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For people with criminal records
For people with criminal records

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Travelling to Australia

 

Aim of this information

This information is designed to set out the types of visa required for travel to Australia and how a criminal conviction may affect your ability to get a visa.

Why is this important?

People with criminal records are not barred from travelling to Australia. However, it’s important to know how a criminal record determines the type of visa you should apply for and whether or not you are likely to meet the good character test.

Introduction

Visas are required for all travel to Australia. British citizens can obtain the following types of electronic visitor visa:

An eVisitor

  • An eVisitor is designed for people who are outside Australia and want to visit Australia for tourism or business purposes.
  • Tourism includes holidays, recreation and seeing family and/or friends. Business purposes may include attending a conference, negotiation or exploratory business visit.
  • eVisitor applications are free, there is no application charge or service fee.
  • An eVisitor lets you stay in Australia for up to three months on each visit within a 12 month period from the date of grant.
  • An application for the visa can be made online here.

For more information, visit the Department of Immigration and Border Protection.

An Electronic Travel Authority (ETA)

An ETA Tourist Visa allows you to stay in Australia for up to 3 months on each arrival within 12 months from the date the visa was granted.

Although there is no visa application charge, a service fee of $20 applies.

An example of this is the Australian Visa Bureau but other services are available.

A Visitor Visa (Subclass 600)

A Visitor Visa gives more flexibility in the length of stays that are permitted in Australia. There is a substantial charge for this type of visa and they can often take over a month to process (see here for more details).

You may require other visas for transit through Australia to another destination or if you are visiting Australia for reasons other than a holiday.

Criminal convictions

As part of the eligibility requirements to obtain any of the above, it states that:

You must not have any criminal convictions, for which the sentence or sentences should not equal a total period of 12 months duration or more (whether served or not), at the time of travel to, and entry into, Australia.”

This implies the following:

  • If you received two 6 month sentences, you would be ineligible to apply online, and would have to apply for a full Tourist Visa.
  • If you have received a 12 month sentence, but only served, for example, 6 months, you would still have to apply for a full Tourist Visa.
  • If you have received a 12 month suspended sentence, and therefore never stepped foot in a prison, you would still have to apply for a full Tourist Visa.
  • The Australian authorities do not recognise the difference between concurrent and consecutive sentences. Therefore if you were convicted of two offences and received two six month sentences to run concurrently, the Australian authorities would consider this to equal a 12 month sentence and you would have to apply for a full Tourist Visa.

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Good character test

If you fall into the category of ‘criminal convictions’ set out above, in order to travel you must pass what the Australian government calls ‘the character requirement’ (as defined in Section 501 of the Migration Act 1958). You are likely to fail this test if you have a ‘substantial criminal record’.

A person is deemed to have a substantial criminal record if they have been:

  • sentenced to either death or life imprisonment
  • sentenced to a term of imprisonment for 12 months or more
  • sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more
  • acquitted of an offence on the grounds of either unsoundness of mind or insanity and, as a result, the person has been detained in a facility or institution.
  • they have, or have had, an association with an individual, group or organisation suspected of having been, or being, involved in criminal conduct

You are also likely to fail the good character test if there is a risk that you would:

  • engage in criminal conduct in Australia
  • harass, molest, intimidate or stalk another person
  • vilify a segment of the Australian community
  • incite discord in the Australian community or a segment of that community
  • represent a danger to the Australian community or a segment of that community by becoming involved in activities that are disruptive to or threatening harm to that community

Applying for a visa if you’ve been convicted of a sexual offence

In February 2017 amendments were made to the Australian Migration Act 1958 which will affect those who have been convicted of a sexual offence who are considering travelling to Australia.

Any new visa applications will be refused or existing visa’s cancelled if, a court in Australia or a foreign country has:

  • convicted you of one or more sexually based offences involving a child; or
  • found you guilty of such an offence, even if you were discharged without a conviction (for example you received an absolute discharge).

If an Interpol green notice is in force, then the Australian authorities will infer that you would present a risk to the Australian community and any visa application will be refused or existing visa revoked. Interpol green notices are often given to people on the Sex Offenders Register

What happens if you do not pass the good character test?

Even if you fall into the above, you will not automatically be refused a visa. Another requirement of the ‘good character test’ will look at what you have done (and how you have behaved) since being sentenced. You may want to give some thought to what evidence you could provide to show this. The Australian Department of Immigration and Border Protection will use their discretion as to whether or not to approve your application.

How will your application be decided?

When a visa applicant or visa holder does not pass the character test, immigration officials will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors, including the protection of the Australian community, the expectations of the community, the best interest of any children under 18 years of age, as well as other considerations such as the non-citizen’s links to Australia, and any relevant international law obligations.

‘I managed to get into Oz with a record (24 month sentence) even though my offence made it impossible to enter the country.  I had to bend over backwards to get all the necessary paperwork together but the point is that if you have a record there is a chance of getting in.  I’m working with explosives now – this would have been unheard of in the UK.’

What if they say no?

If your visa application is cancelled on the grounds of either a substantial criminal record, or another character issue, you are permanently excluded from Australia.

There is generally no appeals procedure if you have been refused an eVisitor or ETA. The only visitor visa that may have a right to appeal in very limited circumstances is the sponsored visitor visa.

If you have a substantial criminal record or a character issue then you should seek advice from the Migration Institute of Australia (MIA). This organisation has contacts in the UK, providing migration advice to prospective migrants, workers, students, families and humanitarian entrants and to employers seeking to obtain skilled overseas workers.

Personal experiences

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

Dealing with my barriers and borders – a story from Carlotta, one of Unlock’s trustees who has recently travelled to Australia

Discuss this with others

Read and share your experiences on our online forum.

Key sections include:

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

For more information

  1. For practical information – More information on character and police certificate requirements can be found on the Australian Government Department of Immigration and Border Protection website
  2. To read personal stories – You can read stories about this posted on theRecord, our online magazine under the tag travelling abroad
  3. To discuss this issue with others – Read and share your experience on our online forum
  4. Questions – If you have any questions about this, you can contact our helpline

Get involved

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

Cannabis Warning

This is for information only.  We are unable to provide advice on this.

 

Who is it issued by and how can I contact them?

Cannabis warnings are issued by the Police – contact the administering force.

Does it involve guilt?

Yes – you have to make a clear and reliable admission.

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

Yes. A facility is available on the PNC which allows an entry to be recorded which does not constitute a ‘criminal record’ but is accessible for police use.

Is it classed as a conviction?

No, but it is kept on the PNC and can be taken into consideration by the Police is you are found to be in possession of cannabis at any time in the future.

How long will it be on my record?

Although a Cannabis Warning does not result in a criminal record, the information can still be used if further offences are committed.

When does it become spent?

It isn’t a caution or conviction, so isn’t formally covered by the Rehabilitation of Offenders Act 1974.

When do I have to declare it?

You very rarely get asked about Cannabis Warnings, so you don’t have to declare it.

However, it is not covered by the Rehabilitation of Offenders Act and so, when asked, it must be disclosed. It is rare for employers to ask about Cannabis Warnings.

Is it disclosed on DBS checks?

Not on a standard check.

It might be disclosed as part of an enhanced check in the ‘other relevant information’ section, i.e. if the offence has a bearing on the kind of work you are applying for. However, in our experience it is rare for cannabis warnings to be disclosed in the ‘other relevant information’ section.

What if I get asked “have you got any convictions, cautions, warnings and reprimands”?

It is likely that the question is relating to ‘warnings’ that were given to under 18’s, as the equivalent to a caution. These are now referred to as ‘youth cautions’ .

Do I have the right to appeal and what is the process?

There is no formal process for rescinding a Cannabis Warning once it has been administered. If you wish to complain about the decision or how the case was handled, you need to make a complaint to the Chief Constable or Commissioner of the administering force.

Each police force should be willing to receive requests for Cannabis Warnings to be ‘expunged’ as part of their ownership as Data Controllers of the PNC. However, this is only done in exceptional circumstances, particularly where a significant amount of time has passed since receiving the warning. If you did decide to try and have the warning expunged, then there is a risk that your earlier admission of guilt could be used as evidence if they decided to proceed with charge in lieu.

Other information

In dealing with an offence of cannabis possession, a police officer will have three options open to them; arrest, PND or Cannabis Warning

The options are listed in order of escalation that would be expected taking into account many aggravating factors.

Cannabis Warnings form part of an intervention framework which was developed to assist officers in deciding on a justifiable and proportionate response to dealing with people found to be in possession of cannabis for personal use.

The framework will be considered when an individual meets all the conditions below:-

  • An adult, aged 18 years or over
  • Non vulnerable
  • Capable of understanding the significance of questions put to them or their replies
  • Not suspected of being under the influence of drink or drugs at the time the warning is to be issued
  • In possession of a small amount of cannabis, consistent with personal use
  • Personal details have been satisfactorily verified
  • They admit the offence

The general principle of a Cannabis Warning is that no more than one warning should be issued and the following should apply:-

  • No previous record of a Cannabis Warning
  • No previous record of a PND being issued
  • No previous convictions
  • Not known to the officer ‘locally’ as a persistent offender
  • No ‘aggravating’ circumstances
  • Compliant with procedure

Useful links

There’s a useful link to ACPO guidance on cannabis possession for personal use , which includes information about Cannabis Warnings.

 

 

Becoming a childminder

Aim of this page

The focus of this information is in registering to become a childminder with a criminal record.

Why is this important?

For anybody thinking about becoming a childminder, you will need an enhanced Disclosure and Barring Service check in order to register with Ofsted. This will be used to assist Ofsted in making a decision as to whether you should be allowed to practice as a childminder.

Although Ofsted give little guidance on how they deal with criminal records, in general they will treat each case on its own merits. It’s important however to know what may disqualify you from becoming a childminder. On the Ofsted website, there is guidance on registration to the Childcare register.

Do you need to register to be a childminder?

You’ll need to register with Ofsted if you’re a childminder and paid to look after children under the age of 8 for more than 2 days in your home.

You don’t need to register if you:

  • Look after children aged 8 or over
  • Look after children of any age for under 2 hours a day
  • Are the child’s parent or relative
  • Are babysitting children between 6pm and 2am
  • Look after children in their own home (this means you are a nanny).

Further information about registration exemptions can be found here.

Why you might want to register even if you don’t need to

Even if there’s no legal requirement for you to do so, there may be some advantage to registering.

  • You may be able to get a childcare business grant to help you set up your business if you apply within 3 months of registering.
  • Registration means that parents can apply for help with childcare costs. This can make it easier for you to find work.

Registration

Prior to applying for registration you will need to:

  1. Apply for your enhanced DBS check. Anyone over 16 who lives with you will also need a check.
  2. Complete a health declaration form and get it signed by your GP. Your GP may charge you for this.
  3. Complete a first aid qualification.
  4. Find out if you need any further training.

Are you disqualified from registering as a childminder?

Some people are disqualified from registering as a childminder with Ofsted. This is either because they, or somebody they live with has been:

  • Convicted of a relevant offence against a child
  • Convicted of certain offences against an adult; for example murder, kidnapping, rape, indecent assault or assault causing actual bodily harm
  • Included on the list of those who are barred from working with children.

If you are disqualified as a result of your own criminal record or the criminal record of somebody that lives or works in your household (referred to as ‘disqualification by association’) you will need to apply for a waiver from Ofsted before you can work as a childminder.

Will you be able to register if you have a criminal record?

When coming to a decision about your suitability, Ofsted will consider some of the following:

  • The seriousness of the offence
  • The accuracy of your self-disclosure on the application form compared with the information provided on your enhanced DBS check – if you’re unsure of the details of your conviction, make sure you apply for a copy of your police records (referred to as a subject access request) prior to completing the application form
  • The age you were at the time of the offence
  • The amount of time that has elapsed since the offence
  • The relevance of the offence.

If, after reviewing your application and carrying out an interview and inspection of your home, your application is successful, Ofsted will issue you with a registration certificate.

Should Ofsted decide to refuse your registration, a ‘notice of intention to refuse’ will be sent to you. If no response or objection is received within 14 days of the notice, a ‘notice of decision to refuse registration’ will be sent, together with information on how to appeal.

Discuss this with other

Read and share your experiences on our online forum.

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.

  • Ofsted – The Office for Standards in Education, Children’s Services and Skills inspect and regulate services that care for children and young people
  • Childminding UK – A registered charity offering professional support to all Ofsted registered childminders.

More information

  1. To discuss this issue with others – Read and share your experiences on our online forum
  2. 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

 

Travelling to Canada

Aim of this information

This information forms part of our travel section and focuses specifically on those people travelling to Canada for 90 days or less for leisure purposes who have a criminal record. It sets out the various processes that the Canadian authorities have in place and helps you identify which programme you should follow to travel to Canada.

Why is this important?

Changes to the visa exempt travel process means that those travelling to Canada will be asked for details of their criminal record at the time they apply for their Electronic Travel Authorisation (eTA). It’s important that you know if you will be eligible to travel under the eTA and what you will need to do if you’re not eligible.

Introduction

As of the 15th March 2016, British Citizens visiting or transiting Canada by air will require an Electronic Travel Authorisation. Exceptions include US Citizens and travellers with a valid Canadian visa.

If you travel by land or sea, you won’t need an eTA when entering Canada but you’ll still be required to present acceptable travel documents and identification. For a list of these, see here.

The Electronic Travel Authorisation (eTA)

You can apply online for your eTA, it should only take a few minutes to complete. You will be asked to provide details of your passport, your email address and your credit card details. In most cases, your eTA will be approved within minutes of applying.

The question on the eTA around criminal records is as follows:-

Have you ever committed, been arrested for, been charged with or convicted of any criminal offence in any country?

Select ‘Yes’ if you have ever committed, been charged with or convicted of a crime in any country. Please provide as many details as possible. Failure to include additional and sufficient details may result in slower processing.

If the above statement applies to you, then you’ll need to answer ‘Yes’ (even if your conviction is spent). However, on receipt of your application, the Canadian Embassy will process your eTA using the Rehabilitation of Offenders Act 1974 as a basis for deciding whether you would be ‘deemed rehabilitated’. If this is the case, then you will be issued with an eTA.

If the eTA is declined, you will need to apply for a visa.

It’s important to note that the eTA follows the concept of ‘deemed rehabilitation’ as outlined below but does not take into account changes to the Rehabilitation of Offenders Act which came into effect in March 2014 and still relies on the 1974 Act.

If you’re unsure of the details of your criminal record, then you should get a copy of your Subject Access Request so that you’re very clear about what you need to disclose.

What should I do if my eTA is refused?

If you are refused an eTA because you have committed or been convicted of a criminal offence, you will need to apply for criminal rehabilitation under Canada’s Immigration and Refugee Protection Act.

Under this Act, if you have committed or been convicted of a crime, you will have to apply for a Visa. As a result, in their words, you may be “criminally inadmissible”. Criminal offences include both minor and serious offences, such as theft, assault, manslaughter, dangerous driving and driving whilst under the influence of drugs or alcohol. For a complete list of criminal offences in Canada see the Canadian Criminal Code and the Controlled Drugs and Substances Act.

Depending on what crime you committed, how long ago it was and your behaviour since, you may be admissible to Canada.

Your options

You may be allowed to go to Canada if:

  • you are able to satisfy an immigration officer that you meet the legal requirement to be deemed rehabilitated or
  • you apply for rehabilitation and are approved or
  • you are granted a record suspension (formerly known as a pardon) or
  • you get a temporary resident permit.

Deemed rehabilitation

Deemed rehabilitation, under Canada’s immigration law, means that enough time has passed since you were convicted that your crime may no longer bar you from entering Canada.

You may be deemed rehabilitated depending on:

  • the crime you committed
  • how serious the crime was
  • how much time has passed since you completed the sentence (10 years for one indictable offence, 5 years for two or more summary convictions)
  • whether you have committed more than one crime

In all cases, you may only be deemed rehabilitated if the crime would be punishable in Canada by a maximum prison term of less than 10 years.

Also, in accordance with a Canadian decision, Burgon (case dated 21st February 1991 in the Federal Court of Appeal in Canada), criminal convictions obtained in the UK are generally assessed under the Rehabilitation of Offenders Act 1974 instead of under the Immigration & Refugee Protection Act. As a result, once your criminal record becomes spent under the 1974 Act, you cease to be inadmissible to Canada and are regarded as ‘deemed rehabilitated’.

It should be noted however that there are exceptions to the above. We’ve recently had sight of a letter from the High Commission of Canada to an individual who was refused entry to Canada, despite his conviction being spent under the Rehabilitation of Offenders Act which stated:

The Saini decision [Saini v MEI 151 NR 239 CRCA] allows discretion to  a visa officer (or port of entry officer) not to give effect to the Rehabilitation of Offenders Act of the UK when looking at all the facts of a case.

In addition, based on the Saini decision, a visa officer needs to be satisfied that a pardon under a foreign jurisdiction is similar to one in Canada. For some offences, it is not possible to apply for a pardon under the Criminal Records Act in Canada and therefore in some instances the ROA will not be applied to a particular situation.

You do not have to apply to be deemed rehabilitated, but you should be sure you will qualify before you try to enter the country.

You are able to get assessed by the Canadian embassy, to ensure that you are not refused entry or subject to other enforcement action. To be assessed, fill out an application for Rehabilitation, but in Section A, check the box “for information only”. You will not have to pay a processing fee. An officer will review the form and tell you what to do next. More information on this process is available here.

There is a useful video below which sets out the status of ‘Criminal rehabilitation’

Individual rehabilitation

‘Rehabilitation’ in this context means that they feel you are not likely to commit new crimes. If you are not eligible to be ‘deemed rehabilitated’ you must apply for individual rehabilitation to enter Canada.

To apply for individual rehabilitation , you must:

  • show that you meet the criteria
  • have been rehabilitated, and
  • be highly unlikely to take part in further crimes

Also, at least five years must have passed since:

  • the end of your sentence (including probation), and
  • the day you committed the act that made you inadmissible

You must apply to the Canadian visa office and pay a processing fee. Note: Applications for rehabilitation can take over a year to process, so make sure you plan far enough in advance.

Record suspension

If you have been convicted in Canada and wish to apply for a record suspension, check with the Parole Board or Canada. If you get a Canadian record suspension, you will no longer be inadmissible.

If you received a pardon or a discharge for your conviction in a country other than Canada, check with the visa office closest to you to find out if the pardon is considered valid in Canada. This will help ensure you do not travel to Canada only to be refused entry or subject to other enforcement action.

In the UK, once a conviction is spent, you become ‘deemed rehabilitated’ under the Canadian process (see above).

Temporary resident permit

A temporary resident permit lets you enter or stay in Canada if:

  • it has been less than five years since the end of your sentence, or
  • you have valid reasons to be in Canada

You can apply online. The current cost is £125. Visit the Canadian Embassy website for the UK for more information.

If you have a valid reason to travel, but you are inadmissible, they may still issue a temporary resident permit. Even if the reason you are inadmissible seems minor, you must show that your visit is valid.

More information about temporary resident permits is available on the Citizenship and Immigration Canada website.

Other information

An article about travel restrictions based on a criminal record can be found on the Collateral Consequences Resource Center website.  Although this is written with an American audience in mind, the information is still relevant to travellers from the UK.

Personal experiences

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

My world’s just got bigger – disclosing my conviction to a new partner and travelling to Canada

Having my wings clipped by an old conviction – how my criminal record stopped me travelling with my family

Discuss this with others

Read and share your experiences on our online forum.

Key sections include:

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.

For more information

  1. Practical self-help information – More information on travelling abroad with a criminal record here.
  2. Discuss the issue – Read and share your experiences on our online forum.

Get involved

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

 

Community order

This is part of our information section on understanding your criminal record.

 

Who is it issued by and how can I contact them?

Issued by the court – contact the relevant court.

Does it involve guilt?

Yes.

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

Yes.

Is it classed as a conviction?

Yes.

How long will it be on my record?

It will remain on the PNC indefinitely and can still be mentioned in future criminal proceedings even after it has become spent.

When does it become spent?

At the end of the order.

When do I have to declare it?

You do not have to declare it after it is spent except for an occupation exempt from the Rehabilitation of Offenders Act, like working with children. Before it is spent you do need to declare it, when asked, to employers, insurers and others.

Is it disclosed on DBS checks?

Yes, it be disclosed on both standard and enhanced checks unless it is eligible for filtering. Once it becomes spent, it won’t be disclosed on a basic check.

What guidance is there on fair process?

The Sentencing Council provide guidelines on community sentences to try and ensure uniformity in sentencing.

Do I have the right to appeal and what is the process?

All appeals about the handling of your case by Probation, should be made to the relevant National Probation Service office. If you are still not satisfied your complaint has been dealt with, contact the Prisons and Probation Ombudsman who have a legal responsibility to investigate all complaints.

What are the implications for life in the community?

A community sentence is managed by the probation service and can involve a range of requirements and programmes. Breaking the terms of your order can result in a return to court or prison.

What can it include?

Community orders, sometimes referred to as community sentences, allow judges or magistrates to tailor a sentence. The sentence is served in the community under the supervision of a Probation Trust and should be considered a punishment, in that it may restrict your movements and activity, as well as encouraging attendence at activities or treatment-based interventions that are rehabilitative in nature.

Sentencers can impose several different conditions, or ‘requirements’ on the order. There are a total of twelve different requirements although an offender would not have all the requirements attached to their order. Less serious offences would generally carry only one or two whereas a more serious offence may have three or more elements to the order.

The requirements are as follows:

Supervision – by a Probation Trust. This is where you’ll have to attend regular meetings with a probation officer who will undertake work with you to change attitudes and behaviour.

Unpaid Work/Community Payback – up to a maximum of 300 hours set work performed for the benefit of the community.

Curfew –where you can be ordered to stay within the confines of your home during certain hours of the day for up to six months. The curfew can be for up to 12 hours within a 24 hour period. Curfews are usually electronically monitored.

Accredited Programmes – designed to address behavioural issues such as general offending, violence, sex offending, drug or alcohol abuse, domestic violence and drink impaired driving. May be group based or one-to-one.

Specified Activities – for example improving basic skills, or undertaking reparative work.

Prohibition – from undertaking certain activities. For example attending football matches, public houses or shopping centres.

Exclusion – where you can be excluded from entering certain areas for up to two years.

Residence – where you have to live at a certain address for example approved premises such as a hostel or a private address.

Mental Health Treatment – this can only be imposed with your consent and is done under the direction of a doctor or psychologist.

Drug Rehabilitation – this includes testing and treatment and can also only be imposed with your consent. This is designed to reduce or eliminate your dependency on drugs.

Attendance Centre – where you (up to the age of 25) are required to attend a particular centre at a certain time for between 12 – 36 hours during your sentence.

Alcohol Treatment – this can only be imposed with your consent and lasts up to three years. This is designed to reduce or eliminate your dependency on alcohol.

These requirements are also available to the courts when a suspended sentence is imposed.

Local councillor

This is a short information page about becoming a local councillor. The aim of this page is to provide further clarification around eligibility, especially if you have been sentenced to a custodial sentence.

It forms part of our information section on looking for (and keeping) employment and volunteering.

Could you be a councillor?

You can be a councillor as long as you are:

  • British or a citizen of the Commonwealth or EU
  • At least 18 years old
  • Registered to vote in the area or have lived, worked or owned property there for at least 12 months before an election.

You can’t be a councillor if you:

  • Have been sentenced to prison for 3 months or more (including suspended sentences) during the last five years
  • Have been convicted of a corrupt or illegal practice by an election court.

If you are already a local councillor and receive a three month custodial sentence or more (including suspended sentences) you will automatically lose your seat.

If you’re looking to stand in an election to become a local councillor, the Local Government Act 1972 (section 80) states that if you have been convicted and received a prison sentence (or suspended sentence) of three months or more in the five years before the election, you are unable to stand in the election.

This ‘5 year rule’ applies even if the prison (or suspended) sentence becomes spent. This is because of section 7 (1)(d) of the Rehabilitation of Offenders Act 1974.

For example, in May 2015, you wish to stand for election as a local councillor. In January 2012, you were sentenced as an adult to a prison sentence of 4 months. Under the Rehabilitation of Offenders Act 1974, this conviction becomes spent 2 years after the end of the sentence, so May 2014. However, because you have been given a sentence of more than 3 months within the previous 5 years to the election, you are disqualified for that election.

However, the disqualification criteria doesn’t apply to non-prison criminal convictions, nor does it apply after 5 years has passed since the conviction, even if the conviction remains unspent.

Detailed information on becoming a councillor is available at www.beacouncillor.org.uk.

More information

  1. For practical information – More information on becoming a Member of Parliament
  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.

 

The ‘google effect’, internet search results and the right to be forgotten

Aim of this page

In May 2014, the Court of Justice of the European Union ruled that individuals should be able to request the deletion or removal of personal data published online where there is no compelling reason for it to remain. This right to erasure is often referred to as ‘the right to be forgotten’.

This page sets out how to request the removal of online information and how you can appeal the decision if an online search engine refuses your request.

Why is this important?

Once your conviction is spent under the Rehabilitation of Offenders Act, there is no legal obligation for you to disclose it when applying for the majority of jobs. However, information on the internet can stay around, long after a conviction becomes spent.

We’re aware that some employers will do ‘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 out more about you than they are legally entitled to know.

If you’re aware of any links to your name on the internet and your conviction is spent, it’s definitely worth applying to have the links removed. If your application is successful, then you can be confident that any future employer or work colleague who searches for your name on the internet, won’t be able to find any information relating to your criminal record.

Introduction

In May 2014, Google launched a system whereby individuals can request information about them be removed from Google’s search results. This came about because of a ruling on the 13th May by the Court of Justice of the European Union. The case was brought by a Spanish man who complained that an auction notice of his repossessed home on Google’s search results infringed his privacy. The court found in his favour, which has already had wide-reaching consequences for search engines like Google.

The ruling only covers the removing of the search results – the information will still exist on the website that published the original article but Google won’t be able to deliver matches to some enquiries that are entered. Deletion of the original information would still be the responsibility of the website owner, and in our experience, it’s very rare that websites agree to remove details relating to convictions (see more in reporting of criminal records in the media).

Information will only disappear from searches made in Europe. Queries piped through its sites outside the EU will still show the relevant search results.

However, many people are still seeing the ruling as a potential way of dealing with the ‘google effect’ that often haunts people for lots of different reasons, and our Helpline and Forum have already seen this being raised by quite a few people when it comes to past convictions that have been reported online. So the important question for us is whether it will actually help people with convictions?

Does it help people with convictions?

Under the ‘Right to be Forgotten’ anyone in the UK and EU can make a request to Google (and other search engines) to have information about themselves removed. For the first time, this ruling and the Right to Erasure provides individuals with a legal mechanism through which news articles, images, videos and other digital content can be removed.

In 2022, Google delisted approximately 56% of the “right to be forgotten” requests it received. The percentage of successful requests varied depending on the type of information concerned:

  • Criminal record information – 61% of requests were delisted.
  • Professional wrongdoing and other professional information – less than half of requests were delisted.

The Independent Press Standards Organisation (IPSO) in their “Court reporting: What to expect – Information for the public guidance”, have also made reference to the removal of links stating:

“If your convictions have been ‘spent’, you may have legal rights to have links to articles about these convictions to be removed from search engines. If you make a formal request to an internet search engine directly, they may remove these articles from search results.”

Google’s system

Google state that they always comply with their legal requirement to remove pages from Google search results and encourage individuals and authorities to contact them if they believe the continued publication of information violates the law.

Google summarises it’s approach as follows:

 

“We will balance the privacy rights of the individual concerned with the interest of the general public in having access to the information, as well as the right of others to distribute the information. For example, we may decline to remove certain information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials”.

 

From our point of view, we strongly believe that once a conviction is spent, this should be removed from the internet (on request). Otherwise, protections that are afforded under the Rehabilitation of Offenders Act are undermined.

It’s highly unlikely that Google will be willing to remove search results that relate to unspent criminal convictions.

The Information Commissioner’s Office view

Back in 2014, the ICO looked at what the ruling meant for people in the UK.  In a blog post, a particular point they made was that;

“It is also important to remember that the exemption for journalism, art and literature under Schedule 2, part 5 (26) of the Data Protection Act 2018 can be applied by media organisations, bloggers and other publishers of information, depending on the circumstances. What this is not, then, is a full or absolute ‘right to be forgotten’.”

This casts doubt over to what extent Google (and others) will remove details such as convictions, where media organisations have claimed a legitimate exemption of the basis of journalism.

The Article 29 Working Party (which the ICO is part of) Guidelines on the implementation of the Courts judgement, gives a good indication as to how the ICO will treat complaints that it deals with. The ICO has also published their search result delisting criteria.

Making an application to Google

As part of Google’s current system, you have to do a couple of things.

Firstly, you have to provide the URL links for each link appearing in a Google search.

Secondly, and perhaps most importantly, you have to explain why the search result is “irrelevant, outdated, or otherwise inappropriate”. At the moment, the clearest argument is that your convictions are spent under the Rehabilitation of Offenders Act 1974, and so in most cases, you can treat it as if it had never happened. You should look to put forward any other reasons why you think it meets the definition of “irrelevant, outdated or inappropriate”. Until we begin to see examples of what’s worked and what hasn’t, it’s difficult to give much more guidance at this stage. The ‘representation box’ only allows you to use 1000 characters so you’ll need to keep your argument short and succinct.

Thirdly, you have to provide proof of your identity. Some people have expressed concern to us about this last point. However, we have no reason to think that this should put people off – ultimately, if your information is already available online, this application process cannot make things worse!

We have devised a search engine removal request template which can be used as a guide to completing the online form.

If you’re interested in making an application to Google, the online form is available here.

Reporting a concern to the Information Commissioner’s Office

Once you have a decision from Google, if they refuse your application, we would advise people to make a complaint to the Information Commissioner’s Office.

You can report your concern to the ICO online

What will the ICO do?

If you decide to make a complaint to the ICO regarding Google’s refusal to remove a link then, the ICO will consider your request based on a set of criteria. If they believe that any links should be removed they will contact Google and ask them to de-list the information. Google will either agree with the ICO removing the link or refuse and refer back to the ICO.

If Google inform the ICO that they are refusing to remove a link after a request is made, the ICO will review the matter under their case review process with the involvement of senior colleagues, taking into account all of the circumstances of the case and arguments presented by all parties in order to decide whether the original decision was correct.

Where the ICO agrees with Google and decides that the link does not have to be removed from their search engine, you can still make an application to the court under section 167 of the Data Protection Act 2018, seeking an order that the court is satisfied there has been an infringement of your rights under the data protection legislation. The court would reach its own view as to whether they are satisfied there has been an infringement of your rights under the act. If you pursue this option you may wish to seek independent legal advice.

Having reviewed the overall circumstances of the case, we have concluded that it is appropriate to amend our assessment and we consider the search results likely to comply with the Data Protection Act. Therefore the ICO will not be requiring Google to delist the search results.

Although we recognise that the conviction is now deemed ‘spent’ for the purposes of the Rehabilitation of Offenders Act, and we take this into account, we must also consider the public interest in the availability of information about criminal convictions. Our published criteria explain that we are less likely to require the delisting of information about serious offences, and we consider sex offences involving minors to fall into this category.

While a number of years have passed since the conviction, we consider there to be a significant degree of public interest in the availability of information about convictions of this nature and on balance we consider this to mean the information in the search results remains relevant. In reaching this view, we also take account of the fact that you held a position of trust at the time the offences took place.

We recognise that the availability of the search results may be detrimental to you, but the right to have search results delisted is not absolute and does not necessarily entitle individuals to have negative information about them removed. When reaching decisions we must also take into consideration the relevance of the information to the public interest, which in this case we consider to be significant for the reasons I have explained. We have concluded that the original decision provided to you did not adequately take account of these factors.

Whilst the above refers to a sex offence, this does not mean you cannot apply to have your link removed if you have a spent conviction for a sex offence. You need to be aware that under ‘public interest’ a decision could be made that will result in your application to have your link removed declined.

Other ways of dealing with the Google effect

This problem isn’t new, and regardless of this new system, many people with convictions will continue to experience difficulties because of their convictions being reported online.

One option that some people look at is changing their name. Although this doesn’t get you away from your criminal record (because if an employer does a criminal record check, depending on whether your convictions are spent, and depending on the level of check, it will still come back) it does prevent people from getting access to information that they would otherwise not be allowed to (e.g. spent convictions if the job is covered by the ROA).

Another option that some people look at is trying to flood the internet with alternative, positive, stories about them, to ‘force down’ the reports that relate to their convictions.

Online reputation repair companies

There are many companies offering services to repair your online profile by replacing negative search results with positive coverage. Some of these can be very expensive, often tying you in to long term contracts and only doing what you can do yourself.

Details of a couple of organisations we would recommend can be found in the useful links section below.

Personal experiences

The personal stories below have been posted on our website.

Success with dealing with the ‘google-effect’ – Sam explains how her life has been turned around since Google agreed to remove links to her name

I got the link to my sexual offence conviction removed from a search engine

Discuss this with others

Read and share your experiences on our online forum.

Key sections include:

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.

  • Information Commissioners Office – The ICO are an independent authority set up to uphold individuals’ information rights.
  • Mycleanslate – If you have a spent conviction, Mycleanslate may be able to act on your behalf by making a request to search engines such as Google, Yahoo and bing to have links to your name removed. They currently charge a flat fee of £295.
  • Internet Erasure – Offer a free consultation to assess your eligibility for removal and will then outline their predicted timescales and costs.
  • The Internet Law Centre – Law firm specialising in internet and social law.

More information

  1. For practical information – More information on changing your name and counteracting negative ‘Google’ or other internet search information
  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.

This page was last fully reviewed and updated in October 2024. If you’ve spotted something that needs updating, please let us know by emailing the details to advice@unlock.org.uk

 

Travelling within the EU

Currently, if you are an EU citizen you may travel anywhere you wish within the EU without hindrance or restrictions. However, you will need a valid passport up until the day that you return in the UK. This is likely to change once we leave the EU when it will be necessary for EU citizens to get approval to travel via the European Travel Information and Authorisation System. Further information can be found here.

The Schengen Agreement signed on the 14 June 1985 is a treaty that led to most of the European countries abolishing their national borders to form the ‘Schengen Area’. You can use the Schengen visa eligibility checker to find out if you need a visa when travelling from the UK to any Schengen member state.

Community Resolution Order

This is for information only.  We are unable to provide advice on this.

 

Who is it issued by and how can I contact them?

Issued by the police – contact the administering force.

Does it involve guilt?

Yes – you have to make a clear and reliable admission.

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

Yes (if it relates to a recordable offence).  A facility is available on the PNC which allows an entry to be recorded which does not constitute a ‘criminal record’ but is accessible for police information.

Is it classed as a conviction?

No.

How long will it be on my record?

Although a community resolution order does not result in a criminal record, the information can still be used and taken into consideration if further offences are committed.

When does it become spent?

N/A

When do I have to declare it?

It isn’t a caution or a conviction, so isn’t formally covered by the Rehabilitation of Offenders Act 1974.

Is it disclosed on DBS checks?

Not on a standard check.

It might be disclosed as part of an enhanced check in the ‘relevant information’ section, i.e. the offence has a bearing on the kind of work you are applying for.  However, in our experience it is rare for community resolution orders to be disclosed in the ‘other relevant information’ section.

Do I have the right to appeal and what is the process?

There is no formal process for rescinding a community resolution order once it has been administered.  If you wish to complain about the decision or how the case was handled you need to make a complaint to the Chief Constable or Commissioner of the administering force.

Each police force should be willing to receive requests for community resolution orders to be ‘expunged’ as part of their ownership as Data Controllers of the PNC.  However, this is only done in exceptional circumstances, particularly where a significant amount of time has passed since receiving the community resolution order.

Other information

A ‘community resolution’ resolves a minor offence or anti-social behaviour incident through informal agreement between the parties involved, as opposed to progression through the traditional criminal justice process.

It is primarily aimed at first time offenders where:-

  • there has been an admission of guilt
  • the victims views have been taken into account

Community resolution allows police officers to make decisions about how to deal more proportionately with low-level crime.

Conditional caution

This is part of our information section on understanding your criminal record.

Who is it issued by and how can I contact them?

Conditional cautions can only be authorised by the CPS who then grant authority to the police to issue – contact the administering force.

Does it involve guilt?

Yes – you are asked to sign a document confirming your admission to the offence as well as details of the offence, informed consent and the conditions of the caution.

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

Yes (especially if it relates to a recordable offence).

Is it classed as a conviction?

No.

How long will it be on my record?

Information is retained on the Police National Computer even after it has become spent. In effect the conditional caution is a suspension of prosecution but if conditions are not complied with a prosecution may well go ahead. Also spent cautions can be used in future criminal proceedings as evidence of character.

When does it become spent?

Three months from the date of issue (or when it ceases to have effect, if earlier).

When do I have to declare it?

Conditional cautions now fall under the protection of the Rehabilitation of Offenders Act so you don’t have to disclose unless it is for an occupation which is an exception to the Act, like working with children.

Is it disclosed on DBS checks?

Yes, it is disclosed by both the standard and enhanced checks, unless it is eligible for filtering. It will not be disclosed on a basic check.

We’ve become aware of anomalies in the way the police record conditional cautions on the Police National Computer (they’re recorded as a conviction until the conditions have been satisfied). This means that conditional cautions which would be eligible for filtering still appear on standard and enhanced DBS certificates. The DBS will usually amend the certificate if you raise a query with them. Find further information here.

What guidance is there on fair process?

Do I have the right to appeal and what is the process?

By signing the document which gives your informed consent, you are accepting the caution and so there is no formal appeal route. If you wish to complain about the decision or how the case was handled you need to make a complaint to the Chief Constable or Commissioner of the administering force.

What are the implications for life in the community?

Conditions attached can be reparative, rehabilitative or (in rare cases) punitive – see CPS guidance. It is not a criminal conviction but it does form part of a criminal record so you will sometimes have to disclose when asked by employers, particularly before it is spent. It will not affect your chances of getting a mortgage. You do not need to disclose it to insurers once it’s spent.

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