therapists
  • Biomedical scientists
  • Chiropodists/podiatrists
  • Clinical scientists
  • Dietitians
  • Hearing aid dispensers
  • Occupational therapists
  • Operating department practitioners
  • Orthopists
  • Paramedics
  • Physiotherapists
  • Practitioner psychologists
  • Prosthetists/orthotists
  • Radiographers
  • Speech and language therapists

All of the above roles are covered and regulated by The Health and Care Professions Council (HCPC).

When applying to join the HCPC Register you will be asked the following questions:

  1. Have you been convicted of a criminal offence or received a police caution (other than a protected caution or protected conviction)?
  2. Are you or have you ever been barred under the Safeguarding Vulnerable Groups Act 2006 and/or the Protection of Vulnerable Groups (Scotland) Act 2007 from working with children and/or vulnerable adults.

A criminal record will not automatically bar you from working in any of the above roles although disclosure is likely to lead to your registration needing to be considered at a panel hearing.

The HCPC’s guidance on health and character states that your application is likely to be rejected if you have been convicted or accepted a police caution for an offence involving:

  • Violence
  • Abuse
  • Sexual misconduct
  • Supply of drugs
  • Child pornography
  • Dishonesty

Any conviction which resulted in a prison sentence would usually mean that your application would be refused.

Useful links

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed can be found here.

More information

  1. For practical self-help information – We have further information on looking for (and keeping) employment and volunteering.
  2. To read personal stories – You can read stories about this posted on theRecord, our online magazine.
  3. To discuss this issue with others – Read and share your experiences on our online forum.
  4. Questions – If you have any questions about this you can contact our helpline.

Get involved

Help us to add value to this information. You can:

  1. Comment on this information (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum
  4. Share your personal story by contributing to our online magazine, theRecord.

Sexual offence convictions: what you need to know

Aim of this page

Being arrested by the police on suspicion of committing a sexual offence will, for most people, be an extremely stressful and upsetting experience. You are likely to be concerned that rumours and speculation in a case of this type will quickly and irreparably damage your reputation, and about the impact on you and your family.

This information is designed to raise awareness of the things you might need to know, depending on what stage you’re at: whether it’s an allegation, investigation or you have been convicted.

Introduction

Understandably, you will have lots of questions and concerns and the majority of people that contact our helpline after being arrested will ask, “what’s going to happen?”

There are many misconceptions about convictions for sexual offences and how they work in terms of disclosing to employers and others.

It’s important to know:

  • When your conviction becomes spent under the Rehabilitation of Offenders Act and what you’re legally required to disclose to employers if they ask
  • The impact of the sex offenders’ register and any civil order/s on rehabilitation periods

This information aims to cover some of the issues which may arise during the various stages of the criminal justice system and what we believe it’s important to know.

What is a sexual offence?

One of the biggest misconceptions relates to the definition of a sexual offence. Sexual offences cover a wide range of illegal behaviour, including rape and sexual assault, child sexual abuse, prostitution and some forms of pornography:

  • Sexual assault involves touching a person sexually without their consent, or coercing them to engage in sexual behaviour against their will.
  • Child sexual abuse involves forcing or inciting a person under the age of 18 to take part in sexual activity. This can involve physical contact, including non-penetrative acts such as kissing and touching outside of clothing. It can also involve non-contact activities, such as encouraging children to look at sexual images, or grooming a child in preparation for abuse.
  • It is an offence to take, make, possess or distribute indecent images of children. Images can include photographs or video footage, but also drawings, tracings and digitally created images.
  • It is illegal for children under the age of 18 to create or share sexual images of themselves, and for other children to have in their possession an explicit image of a child. Therefore, two 17 year olds in a relationship can be committing a crime by sharing explicit photographs of themselves with each other.
  • There are numerous offences related to prostitution. It is illegal to persistently solicit in public or offer or pay for sexual services; manage a brothel; or incite another person to become a prostitute for gain.
  • Pornographic images that are deemed to be obscene, for example due to including extreme violence, are illegal. It is an offence to disclose private sexual images of another person without their consent (so-called ‘revenge porn’).

Further examples of sexual offences and how the Crown Prosecution Service deal with them can be found here.

Being arrested for a sexual offence

Whenever an allegation of a sexual offence is reported to the police (or they become aware that a sexual offence may have occurred), it will be taken extremely seriously and thoroughly investigated.

Once a crime has been reported the police may invite you to attend a voluntary interview, which would usually take place at a police station. Alternatively, you may be arrested and taken to a local police station for questioning about an alleged offence. Your photograph, fingerprints and DNA will often be taken at this stage.

Whether or not you are guilty of the offence for which you are being questioned the first thing you need to do is to immediately seek legal advice. The police will ask you whether you’d like a duty solicitor to be called but you can ask them to contact a specific solicitor if you have one. An experienced solicitor will support you throughout the investigation and, should the police decide to charge you, they will be able to prepare for and represent you in court.

At the time of your arrest, the police may decide to remove property which they believe may be of interest to their investigation. This will usually include computers, laptops, telephone etc which you own and/or have access to (for example those belonging to your partner). The police will keep your property until their investigation is completed and you will be advised when it can be returned to you.

The police will usually ask about your occupation and any voluntary activities that you are involved in. If your work or voluntary role involves children and/or vulnerable adults or you’ve been arrested, investigated or charged with a ‘relevant offence’ then the police may decide to inform your employer and/or regulatory or licensing body.

Being investigated and charged with a sexual offence

If, following questioning, the police don’t have enough evidence to charge you but they believe they may be able to obtain this evidence over time, you will be released ‘on bail’. You will be asked to return to the police station on a specified date for further questioning at which time you could be charged, freed or re-bailed.

If the police decide to charge you then, depending on the seriousness of the offence, you will either be freed on ‘conditional bail’ or remanded in custody in prison. Bail conditions could include living at a certain address, surrendering your passport to the police or regularly reporting to a designated police station. Contact between you and any co-defendant or the alleged victim of the crime will usually be restricted.

Telling your employer that you’ve been charged

Depending on your occupation or voluntary role, the police may take the decision to inform your employers of your arrest/charge.

If they don’t, then generally there is no obligation on you to tell your employer about a pending conviction unless you are specifically asked to do so; this may be a condition in your contract of employment. However, there may be reasons why you would need to, for example:

  • The removal of devices by the police might make it difficult for you to work, especially if your phone/laptop are the property of your employer.
  • You’re worried that your employer may become aware of it from a third party (for example the police).

There is nothing in law which states that an employer has to dismiss anyone charged with a criminal offence. If you do disclose to your employer, then they will need to consider the nature of the offence, the nature of your job and the extent to which it involves contact with other employees or members of the public. Where a lack of equipment or bail conditions prevent you from doing your job, an employer might consider redeploying you in another part of the business.

Alternatively, they may decide to suspend you until the police investigation is concluded and, in some cases, they may feel that the only option is to disassociate themselves from you especially if they are worried about any potential damage to the reputation of the company or brand.

At a recent Appeal Tribunal [Governing Body of Tubbenden Primary School v Sylvester] a school argued that the reason for dismissing a teacher, who continued her friendship with another teacher arrested for possessing indecent images of children, was the potential damage to the school’s reputation. The Tribunal accepted that the reason for the dismissal was potentially fair.

Being convicted of a sexual offence

Sentence or disposal

If you are found guilty of a sexual offence, various factors will be taken into consideration when determining the sentence or disposal you will receive. Your solicitor will usually be able to give you an indication of what this is likely to be.

However, it’s important to be aware that in addition to a prison sentence or community order, the court may choose to issue you with an additional order relating specifically to sexual offences, for example a Sexual Harm Prevention Order (SHPO). These preventative orders (often referred to as a ‘relevant order’) enable the court to impose prohibitions on those convicted of an offence listed in Schedule 3 or Schedule 5 of the Sexual Offences Act 2003 either in the UK or overseas.

Prohibitions could include:

  • Working with any person under the age of 18 in any capacity.
  • Visiting or residing in any location where a child aged 16 or under is present unless their parent or guardian has knowledge of the offending history.
  • Accessing the internet on a device that does not have approved monitoring software installed.

These orders can potentially have a significant impact on your life, not only because of the prohibitions that they impose but because, as long as they are in force, your conviction cannot be spent under the Rehabilitation of Offenders Act 1974. If you breach any of the prohibitions set out in the order this could result in a return to prison or a further conviction.

Sex offence notification requirements (the Sex Offenders’ Register)

Individuals convicted of a sexual offence will usually be made subject to notification requirements: the Sex Offenders’ Register (SOR). Whilst on the register you must notify the police within three days if you change your name, address or bank account or plan to travel abroad. You must also notify the police if you start regularly staying at another address and if you begin living with a child. The time you spend on the register will be determined by the sentence or disposal you receive. If you receive a prison sentence of 30 months or more, you will be on the register indefinitely although you can ask for this to be reviewed after 15 years has elapsed. Some individuals convicted of sexual offences may also be required to undergo polygraph examinations.

Since 2001 people on the register have been subject to management through the Multi-Agency Public Protection Arrangements, commonly referred to as ‘MAPPA’, This involves the police, probation service and prisons working together, sometimes with other agencies such as social services, to monitor and manage the risk of harm presented by those convicted of sexual and/or violent offences.

Children’s and adults barred list

If you have been working in ‘regulated activity’ and are cautioned or convicted for a relevant offence the DBS may consider adding you to the children and/or adult barred list. If you are on a barred list you will be breaking the law if you apply for or work in regulated activity with a group that you are barred from working or volunteering with.

Having an unspent conviction

It is often at this point that the reality of having a conviction starts to kick in. Up until now, you will have been concentrating on the police investigation and its outcome, the court hearing and then dealing with a prison sentence or the requirements of any community order. Once these are out of the way, the impact of a criminal record and the changes it brings to your life may become clearer.

Depending on your occupation, returning to your previous career may prove problematic. If you’ve always worked with children or vulnerable adults then returning to this type of work with an unspent conviction may be difficult; employers in this sector can be particularly risk averse. Although the thought of working in a new field can be daunting, it doesn’t have to be; you could think of it as an opportunity to start a new career or even your own business.

Convictions for sexual offences can become spent under the Rehabilitation of Offenders Act in the same way as any other conviction. The time it takes to become spent will depend on the sentence or disposal you received. Until the rehabilitation period has elapsed, your conviction will be considered unspent, and you will have to disclose it if asked by a potential employer (or when applying for insurance, or to rent a property or take out a mortgage).

Employment

While your conviction is unspent, you do not have the legal protection of the Rehabilitation of Offenders Act and you will have to disclose your conviction when asked to do so. Since most employers ask at application stage, people with unspent convictions are at immediate risk of discrimination. Many employers carry out Disclosure and Barring Service (DBS) checks and an unspent conviction will be disclosed on all levels of check.

In addition to asking you about your criminal record and carrying out DBS checks there are other ways an employer can find out about your conviction:

  • MAPPA can require you to disclose your conviction to a prospective employer even when the employer does not ask.
  • Employers can do internet searches to find out more about a candidate and this will often reveal details of convictions through online news reports.

We know that people with convictions are at greater risk of employment discrimination than those from other marginalised groups. People with convictions are not offered the legal safeguards of the Equality Act 2010, and prejudice towards them is generally considered acceptable. In 2016, a survey commissioned by the Department of Work and Pensions found that out of 1,849 employers, 50% would not consider employing ‘offenders and ex-offenders’. Unfortunately it appears that employers are particularly averse to hiring people convicted of sexual offences, believing them to be incapable of change and at high risk of reoffending (despite evidence showing that people convicted of sexual offences tend to be less likely to reoffend than those with other types of convictions).

A campaign launched in 2013 by organisations including Unlock, Business in the Community and others, encouraged employers to ‘ban the box’ from application forms, asking instead about criminal convictions at a later stage of the recruitment process. Over 150 employers have now signed up to ban the box. Unlock’s list of friendly employers has identified a number of employers who, either as a result of their recruitment process or company ethics, have a positive attitude towards people with convictions.

Education

If you’re considering applying for a course at university you will usually be asked to disclose ‘relevant’ unspent convictions. Many sexual offences are considered a ‘relevant’ offence and you may be asked to provide additional information relating to your conviction to the university to assist in their decision making process.

If the university believe you pose an unacceptable risk or you would be unable to meet the particular professional or statutory requirement that exists for some courses you may be refused entry or offered an alternative course.

If you are looking to live on campus, the university/police may raise concerns around the safety and impact on you and other students (for example receiving regular visits from the police may highlight the fact that you have a criminal record). Some universities have addressed this issue by offering students the choice of single sex and self-contained accommodation.

Insurance

While your conviction is unspent you will need to disclose it to an insurer if asked. It can be harder to get insurance if you’ve been convicted of a sexual offence and it is likely to be a lot more expensive. However, if you don’t disclose and the insurer were to find out about your conviction they will usually cancel your policy. If you need to make a claim, an insurer can carry out a basic DBS check to establish whether you had an unspent conviction at the time you took out your policy.

Details of motor insurers and insurance brokers who offer policies to individuals with unspent convictions can be found here.

Having a spent conviction

As stated above sexual offences can become spent under the Rehabilitation of Offenders Act (ROA) in the same way as any other conviction.

It’s important to note that the length of time it takes for a conviction to become spent can be different to how long you will be subject to the notification requirements. As a result, it is possible for a conviction  to be ‘spent’ under the ROA but you will still be subject to the notification requirements.

Employment

Once your conviction is spent, you don’t need to disclose it for any job covered by the ROA (even if you are still on the register). Until your notification requirements end, there is always a chance that the police will want a potential employer to know that you are on the register, especially if the job involves working with vulnerable groups.

You will now be able to apply for most jobs safe in the knowledge that if an employer were to carry out a basic DBS check nothing would be disclosed. However, if an employer were to undertake an ineligible check (for example a standard or enhanced DBS instead of a basic) then this could result in them becoming aware of a conviction which, legally, they are not entitled to know about. You may find that once they know about it, they decide to withdraw the job offer. It’s important therefore to be sure that an employer is doing the correct level of check. Our A-Z of job roles and their eligibility for basic, standard and enhanced DBS checks sets out the levels of DBS checks which may be undertaken for various jobs and roles.

You now have some protection under the ROA and employers cannot legally refuse you a job on the basis of a spent conviction. However, in our experience many will give another reason as to why your application has been unsuccessful.

Some employers carry out Google searches as a way of informally checking someone’s criminal record. If there are stories on the internet which relate to your conviction, an employer may be able to find details of your spent conviction which they may not legally be entitled to know about. In May 2014, Google (and other search engines) launched a system whereby individuals can request information about them be removed from search engine results. Google state that they are more likely to consider de-listing results relating to relatively minor offences that happened a long time ago rather than results relating to recent convictions for more serious offences. As the online application form is relatively quick and easy to complete, it may be something worth considering.

If you’re applying for a job which is exempt from the ROA and which requires a standard or enhanced check then spent convictions will be disclosed unless they are eligible for filtering. Although the filtering system was introduced to prevent the disclosure of old and minor cautions and convictions on standard and enhanced DBS certificates, in practice very few sexual offences are eligible for filtering.

Education

As universities usually only ask applicants to disclose unspent convictions when applying for courses, a spent conviction will allow you to apply for a lot more courses without having to disclose your conviction. If you’re considering applying for a course which would involve working with children or vulnerable adults and where an enhanced DBS check would be required (for example a nurse or a teacher) then you would need to disclose your conviction.

The ongoing effects of a sexual offence conviction

Travel

Being on the SOR means that you have to notify the police of all foreign travel. You will need to provide the police with the following information at least seven days prior to your departure:

  • The date of departure from the UK
  • The destination country (or, if there is more than one, the first) and the point of arrival in that country
  • The point(s) of arrival in any countries that will be visited in addition to the initial destination country
  • The carrier(s) you intend to use to leave and return to the UK or to any other point(s) of arrival while you are outside the UK
  • Details of accommodation arrangements for the first night outside the UK
  • The date of re-entry to the UK and point of arrival.

Once you have informed the police, your travel arrangements will be risk assessed and any appropriate action taken – this may include sharing the information with other agencies and countries. Where the police believe ‘a person to be a possible threat to public safety’, they may decide to issue a Green Notice through the Interpol Criminal Information System relating to your criminal record.

If a Green Notice has been issued then customs/immigration will be aware of it when your passport is scanned. This can sometimes result in you being taken to one side (or to an office within the airport) and asked further questions about your visit. Immigration will then decide whether to admit you or deny you entry.

Partners and family

Being convicted of a sexual offence can impact on other family members, especially if they work with or have children of their own.

If your partner’s occupation involves working with children and/or vulnerable adults then the police may feel it necessary to inform their employers of your conviction. If they need an enhanced DBS check then the police may choose to disclose your conviction as police intelligence (sometimes referred to as additional information) if they believe it is necessary. Although this rarely happens, in our experience it can cause partners a huge amount of worry and anxiety as they wait to receive their DBS certificate.

If you have children of your own then depending on the offence you were convicted of, there is a chance that there will be some involvement with children’s services, even if the offence was nothing to do with your own child. A risk assessment may be needed before you will be allowed any unsupervised contact, overnight stays or a return to the family home.

For further information visit our page on relationships, children and dealing with social services.

Employers’ attitudes towards hiring people convicted of sexual offences

In 2020 we worked with the Prison Reform Trust to explore employer’s attitudes towards hiring people convicted of sexual offences. The report “Thinking Differently – Employers’ views on hiring people convicted of sexual offences” can be found here.

The report identified several barriers to employment for people with sexual offence convictions. The majority of employers who responded to our survey were concerned about other employees’ reactions (65%), customer safety (62%) and workplace safety (54%).

The survey identified a range of factors that would make employers more willing to consider hiring people with sexual convictions, with half stating they would feel more confident if they had access to management advice (58%), believed that the applicant wouldn’t reoffend (55%) or knew that the person would be under strict probation supervision (49%). Around a third would be reassured by believing that other workers would accept them (39%) and by knowing that the offence was not ‘too serious’ (30%).

Our findings tentatively suggest that providing employers with some basic information might make them less concerned, in some ways, about hiring people with sexual convictions.

Personal experiences

The personal stories below have been posted on theRecord, our online magazine:

Discuss this with others

Read and share your experiences on our online forum.

Key sections include:

More information

  1. For practical information – Find more information on sexual offences
  2. To read personal stories – You can read stories about this posted on theRecord, our online magazine
  3. To discuss this issue with others – Read and share your experiences on our online forum
  4. Questions – If you have any questions about this, you can contact our helpline.

 

 

Criminal records that don’t show (stay) on standard and enhanced DBS checks (filtering and protected cautions and convictions)

Aim of this information

In July 2020 the government announced plans to change the rules on what is disclosed on (and removed from) standard and enhanced criminal record checks issued by the Disclosure and Barring Service (DBS). This was in response to a Supreme Court ruling in 2019. This information sets out the filtering process incorporating the changes made by the government that came into effect on 28 November 2020.

Note – This information focuses on how the filtering process works in England and Wales

Disclosure Scotland has guidance on the filtering process that applies to standard and enhanced checks in Scotland on their website.

The Department of Justice in Northern Ireland has guidance on the filtering process that applies to standard and enhanced checks in Northern Ireland on their website.

Why is this important?

If you are applying for a job or role which is ‘exempt’ from the Rehabilitation of Offenders Act and which requires a standard or enhanced DBS check, your DBS certificate will disclose details of all spent and unspent cautions and convictions unless they are eligible for removal (often referred to as filtered or protected).

If your criminal record meets the criteria set out below it will automatically be removed from your DBS certificate at the time an application is made.

Many organisations ask individuals for some kind of criminal record self-disclosure at application stage and it’s important therefore to know whether your offence will be removed from your DBS certificate to ensure that you do not disclose it to an employer if, legally, you don’t need to.

Background

Since May 2013, standard and enhanced DBS checks stopped disclosing all cautions and convictions after the introduction of a process referred to as ‘filtering’.

In July 2020, in response to a Supreme Court ruling in 2019, the government announced further changes to the process which came into force on 28 November 2020. These changes will see more people benefiting from having cautions and/or convictions removed from standard and enhanced certificates, allowing them to apply for jobs without the need to disclose old cautions and/or convictions.

‘Filtering’ is similar to the rehabilitation periods under the Rehabilitation of Offenders Act 1974. However, instead of establishing what is ‘spent’ and doesn’t get disclosed on a basic check, ‘filtering’ establishes what doesn’t get disclosed on a standard or enhanced DBS check.

Information that is filtered will be removed from a DBS check automatically at the point you apply for one. However, cautions and convictions do not get ‘removed’ or ‘wiped’ from the Police National Computer (PNC).

Recent changes to the criminal records disclosure regime

The changes which have been made to the criminal records disclosure regime apply to jobs and voluntary roles that involve a standard or enhanced check issued by the Disclosure and Barring Service (DBS). The new rules mean that:

  • Warnings, reprimands and youth cautions (including conditional cautions) will no longer be automatically disclosed on a DBS certificate.
  • The multiple conviction rule has been removed. This means that individuals with more than one conviction will have each conviction considered individually against the criteria, rather than all being automatically disclosed.

How filtering works

What will be disclosed on a standard or enhanced DBS check?

The rules around what cautions and/or convictions are automatically disclosed are set out in legislation. The table below provides details of what a standard or enhanced certificate must include:

* A full list of specified offences can be found on the DBS list of offences that will never be filtered.

What will not show up? Cautions

  • Reprimands, final warnings and youth cautions (including conditional cautions) received when under the age of 18 will be removed from standard and enhanced checks immediately, regardless of the offence. This means that even if your caution was for a specified offence it would still be removed.
  • Adult cautions will be removed from standard and enhanced checks if 6 years have passed since the date of issue, providing it is not for a specified offence.

The process applies no matter how many cautions you have. Cautions will be removed even if you have others which are not (for example where others are for a specified offence or they are too recent).

What will not show up? Convictions

Convictions received when 18 or over will be removed from standard and enhanced checks if:

  • 11 years have passed since the date of conviction.
  • they did not result in a prison sentence (or suspended sentence).
  • they were not for a specified offence.

The process applies no matter how many convictions you have. They will be removed even if you have others which are not (for example where others are for specified offences or they are too recent).

For a conviction received when under 18, the same rules apply as for adult convictions, except that the elapsed time period is 5.5 years.

Offences that stay on (‘specified offences’)

A ‘specified offence’ is one which is on the list of offences that will never be filtered from standard and enhanced DBS checks. The list includes a range of offences which relate to sexual or violent offences, or are relevant in the context of safeguarding.

The table below provides a summary of the types of offences which are eligible for removal and those that are not.

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Find out whether your conviction/caution will be filtered

To establish whether your caution and/or conviction is going to be removed from your standard or enhanced check and, doesn’t need to be disclosed to an employer, you can use our flowchart below:

Positions not covered by filtering

There are a small number of jobs where filtered cautions and/or convictions can be taken into account. Some examples of this include police vetting for police constables and cadets. A court ruling in 2017 established that the filtering rules should be applied by the police when recruiting for other roles such as service support officers. Other positions include:

  • Judicial appointments;
  • Constables and persons appointed as police cadets to undergo training with a view to becoming constables and naval, military and air force police;
  • Any office or employment in the Serious Fraud Office or in the National Crime Agency;
  • The Commissioners for Her Majesty’s Revenue and Customs and any office or employment in their service;
  • The Official Solicitor and his deputy;
  • Certain appointments to the office of Public Trustee;
  • Any office, employment or other work which is concerned with the establishment of, operation of, or access to a database under section 12 of the Children Act 2004;
  • Firearms dealer; and
  • A person who is required to obtain an explosives certificate.

Disclosure of criminal records in these instances is not provided by the DBS.

Prison and probation roles are not exempt from the filtering rules and applicants can therefore legally withhold details of cautions/convictions which are removed from standard and enhanced DBS checks.

Other information disclosed on enhanced DBS certificates

In addition to cautions and convictions recorded on the PNC, enhanced certificates may also include police intelligence (approved information) if a chief officer of a police force considers it relevant. The disclosure of this information is subject to statutory guidance but the police could, in principle, disclose information about offences which have been filtered from an enhanced certificate if they felt that it was relevant to the position applied for and ought to be disclosed.

We have not previously seen any evidence of this but we would be interested in hearing from anybody who has had filtered cautions/convictions disclosed on their enhanced DBS certificate. Please email us at policy@unlock.org.uk.

If you use the DBS Update Service

If you are signed up to the DBS Update Service it is important to note that the filtering of a caution or conviction would not lead to a status change. A status change is only prompted when there is new information to be added, or an offence needs to be changed or amended, or because you have become barred. An offence which has been filtered would mean the removal of information from your certificate.

If you require a new certificate which does not show cautions or convictions which have been removed, you will need to apply for a new DBS check.

If an organisation currently holds information about your criminal record

In order to comply with data protection legislation any organisation that keeps criminal record information will need to consider how they manage the data they hold.

If you have previously disclosed details of your criminal record to an employer, university etc we recommend that you ask them to amend or delete their records as soon as your caution and/or conviction is filtered under your rights of rectification.

Information for employers

Where a role is included in the ROA Exceptions Order, employers can ask about cautions and convictions which are ‘not protected’ (filtered). In light of the changes introduced in November 2020, employers will need to review the questions they ask on application forms together with any guidance they provide.

Further information can be found here.

If an employer takes into account a conviction or caution which has been removed (possibly because it was disclosed in error) then they could be acting unlawfully. You can find further information on our spent and unspent convictions and employment law page.

Examples

Below are some scenarios that will help to explain how the rules work in practice:

Marcus was a teenager when he was convicted of 6 offences of theft between 1992 and 1994. These will no longer be disclosed on standard or enhanced DBS checks as the convictions happened more than 5.5 years ago, when Marcus was under 18.

Sasha was convicted of 4 counts of benefit fraud in May 2012, when was was 31. These will be removed from standard or enhanced DBS checks in May 2023, 11 years after Sasha was convicted as an adult.

Anita received a reprimand for arson at age 11, and a final warning for ABH aged 14. Reprimands and final warnings, issued to under 18’s and since replaced by youth cautions, will never be disclosed on standard or enhanced checks, regardless of the offence.

Lenny was convicted of ABH at age 14. He received a youth referral order. His conviction will continue to be disclosed on standard or enhanced checks because he was convicted of an offence that is on the list of offences which cannot be filtered.

Kyle accepted a youth caution for common assault in 2001, when he was 16. He was convicted of drug possession in 2010 when he was 25 and paid a fine. His youth caution will never be disclosed on standard or enhanced checks. His conviction for drug possession will be removed from checks in 2021 – 11 years after the date of conviction.

Abdi was convicted of drink driving in 2009 when he was an adult – he was disqualified and paid a fine. Three years later, he was convicted of drink driving again and was sentenced to 12 weeks in prison, suspended for a year. Abdi’s first conviction will be filtered from a standard or enhanced DBS check this year, 11 years after he was convicted. His second conviction will always be disclosed because he received a suspended prison sentence.

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed can be found here.

More information

  1. For practical self-help information – We have further information on employment
  2. To discuss this issue with others – Read and share your experiences on our online forum
  3. Our policy work – Read about the policy work we’re doing on this issue
  4. Questions – If you have any questions about this you can contact our helpline.

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Which cautions and convictions will be removed from a standard or enhanced DBS? – A brief guide

In July 2020 the government announced plans to change the rules of what is disclosed on (and removed from) standard or enhanced criminal record checks issued by the Disclosure and Barring Service (DBS) in response to a Supreme Court ruling in 2019. The changes came into effect on 28 November 2020. This brief guide explains what those changes mean. Find out more about the changes here.

What information can be removed from standard or enhanced DBS checks?

Some cautions and spent convictions can become ‘protected’. Once protected, they are ‘filtered’, meaning they won’t be disclosed on standard or enhanced DBS checks.

Filtered cautions and convictions do not appear on a standard or enhanced DBS check. However, they are not ‘removed’ or ‘wiped’ from police records.

  • If you’re applying for a job or role that involves a standard or enhanced DBS check, cautions and convictions that are filtered won’t be included on results of the check.
  • If you’re carrying out a standard or enhanced DBS check as an organisation, you should be clear to applicants that they do not have to disclose any cautions or convictions that are filtered and you must ignore any filtered cautions/convictions if you become aware of them.

What are the key changes?

There are two main changes to the current rules that happened in November 2020:

  1. Reprimands, final warnings and youth cautions are no longer disclosed: Regardless of the offence, reprimands, final warnings and youth cautions are no longer disclosed on any DBS check.
  2. Multiple convictions can be filtered – Provided the offence is eligible and didn’t lead to a suspended or actual prison sentence, convictions can now be filtered from standard and enhanced DBS checks after the relevant time period has passed, even if there is more than one conviction or offence on record.

What is staying the same?

  1. The list of offences – the “offence rule” – The list of offences that cannot be filtered has not changed. Read our list of common offences that can be filtered here. The full list of offences that cannot be filtered, published by the DBS, can be found here.
  2. Prison sentences – the “sentence rule”– Convictions that resulted in a prison sentence (or suspended sentence) cannot be filtered.
  3. The time periods – The time periods before adult cautions and spent convictions can be removed remain the same.

These changes apply to what is disclosed for jobs and roles that involve a standard or enhanced DBS check. The rules for what is disclosed on basic criminal record checks are set out in the Rehabilitation of Offenders Act 1974 (ROA). Basic checks show unspent convictions. Once a conviction is spent, it will not be disclosed on a basic check. Read our guidance on the Rehabilitation of Offenders Act 1974.

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Examples of how the new rules will affect existing criminal records

Marcus was a teenager when convicted of 6 offences of theft between 1992 and 1994. Under the new rules these will no longer be disclosed on standard or enhanced DBS checks as the convictions happened more than 6 years ago, when Marcus was under 18.

Sasha was convicted of 4 counts of benefit fraud in May 2012, when she was 31. Under the new rules, these will be removed from standard or enhanced DBS checks in May 2023, 11 years after Sasha was convicted as an adult.

Anita received a reprimand for arson at age 11, and a final warning for ABH at age 14. The new rules mean reprimands and final warnings, issued to under 18s and since replaced by youth cautions, will never be disclosed on standard and enhanced checks, regardless of the offence.

Lenny was convicted of ABH at age 14. He received a youth referral order. His conviction will continue to be disclosed on standard or enhanced checks because he was convicted of an offence that is on the list of offences that cannot be filtered.

Kyle accepted a youth caution for common assault in 2001, when he was 16. He was convicted of drug possession in 2010 when he was 25 and paid a fine. His youth caution will never be disclosed on standard or enhanced checks. His conviction for drug possession will be removed from checks in 2021 – 11 years after the date of conviction.

Abdi was convicted of drink driving in 2009 when he was an adult – he was disqualified and paid a fine. Three years later, he was convicted of drink driving again and was sentenced to 12 weeks in prison, suspended for a year. Abdi’s first conviction will be removed from a standard or enhanced DBS check this year, 11 years after he was convicted. His second conviction will always be disclosed because he received a suspended prison sentence.

Flowchart

 

 

 

Settled status: what you need to know if you are an EU citizen and have a criminal record

Introduction

This information is about the EU Settlement Scheme for applicants with a criminal record.

The EU Settlement Scheme protects the rights you currently have in the UK through the process of applying for settled or pre-settled status.

As part of the applications process, there are questions about criminal records and checks are carried out by the Home Office.

It is difficult to give clear information on how the Home Office will treat applications from people with criminal records. We do not know how the Home Office is applying its own guidance so this information cannot tell you categorically what to expect, although the Home Office appears to be taking a very long time to make decisions in many applications from people with criminal records.

The vast majority of applicants with a criminal record should find their criminal record is not a barrier to settled or pre-settled status. That said, you may still be refused settled or pre-settled status because of the suitability criteria.

The key points to know are that:

  1. Having a criminal record should not put you off applying
  2. It’s important to apply as soon as you can. The deadline is 30 June 2021, but you should apply as soon as possible
  3. If you have lived in the UK for five years or more and have no unspent convictions, it is unlikely that your criminal record will be a barrier
  4. If you have unspent convictions, or you have a criminal record and have lived in the UK for less than five years, you should get specialist advice.

Key parts of this information are:

This information goes into more detail on these key points and other areas that people with criminal records and those supporting them should be aware of.

This information is not a detailed guide to settled status. There are links to more general details on settled status in the useful resources.

You can also download a one-page PDF summarising the key information

What type of immigration status does the EU Settlement Scheme grant?

The process of successfully receiving status through the EU Settlement Scheme allows EEA citizens and their family members to continue to live, work and study in the UK after 30 June 2021. Successful applicants will continue to be eligible for:

  1. Public services, such as healthcare and education
  2. Public funds, pensions, access to benefits
  3. British Citizenship if conditions are met

The requirements of settled status are mainly based on UK residence. The Home Office will check how long you have been in the UK and not what you have been doing here. Settled status is not dependent on your employment, whether or not you receive benefits or hold private health insurance.

This means that EU citizens and their family members who have been continually resident in the UK for at least five years should get settled status. The five year residence in the UK does not need to have been in the most recent five years. People who have previously lived in the UK for five years can apply for settled status even if they do not live in the UK anymore, as long as they have not been absent from the UK for more than five consecutive years or have not been deported or excluded.

Those who have lived in the UK for less than five years will have to apply for temporary pre-settled status, which is valid for five years from the date of the decision letter. This will allow them to stay in the UK and apply for settled status once they have achieved five years’ continuous residence in the UK.

Those applying for settled or pre-settled status must also prove their nationality, identity, eligibility and subject themselves to a criminality check (see below).

Do I need to apply to stay in the UK?

If you want to continue to live in the UK, you will need to apply for settled or pre-settled status. You must show that you are from either:

  1. a country in the EU, European Economic Area (EEA) or Switzerland
  2. another country and you have a family member who is from the EU, EEA or Switzerland

unless you have indefinite leave to remain in/enter the UK or are a British citizen (you hold dual nationality).

The EEA includes EU countries and Norway, Iceland and Liechtenstein.

If your application is successful, you will be granted either settled or pre-settled status. With either status, you will be able to continue living and working in the UK after 30 June 2021.

Many people with a criminal record feel nervous about applying and are worried they will be refused.

Will my criminal record affect my application for settled status?

The vast majority of applicants with a criminal record should find that their criminal record is not a barrier to settled or pre-settled status.

If you have not applied for settled or pre-settled status by 30 June 2021, you will not be able to continue living and working in the UK and so you must make an application if you want to continue living in the UK.

If you do not apply before 30 June 2021 then you will become unlawfully resident in the UK which will affect your right to continue living and working here.

Although the Home Office will accept late applications where there is a good reason for missing the deadline, it is important to try to not be in this difficult position and so you should apply as early as possible.

In some situations, where you have unspent convictions or serious offences, it may be necessary to write detailed legal representations in support of your application so that it is not refused or a deportation order is not issued (see more on this below). It is strongly recommended that in these circumstances, you get specialist advice before making your application.

When should I apply?

Your application must be made by 30 June 2021.

Although the deadline is 30 June 2021, you should apply to stay in the UK as soon as possible. After 31 December 2020 you might be asked to prove your right to do things like get a job or use the NHS.

Until 30 June 2021 you can still prove your rights in the UK with your passport or national identity card (if you are an EU, EEA or Swiss citizen), or with your biometric residence document. However, you’ll also be able show you have pre-settled status or settled status as another way of showing your rights.

What questions are asked about criminal records?

If you are over 18, you will be asked the following question as part of your application for settled status:

Have you ever been:
– Convicted of a criminal offence
– Arrested or charged with an offence that you’re on trial for or awaiting trial

This includes offences in the UK or any other country

Children (those under the age of 18) will not be asked this question. However, the Home Office says that all applicants over the age of 10 will be checked against relevant criminal records databases, including the Police National Computer (PNC). This means that in some cases it might be necessary to declare offences even if you are under 18 years old. If you are not sure about this, it is strongly recommended that you get specialist advice before making your application.

How should I answer the question about criminal records?

Home Office guidance states:

You do not need to declare any of the following:
– convictions that do not need to be disclosed (“spent convictions”)
– warnings (“cautions”)
– alternatives to prosecution, for example speeding fines”

Have you got a spent conviction?

Under the Rehabilitation of Offenders Act 1974, convictions become “spent” in England & Wales after a period of time which is determined by the sentence received.

If you received your conviction in this country and are confident that it is now spent, you do not need to declare it. So long as you have not been arrested and awaiting an outcome of a police investigation, or on trial or awaiting trial, or you can answer “No” to the question.

Although you don’t need to declare spent convictions, for more serious and recent convictions, even if they are now spent, you may want to get specialist advice in support of your application and ask for your application not to be referred for a deportation decision (see more on this below).

Have you got an unspent conviction?

If you received your conviction in this country and it is not yet spent under the Rehabilitation of Offenders Act 1974, you need to answer “Yes” to the first question about your criminal record. You should get specialist advice to support you with your application.

Not sure if your conviction is spent?

You can find out more details about working out if your convictions are spent in England & Wales on this page about spent periods. You can also use our online tool, available at www.disclosurecalculator.org.uk.

If you are not sure if you need to declare a conviction, or if you cannot remember the details, you could:

  1. Apply for your own basic DBS check. This costs £18 and will show any unspent convictions.
  2. Apply for a copy of your police record by making a subject access request. This will show all convictions recorded on the Police National Computer. It won’t separate out unspent and spent convictions and it could also include convictions from overseas as well.

If you are not sure if a conviction is spent, you may decide to declare it. There appears to be no obvious downsides to declaring a spent conviction that didn’t need to be declared.

Overseas conviction?

If your conviction was overseas, the Home Office question suggests that if in that country it would no longer show on your criminal record, you do not have to declare it.

It can be difficult to properly understand the laws on when criminal records no longer show up in the country it was received in, as these laws are different to the way convictions become spent under Rehabilitation of Offenders Act 1974 in England & Wales. There is a comprehensive resource which has country-specific information on overseas criminal record checks and which convictions appear on the certificate issued in that country.

Unless you are confident that your conviction is the equivalent of being spent in the country you received it in, you should declare it.

Not sure?

You might be worried about providing false or misleading information. This should only be a problem if it can be shown that information which wasn’t declared was “material to the decision” – this is likely to mean not declaring serious criminal convictions. However, if you are not sure if your conviction is spent or not, you may choose to err on the side of caution and declare it, given that there appears to be no obvious downsides to declaring a conviction that didn’t need to be declared.

What are the questions if I answer “Yes” to having a criminal record

If you answer “Yes” to the first question, there are then further “Yes/No” questions which, if you need to answer “Yes” to, you will be asked to provide more details. These are:

  1. Have you been convicted of a criminal offence in the UK in the last 12 months?
  2. Have you had a criminal conviction outside the UK that involved any of the following:
    1. a violent offence
    2. a drug-related offence
    3. a prison sentence of 12 months or longer
  3. Have you ever been arrested or charged for an offence for which you are currently on, or awaiting, trial or which is pending a decision to charge?

What checks are done?

Guidance from the Home Office suggests that all applications from those aged 10 or over are checked against databases including the PNC, and this could include revealing spent offences.

Will I be eligible for settled or pre-settled status with my criminal record?

The Home Office say that if you have only been convicted of a minor crime you will still be eligible for settled or pre-settled status.

The Home Office has not published details on how they define “a minor crime” and so it is difficult to give any definitive information. However, we know a number of cases where people who had lived in the UK for more than five years, then been convicted in the last five years, received prison sentences of less than a couple of years and have since been granted settled status.

However, as covered below, if a crime leads to a prison sentence that is served over 30 June 2021, and if you have less than five years continuous residence, you cannot meet the eligibility to be granted pre-settled status as you will not have begun a continuous qualifying period before the specified date.

Will my application be referred to Immigration Enforcement?

Your application will be received by a casework team. From information provided on the application form and the information obtained from the PNC, if your criminal record requires assessment, your application will be paused and moved to a different team for a case-by-case consideration.

According to Home Office guidance, applications will be moved in this way if:

  • In the last five years you have received a conviction which resulted in a prison sentence
  • You have ever received a conviction which resulted in a prison sentence of 12 months or more as a result of a single offence.
  • In the last three years, you have received three or more convictions (including non-custodial sentences) unless you have lived in the UK for five years or more. This category would include persistent offending. ‘Persistent’ offending is where a person has a number of convictions for minor offences or non-custodial sentences, suspended sentences, restraining orders, Anti-social Behaviour Orders or police cautions. Whether an applicant will be classed as a persistent offender really depends on the facts of the individual case, taking into account the nature and frequency of the offences. The passage of time since the individual’s last offence will be a factor for consideration but will not, in itself, be determinative.
  • You are currently in prison and your case is awaiting deportation consideration.

If you have a criminal record that is not covered by the above, it is unlikely that your application will be referred as a result of your criminal record.

Your application won’t be referred if:

  1. A recorded decision has previously been made not to pursue deportation
  2. A previous decision to deport was overturned on appeal
  3. You received a prison sentence and at the time you were in prison, your conviction did not meet the criteria for referral (see below)

All three situations above are based on you having not committed any further offences that meet the above criteria.

You might not be told that your application has been referred, but if it has then it is likely to take much longer than other applications.

What happens if my application is referred?

If you make an application for settled status and your criminal record means that you might meet the criteria for deportation, no decision will be reached on your application until your case has been referred to Immigration Enforcement and a decision made on whether to pursue deportation on the facts of the case.

This means:

  • Your settled status application will be put on hold, potentially for a long time, while you are considered for deportation
  • It is not clear that you will be informed that this is happening
  • The Home Office might be in touch by telephone or writing to ask for further information, and you may be required to attend an interview
  • It is only if you are served with a deportation decision that your application for settled status will be refused due to a criminal record. If a deportation decision is made and the settled status application is refused, it is not clear whether the Home Office will attempt to detain you

Will a previous prison sentence lead to a referral?

As long as you have not committed a further offence that meets the referral criteria, your application won’t be referred if you have received a prison sentence and, at the time you were in prison, your conviction did not meet the criteria for referral to the Home Office for deportation.

The Home Office publishes criteria in the ‘Referral to Immigration Enforcement’ section of the suitability guidance. The key points are:

  • Prison sentences of up to two years in length received before 1 April 2009 do not lead to a referral
  • Prison sentences from before 6 October 2015, where the prison sentence is still being served, will be referred
  • If your prison sentence was before 6 October 2015 and you have been released, you have not been deported and so can apply
  • If your prison sentence was after 6 October 2015, this leads to consideration for deportation. If you are (or have been) released then you have already been referred/considered and not deported. If you are still serving a sentence then you will be referred (even if for a very short sentence)

Overseas convictions

The section above on answering the questions asked covers whether you need to declare overseas convictions.

The Home Office will look to get details of overseas convictions where these are declared by you, or where the check of the PNC indicates that information exists. This may involve them contacting you for more information or carrying out an overseas criminal record check (this will only be required where the Home Office deem it essential).

An overseas check will not normally be done where you have five years’ continuous residence in the UK and there is no evidence of offending from the PNC.

What will the outcome of my application be?

Criminal records received before 31 December 2020

Criminal records that relate to offences committed before 31 December 2020 are considered on different criteria to criminal records for offences after this date.

Chapter VI of Directive 2004/38/EC sets out the EU public policy tests for deportation (the underlined text is the overarching test):

“Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficient serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”

For offences up to 31 December 2020, the threshold for deportation is a high one, especially for:

  1. Those who have acquired permanent residence (‘serious grounds of public policy and public security’)
  2. Those continuously resident for ten years or more (‘imperative grounds of public security’)
  3. Children (‘imperative grounds of public security’).

The assessment is based on current EU law. The question will be whether you pose a genuine, present and sufficiently serious threat. This will be assessed proportionally taking into account all facts of your situation. Your application might be refused if:

  • You have, in the last five years, received a conviction which resulted in a prison sentence.
  • You have, at any time, received a conviction which resulted in a prison sentence of 12 months or more as a result of a single offence (this this does not include consecutive sentences).
  • You have, in the last 3 years, received three or more convictions (including non-custodial sentences) unless you have lived in the UK for five years or more.

Immigration Enforcement also take into account factors such as age, health, family relationships, social and cultural integration etc.

You should only be refused settled or pre-settled status on the basis of ‘serious grounds of public policy or public security’, which is the term that is used to set out what types of cases that can lead to a refusal (this is known as the EU public policy/public security/public health test, as set out in the EEA Regulations 2016)

Criminal records received after 31 December 2020

The Government is keen to impose UK-law thresholds in relation to offences from 1 January 2021 and Appendix EU will apply a lower ‘conducive to the public good’ test to offences that occur after that date.

If you are an EU citizen eligible to apply for (or have) settled status, the tougher UK criminality thresholds will apply to offences committed after 31 December 2020.

  1. There is a presumption of automatic deportation for any offence resulting in prison sentence of 12 months or more, subject to human rights considerations
  2. For prison sentences of less than 12 months and other convictions, there is no automatic deportation but you will be deported if it is deemed “conducive to the public good”.

Convictions obtained from 1 January 2021 will be covered in more detail in an updated version of our information on deportation. The Immigration Bill continues its passage through Parliament and will provide the legal basis for ending freedom of movement on 31 December 2020. The government has said it will confirm the final details for the points-based system in late 2020 and that “a robust and consistent approach to applying the UK criminality thresholds for the refusal of entry, permission to remain in the UK, deportation and exclusion, to EU and non-EU citizens, will be taken.”

Continuous residence and prison sentences

To be granted settled status, you will usually need to have been living in the UK continuously for five years, known as ‘continuous residence’.

If you have been to prison, you will usually need at least five years’ continuous residence from the day you were released to be considered for settled status, unless you had previously had five years’ continuous residence before the prison sentence.

There are three key parts to this.

If you have lived in the UK for five years, you can rely on this to apply for settled status, unless since you completed the five years a ‘supervening event’ has occurred, which includes a deportation or removal decision.

If you have lived in the UK for five years and then served a prison sentence but have not been subject to a deportation decision, you can apply for settled status with five years’ continuous residence. Evidencing your five years’ residence is crucial in establishing a right to settled status.

If you have lived in the UK for under five years and would be in line for pre-settled status, a prison sentence of any length has the effect of resetting the clock on your continuity of residence in the UK. The period of imprisonment does not count towards residence and you start to accrue residence again from scratch upon release. This means that you might have lived in the UK for four and a half years and be sentenced to six months in prison and upon release before 31 December 2020 the four and a half years would count for nothing and your period of residence would have to restart from scratch.

  • Example 1 – Mr A has lived in the UK for 8 years. He was sentenced to 6 weeks in prison last year. Mr A has 5 years’ continuous residence to apply for settled status because he had lived in the UK for more than 5 years before his prison sentence.
  • Example 2 – Mr B has lived in the UK for 4 years. He was sentenced to 8 weeks in prison 2 years ago. Mr B has only 2 years’ continuous residence because his continuity of residence was broken by his prison sentence and only the time since his release counts towards his continuous residence. Mr B is not eligible for settled status so would be eligible for pre-settled status.

What if I’m refused?

If the decision is to deport or exclude you due to your criminal record, then your settled status application will be refused. This will mean you will have an accompanying deportation or removal order which is the decision that will need to be appealed. If the deportation order is successfully appealed, you will then be able to resubmit your settled status application.

For applications made on or after 31 January 2020, you have a right of appeal against a refusal on eligibility or suitability grounds. You have 14 days, if you are inside the UK, to appeal the decision to an independent immigration judge. If you are outside the UK, you have 28 days to appeal the decision.

For applications made before 31 January 2020 there is no right of appeal.

If the Home Office decides to issue deportation proceedings against you, or if your settled or pre-settled status is revoked as a result of a deportation decision, you will have a chance to challenge these decisions by submitting representations and lodging an appeal to the First-Tier Tribunal. This appeal must be lodged under the EEA Regulations 2016 if the deportation decision is based on criminal conduct that took place before 31/12/2020 or under the UK domestic immigration rules if the criminal conduct took place after 31/12/2020,

If your application was refused on eligibility grounds, you can make an application for an administrative review, if you think that the caseworker incorrectly applied the law in your case. Unlike an appeal, administrative review is not a reconsideration of your case. You have 28 days to make an application for an administrative review (seven days for those in detention). There is no discretion to allow late applications.

If you are currently in prison

How to apply

If you are currently in prison, you will probably need to use a paper application form given the difficulties in accessing your own identity documents and using a smart phone (which rules out using the app). Contact the Settlement Resolution Centre (0300 123 7379) to request that a paper application is sent to you. If you have problems contacting the Settlement Resolution Centre, somebody else can request a paper application on your behalf. They will be asked why you can’t apply online, which country you are from, whether you are an EEA citizen or the family member of a qualifying citizen, and whether you have ID. Unlock’s helpline can contact the Settlement Resolution Centre on your behalf to request a paper application form.

Ask the prison to provide your identity document to the Home Office when your application is sent (we understand that prison governors will make ID documents accessible).

It is possible for a third party to complete the online application on your behalf.

If you have lived in the UK for five years before you went to prison and are released from prison after 30 June 2021 and didn’t apply while in prison, you might be able to make a late application.  You would have to show that a short prison sentence over the cut-off date was a good reason for a late application. It is, however, advisable to make the application before 30 June 2021 to avoid having to argue that discretion should be exercised in accepting your application after the cut-off date.

If you have lived in the UK for less than five years, and are sent to prison before 31 December 2020 and are due to be released from 1 January 2021, if you apply for settled status you will be refused on eligibility grounds because your continuous qualifying residence cannot begin until after 31 December 2020.

Making representations

If the Home Office seek to issue a deportation decision against you, you will have the opportunity to make representations to the Home Office against making a deportation order.

These representations should cover details of your life in the UK before the prison sentence, and be focused on two parts:

  1. Showing that you have been working, in self-employment, running a business, studying etc
  2. Confirming and providing evidence of factors that Immigration Enforcement take into account (such as age, health, family relationships, social and cultural integration).

You should get specialist advice in making representations.

Arrested, charged or awaiting trial?

This is something you are asked about when you first apply.

If this applies to you, or if you are later arrested and/or charged, your application will likely be frozen while legal proceedings are still ongoing, and you will be asked to notify the Resolution Centre of the outcome. This can mean that your application will take a significant amount of time before a decision is reached.

If you are a child when you apply

Your application must be considered in line with children’s rights standards but these are not clearly explained by Home Office guidance.

Under the Immigration (European Economic Area Regulations) 2016, a child under the age of 18 cannot be deported except on ‘imperative grounds of public security’. The ‘imperative grounds of public security’ wording is also found in Article 20 of the Withdrawal Agreement and both mirror Chapter VI of Directive 2004/38 (Articles 27-33). This is an extremely high threshold.

If you apply after you turn 18 you are treated as an adult. However, if you apply before you turn 18 and subsequently turn 18, your application will be considered based on the age you were on the date of application. In general, deportation action is more likely to take place once a young person has turned 18. It is unclear whether or not the Home Office takes into account your age at the point at which an offence occurred.

Applications from your children

If your child (while under the age of 18) has lived in the UK for five years as a family member before you as an EEA parent serves a prison sentence, your child can apply for settled status without the prison sentence having an impact. However, for pre-settled status, the Home Office considers that your child’s continuous residence would be broken along with yours by the prison sentence.

Your child may have rights from their other parent, in which case your prison sentence should not affect your child’s rights.

Getting specialist immigration advice

Organisations providing immigration advice related to the EU Settlement Scheme are registered with the Office of the Immigration Services Commissioner. There are different levels of advisor. Level 1 advisors can provide initial advice and so can help with applications where convictions do not need to be declared. However, where convictions need to be declared, these applications will be referred to a higher-level provider. Level 2 advisors can provide casework, and level 3 advisors can provide advocacy and representation.

If you have unspent convictions, or you have a criminal record and have lived in the UK for less than five years, you should get specialist advice. You should get advice from an organisation that can provide advice about convictions that need to be declared (these would be level 2 and level 3 advisors)

Organisations that are known to be able to offer advice and casework support (for people making settled status applications with criminal convictions that need to be declared) include:

  • AIRE (Advice on Individual Rights in Europe) CentreThe AIRE Centre offer telephone and online support to victims of abuse and trafficking, homeless people, children in care, Roma people, individuals in atypical and vulnerable living situations and complex cases
  • Coram Children’s Legal CentreCoram Children’s Legal Centre offers support to children and young people on the EU settlement scheme and criminal convictions. This support is normally limited to email advice, but legal representation may be provided in a small number of cases where legal aid is available (e.g. separated children)
  • Here for Good LawHere for Good provides free immigration advice to EEA nationals and their family members living in the UK, through an email and telephone advice line.
  • Rights of WomenRights of Women have an EU settlement scheme advice line for women who are themselves an EU citizen (including EEA and Swiss) or are the family member of an EU citizen and need advice on their immigration status. This line is only for women who have experienced Violence Against Women and Girls (including domestic abuse, sexual violence, trafficking, modern slavery, so-called honour-based violence and FGM).

A number of organisations are being funded to provide support to vulnerable and at risk EU citizens applying to the EU Settlement Scheme.

The website eurights.uk provides information for EU citizens and their family members concerned about their EU rights, their rights after Brexit and what they need to do to stay in the UK.

You can also use the Office of the Immigration Services Commissioner (OISC) Adviser Finder to find a registered adviser near you.

Useful resources

General information on settled status

  1. Gov.uk information on the EU Settlement Scheme
  2. Citizens Advice information on staying in the UK if you’re from the EU
  3. Publications Office of the European Union – Brexit – What you need to know as an EU citizen living in the UK (available in multiple languages)

Technical resources

  1. The limited basis under which settled or pre-settled status can be restricted on ‘conduct’ grounds (including criminality) are set out in Article 20 of the Withdrawal Agreement
  2. The EU Settlement Scheme: suitability requirements sets out the relevance of a criminal record
  3. Chapter VI of Directive 2004/38/EC sets out the EU public policy tests for deportation
  4. Current EU public policy/public security/public health test, as set out in the Immigration (European Economic Area) Regulations 2016 (EEA Regulations)

About this information

This information provides general details about the EU Settlement Scheme and applying for settled status. This information does not relate to individual cases. The provision of immigration advice and services is a regulated activity and can only be performed by qualified persons i.e. those regulated by the Office of the Immigration Services Commissioner or solicitors and barristers in England and Wales regulated by the Solicitor’s Regulatory Authority (SRA) and the Bar Standards Board (BSB) respectively.

Unlock’s staff are not registered immigration advisors so we are unable to provide immigration advice. This means we are unable to provide an opinion on a course of action or a range of options a person might take based on the information the individual has provided. However, as a charity we are keen to understand the specific issues that people with criminal records are facing in relation to applying for settled status, and to make sure that the information we provide is as clear and helpful as possible, so we encourage those supporting applicants to get in touch on that basis. You can email feedback@unlock.org.uk.

About Unlock

Unlock is a national independent advocacy charity for people facing obstacles, stigma and discrimination because of their criminal record.

We have been working to help secure the rights of EU nationals to settled status in the UK by ensuring that a criminal record does not unfairly exclude them. More information about this work can be found here.

More information

  1. For practical information – We have more information on EU nationals coming to and staying in the UK as part of our information section on coming to (and staying in) the UK.
  2. To discuss this issue with others – Read and share your experiences on the “Staying the UK” section on our online forum
  3. Our policy work – Read about the policy work we’re doing on settled status.
  4. Questions – If you have any questions about this, you can contact our helpline.

Get involved

Help us to add value to this information.  You can:

  1. Comment on this page (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others in the “Staying the UK” section on our online forum
  4. Share your personal story by contributing to our online magazine, theRecord
  5. Help our policy work – we want to hear from people who have had challenges in getting settled status because of their criminal record. Find out more here

This page was last fully reviewed and updated in October 2020. If you’ve spotted something that needs updating, please let us know by emailing the details to advice@unlock.org.uk or completing a feedback form.

Please note: This information is quite new. Let us know what you think of it and how it could be improved. Leave your feedback. We will be updating it more as time goes by. To be notified of updates, sign up to our mailing list.

Telling a partner, family member or friend about your criminal record

Aim of this page

This page aims to address some of the issues people face in forming new relationships or friendships and maintaining existing ones. It also highlights some of the things to think about when disclosing your criminal record.

It is part of our information on personal relationships.

Why is this important?

Relationships are a really important part of life. Partners, family and friends give us someone to laugh with when things are good and someone to turn to in times of need. But, maintaining relationships and meeting new people can be hard, and having a criminal record can make it seem even more difficult. That’s one of the reasons why people with a criminal record can become extremely isolated which may lead to a decline in their mental health, at higher risk of drug or alcohol dependency or a return to their previous offending behaviour.

It’s important therefore not to become socially isolated and that you make the effort to stay connected with your existing friends and find ways of making new ones.

Starting a new relationship or friendship

There are many reasons why having a criminal record can make meeting new people seem daunting. Your experiences of the criminal justice system may have made you feel insecure, you might have lost your self-confidence or you may feel unworthy of a new relationship/friendship.

You’re likely to be concerned about telling new partners/friends about your criminal record and how they will react once you have told them. However, building new relationships will be vital in helping you to move on with your life.

It’s important to remember that irrespective of your criminal record, meeting a new partner or making friends gets harder as you get older. Depending on the nature of your offence and/or the sentence or disposal you received may mean that you’ll have restrictions on where you can go and who you can meet with. However, some things to consider:

  • Have a go at volunteering – Volunteering allows you to meet people who care about the same things as you do whilst gaining new skills and experience. If you’re looking for paid work, volunteering may improve your employability.
  • Go to night school – Night school classes don’t have to be boring and speaking to people whilst taking part in a pottery or Spanish class will be a lot easier than having a conversation during an aerobics lesson. Not only will you meet new people but you’ll learn new skills as well.
  • Join a gym
  • Reach out to neighbours and work colleagues

Telling your partner, family or friends about your criminal record

Telling a new partner, your family or friend about your criminal record could potentially be one of the most important discussions you’re likely to have. You may be wishing that you’d had the conversation sooner or concerned that telling them will put an end to the relationship. Despite these worries, not telling them means that you’ll always be looking over your shoulder waiting for the day when your past comes to light.

Giving some thought and preparation about how you tell them will hopefully make you feel more confident in dealing with the questions your partner/friend might have.

Consider what you’re partner/friend might want to know. This could include:

  • What happened? Be clear and concise. “I got involved in a fight with my partners ex-boyfriend. He’d been goading me for a while but on this occasion, I was the instigator. I was arrested, charged and served a short time in prison”.
  • Who else was involved in the incident? This could include others convicted with you or victims of your crime.
  • Where and when did it happen?
  • How did it happen? Think about what you did. What happened when you went to court? What sentence or disposal did you receive?
  • Why did it happen? Only include the facts and, without making excuses, think about the reasons why you committed the offence.

Keep going over the story making sure you get it clear in your own mind.

Think about the circumstances which led up to the offence (breaking up with a partner, issues with addiction, bad judgement). Go onto explain what you’ve done since then. This could be a practical change such as moving to a different area, attending a treatment programme etc or just your thoughts about the offence and what you’ve learnt from having a criminal record.

Don’t assume the worst. Consider what could go wrong and how you would respond if they did but also think about the positives that could come out of your disclosure.

Practice telling your story from beginning to end. Remember, it’s difficult to take things back once you’ve said them. If you can, practice with somebody that already knows about your conviction; not only can they give you feedback but it might help to calm your nerves.

  • Discussions of this type are usually best done in person. A self-disclosure letter to an employer might be fine but is unlikely to work so well with a partner/family/friend.
  • Make sure that you’re meeting somewhere private where you won’t be disturbed.
  • Give your partner/family/friend time to digest and consider what you’ve told them; you could try telling them on a Friday evening when they’ve got the weekend to think it over.

Talking about a conviction isn’t easy and you’ll probably have needed time to work out how you feel about the new relationship/friendship before talking about it. You might therefore need to apologise for not telling them earlier. For example “I have something to tell you, and I should have told you earlier but I was afraid that you wouldn’t want to have anything more to do with me once you knew”.

If you feel bad, show your feelings. If you feel remorse, make that clear. Don’t say something just because you think it makes you look better. Being genuine is more important than telling people what you think they want to hear.

Think about the consequences of telling them. Although you shouldn’t assume the worst, it’s good to be prepared for a bad reaction – shouting, crying, accusations or silence. Listen carefully to everything your partner/family/friend says and stay calm. If you’ve been listening, you can try to address some or all of the issues they’ve raised.

Your partner/friend is bound to have a lot of questions for you. Answer as many as you can even if you do find it painful to talk about.

Maintaining existing friendships after you’ve received a criminal record

Some friendships are easy; when you meet up it feels like you’ve never been apart, and these friendships won’t change just because you’ve been convicted of a criminal offence.

Some will however be a bit harder but, being open and honest with your friends is an important way of creating a strong support team that will be integral in helping you move on from your conviction.

Some points to consider when disclosing your conviction to your friends are:

How close you are to your friend will probably determine how much you feel comfortable telling them. This could simply be sharing the name of the offence you were convicted of, to providing details of the circumstances that led up to the conviction and the specifics of how it has impacted on your life.

Sharing such personal information can be uncomfortable so it might help to jot down your thoughts and the main points that you hope to get across. Friends may have their own thoughts on what’s important, so let them ask questions.

While you would hope that a good friend would be non-judgemental and supportive, you may find that the reality is slightly different. We’re often drawn to people who are similar to us and we want them to keep within the bounds of the image we have of them. The fact that you’ve acted out of character may challenge the image they have of you which can be frightening and cause uncertainty.

Some friendships won’t be salvageable but many will be. Acknowledge your faults and mistakes, be patient with your friend and keep your expectations realistic.

What concerns might partners, family or friends have about specific offences or your attitude towards them?

Hearing that their partner/family/friend has a criminal record might come as a shock but some offences will cause more concern than others as will your attitude towards them.

Violent offences

A violent offence can be anything from a caution for common assault after a playground fight to a significant prison sentence for GBH. A new partner is likely to be cautious about getting involved with a person convicted of a violent offence, especially if the offence was against a previous partner. If you’ve got an understanding of the circumstances or triggers that led to your conviction then talk about this and explain what, if any steps you’ve taken to ensure this doesn’t happen again, for example attending anger management courses.

Under Claire’s law a partner can ask the police to check whether you have a violent past. The police could decide to disclose information about your conviction if they felt that your partner was at risk of domestic violence from you.

Sexual offences

If you’ve been convicted of a sexual offence then it’s likely that you will have little option but to disclose (either because the police insist upon it or because of information that exists online). The thought of having the police, probation or social services involved in their lives will probably be a concern to your partner/friend especially if they have children of their own or work with them. Further information around disclosing convictions for sexual offences can be found here.

Under Sarah’s law a partner/family/friend or member of the public can apply to the police to request a disclosure (of child sexual offences) about a person who has any form of contact with a child or children.

Drug offences

Although partners and friends may be happy to overlook an offence involving possession, if it was your own addiction issues that led to your offending, then this may ring more alarm bells. An addiction to drugs or alcohol can place an enormous strain on any relationship and if appropriate, you should provide your partner/friend with some reassurance that you’ve addressed your issues with addiction.

White-collar crimes

Partners and friends may consider that anybody convicted of a white-collar crime poses little risk to their own personal safety. However, there is usually an element of dishonesty in these types of offences and demonstrating that you are an open, honest and trustworthy individual will be important.

Offences committed as a youth

Most people appreciate that adolescence can be a difficult time and for various reasons, some young people fall in with the wrong crowd or make impulsive or bad decisions. Offences committed when you’re young are often quite minor (even if there are lots of them) and friends/partners will probably find these a lot easier to forgive.

You’re in denial

If you’re telling your partner/family/friend about your criminal record, then you need to take ownership of it. People do make mistakes and learning from these is the best way of ensuring that you don’t repeat them. Not accepting responsibility for your conviction or denying it, is unlikely to be the best way to start a new relationship/friendship.

Minimising your offence or criminal record

Compared to other’s you’ve met during your criminal record journey, your offence or criminal record may seem relatively minor. However, to anybody who’s never had any dealings with the police, any conviction is likely to be a big deal. Avoid downplaying your conviction or joking about it when you disclose.

Personal experiences

The personal story below has been posted on theRecord, our online magazine:

Discuss this with others

Read and share your experiences on our online forum.

Key sections include:

More information

  1. For practical information – We have more information on relationships, children and dealing with social services
  2. To read personal stories – You can read stories about this posted on theRecord, our online magazine, under the tag disclosure
  3. To discuss this issue with others – Read and share your experiences on our online forum
  4. Questions – If you have any questions about this, you can contact our helpline.

Get involved

Help us to add value to this information. You can:

  1. Comment on this page (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum
  4. Share your personal story by contributing to our online magazine, theRecord.

 

Single Justice Procedure Notice (SJPN)

This is part of our information section of understanding your criminal record. Details of other sentences/disposals can be found here.

What is it and who is it issued by?

If you’ve been charged with a minor criminal offence, you may have your case dealt with by a Single Justice Procedure Notice (SJPN). This means that your case will be decided by a magistrate without you having to go to court. Prosecutors that can bring a case include the police, local authorities and the DVLA.

SJPN’s can be given to adults accused of minor offences that cannot result in a prison sentence, for example some driving offences, TV licence evasion and train fare evasion.

How is the process different to a normal court hearing?

You will receive a notice which may provide brief details of the evidence upon which the prosecutor will rely, together with the options available to you. Although you won’t be summoned to a specific court date, you will  be asked to respond to the notice within 21 days.

Pleading guilty

If you plead guilty to the offence, and indicate that you would like to have the matter dealt with in your absence, a single magistrate will consider the case on the basis of the evidence submitted in writing by the prosecutor and any written mitigation you have provided. The magistrate will then decide whether to convict and sentence you, or dismiss the charge.

You do have the option to have your case heard at court; you’ll need to request this when responding to the notice. If you request a court hearing you will be sent a letter with the date, time and venue.

Pleading not guilty

If you plead not guilty to the offence you will need to go to court to present your case. If you’d like to take any witnesses with you, you will need to provide details of this when you return the notice.

It is not essential to have legal representation in court and some people are happy to represent themselves. However many will prefer to either seek advice from a solicitor prior to submitting their plea or have a solicitor represent them at the hearing.

If you plead not guilty but do not attend the court your case will be heard in your absence.

If you do not respond

If you don’t respond by the due date, the court will decide your case in your absence.

The decision

If you attend the court hearing you will be given the decision there and then. If you have pleaded guilty or have been found guilty this will include details of any financial penalty.

If you’re not in court then a letter will be sent to you.

Is it recorded on the Police National Computer (PNC)?

Most SJPN’s are for non-recordable offences, meaning they are not normally recorded on the PNC. If it’s not recorded on the PNC, it will not be disclosed on criminal record checks.

However, we have been advised by HMCTS that it would be factually incorrect to say that all SJP offences are non-recordable. As a result, we do not have details on whether it is classed as a conviction, when it becomes spent, whether you have to declare it or whether it is disclosed on criminal record checks. We will update this section once we have more information.

Problems with the Single Justice Procedure Notice procedure

SJPN’s are sent via normal post (not recorded or special delivery) and you only have a limited time in which to deal with them. If, for whatever reason, you do not receive your SJPN or don’t deal with it quickly enough, you could find yourself being found guilty of an offence in your absence and without your knowledge. If you’re unaware that you’ve been found guilty of the initial charge then you may unwittingly commit another more serious offence which could carry more severe penalties.

Having received the SJPN, you are expected to enter a guilty or not guilty plea usually without seeing any of the evidence upon which the police/prosecutor seek to rely. Once you’ve entered a guilty plea, it is very difficult to retract it.

it is not uncommon for people to indicate one plea but then provide additional information on the online form which contradicts the plea. In this situation, the court will have to adjourn and ask that you attend in person.

Under SJP there is a blanket assumption that an individuals income is based on the current national average for pre-tax earnings. Unless the court receives evidence to the contrary, that income level will be used to assess the ability to pay a fine.

Applying for an anonymity order when bringing a claim against an employer

Aim of this page

This page aims to provide information on applying for an anonymity order if you’re considering bringing a claim against an employer at an employment tribunal and you would like to keep your personal details anonymous.

Why is this important?

Since 2017, employment tribunal decisions have been published online. This means that the names of anyone making a claim at a tribunal (together with the other parties involved) may show up on an internet search.

Knowing that you’ve made a claim against a previous employer could potentially give any further employers an unjustified negative opinion of you. In some cases, they may have sight of sensitive data which may not be accessible anywhere else, for example details of a spent conviction. For this reason, you may wish to try and obtain an anonymity order, so that your personal information is not available online.

How can the publication of an employment tribunal decision affect you?

We know that many employers now use the internet as a way of carrying out informal checks on potential employees. This could be to verify your employment history (matching the information you’ve provided on your CV to that which they can find online), to check whether you have a criminal record (from newspaper reports) or just to see the sort of posts you’ve added on social media. These searches will often reveal the decisions made by an employment tribunal and some employers may be put off from employing you simply because you’ve previously brought a claim.

Potential employers (and the general public) will also have access to whatever details are included in the tribunal decision. This is despite there being legislation in place elsewhere which prohibits employers from having access to some of this information. For example, the Rehabilitation of Offenders Act makes it unlawful for the majority of employers to take into account your spent convictions. However, proving that you’ve been rejected on the basis of a spent conviction can be difficult.

These details are of course not just available to employers; insurers and underwriters often do online searches and may decide not to offer you a policy if they become aware of your criminal record.

Many employment tribunal claimants are unaware that the details of their case is available online until it’s too late and those that are aware of it can be deterred from bringing a case.

If you’re concerned about a tribunal decision being made available online then it’s worth considering applying for an anonymity order.

Applying for an anonymity order

Employment tribunals have a discretionary power to make an order which prevents or restricts the public disclosure of any aspect of the tribunal. These anonymity orders are covered by Rule 50 of the Employment Tribunal rules, ‘Privacy and restrictions on disclosure’.

Rule 50(3)(b) permits for:

An order that the identity of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise …..”

In making an order, the tribunal must consider carefully the European Convention on Human Rights (ECHR), namely the right to freedom of expression and the principle of open justice. Open justice includes the naming of any person involved in the case and the ability of the press to report on proceedings held in open court. The common law and Article 6 of the ECHR protect the right to a public hearing and the right of the media to report on public hearings is protected by Article 10 of the ECHR.

It’s not easy to have an order granted and employment tribunals have become increasingly reluctant to allow any restriction on the full details of any case being held in public, including redacting the names of individuals who are not directly related to the case.

There is no set form or document that needs to be completed when applying for an anonymity order you simply need to write to the employment tribunal providing the Case Number on any correspondence.

Your application should state what form of anonymity you are requesting, for example are you looking to anonymise your name and any information that could identify you or do you want your hearing to he held in private. The employment tribunal will look to make the least restrictive form of order possible. For example, if you can be sufficiently protected by having your name redacted in any documents and on the judgement and directing attendees not to disclose your details, then the tribunal is unlikely to agree to a private hearing.

You can often increase your chances of getting an anonymity order if you do not over-request the level of protection you require.

What do you need to include in your anonymity application?

If you are able to do so, you should outline the legal basis for your application. This is likely to be based around Article 8 of the ECHR namely the right to respect for private and family life.

In seeking an anonymity order you will need to demonstrate that your right to privacy and family life under Article 8 of ECHR will be compromised and show that by not granting an order you will suffer ongoing harm or prejudice. If you wouldn’t proceed with your claim without the anonymity order then it’s worth saying that. If you’re deterred from bringing the claim, then you are effectively being denied your rights.

The tribunal will consider your argument and undertake an assessment of the public or other interest in the full publication of the claim. They will focus on your claim and the justification for restricting them.

To give your application the best chance of success:

  • Identify any infringement of your rights and, wherever possible, produce evidence to support this. Publishing information which might be embarrassing would not be sufficient reason to restrict publication.
  • Explain why it’s important to protect the disclosure of a spent conviction and the detrimental effect this would have on future employment if it were disclosed. You could highlight that this information would usually be protected by the Rehabilitation of Offenders Act 1974 and Data Protection Act 2018.
  • Apply for an order which causes the least possible restriction to the full publication (an application to redact certain details will have a better chance of success than a total publication restriction).
  • Where publication impacts the Article 8 rights of children or vulnerable individuals, tribunals will readily grant an anonymity order.

Before making an application you should notify the other party in your case and try to reach agreement that anonymisation is necessary. Although the tribunal must make a decision based on the information presented to it, agreement with the other party can sometimes sway a decision in your favour.

Do I need a solicitor to prepare my application?

Many people will be put off from making an anonymity order application because they cannot afford to instruct a solicitor and don’t qualify for legal aid. However, you can sometimes get legal advice through your household insurance policy, your trade union or legal advice centres.

What’s the cost of making an application?

There is no cost for making an application to an employment tribunal.

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

  • ACAS – An organisation devoted to preventing and resolving employment disputes.
  • GOV.UK – Government website providing further details of the employment tribunal process.

More information

  1. For practical information – More information can be found in our Employment, business and volunteering section.
  2. To discuss this issue with others – Read and share your experiences on our online forum.
  3. Questions – If you have any questions about this, you can contact our helpline.

Get involved

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  1. Comment on this page (below).
  2. Send your feedback directly to us.
  3. Discuss your views and experiences with others on our online forum.

 

 

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