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For people with criminal records
For people with criminal records

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EU nationals coming to and staying in the UK

We are unable to give immigration advice as under UK immigration law, organisations can only provide this is they are registered with the Office of the Immigration Services Commissioner (OISC). Details of specialist immigration organisations can be found on our important links and organisations page.

 

Aim of this page

The aim of this page is to:

  1. provide details about the free movement of EU nationals to the UK
  2. set out some of the reasons why EU nationals may be refused entry to the UK
  3. look at the changes which will take place in the lead up to (and after the) UK leaves the EU, with a particular focus on those EU nationals currently living in the UK

Given the changing nature of the arrangements that will apply after the UK leaves the EU, we will try to keep this information up to date but we appreciate feedback and any suggestions of how it can be improved – email feedback@unlock.org.uk

Why is this important?

Many people assume that providing you’re not on any type of ‘wanted list’ then a criminal record will not stop EU nationals from entering the UK.

However, although a criminal record alone is not the only thing that can stop somebody being permitted entry, the Home Office states that refusal may be given if an individual constitutes ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Therefore, if you’re planning to visit the UK, it’s important to understand the reasons why you may be refused entry.

It’s also important that EU nationals currently living in the UK understand what might happen as the UK leaves the EU, in terms of whether their criminal record might prevent them from staying.

Background

The Free Movement Directive 2004/38EC which came into force in April 2004 provided for citizens of the EU and their family members to:

  • Look for a job in another EU country
  • Work there without needing a work permit
  • Reside there for that purpose
  • Stay there even after employment has finished
  • Enjoy equal treatment with nationals in access to employment, working conditions and all other social and tax advantages.

The directive stated that member states could take measures to restrict the freedom of movement and residence of EU nationals and their family members if they felt there could be grounds of public policy, public security or public health.

On 1 February 2017, the EEA Regulations 2016 were introduced which allowed member states to determine their own requirements of public policy and public security as well as making other substantive changes in respect of public policy and public security decisions.

UK residence documents for EU citizens

Residence card

You don’t need a residence card to confirm you can live in the UK unless you’re:

  1. from outside the European Economic Area (EEA) or Switzerland
  2. an extended family member of someone from the EEA or Switzerland

However, a card can:

  • help you re-enter the country more quickly and easily if you travel abroad
  • show employers you’re allowed to work in the UK
  • help to prove you qualify for certain benefits.

A residents card costs £65 and lasts for five years.

The application form asks that you must disclose details of all criminal convictions.

In accordance with Section 56A of the UK Borders Act 2007 you are required to disclose all spent or unspent convictions. This includes road traffic offences but not fixed penalty notices (such as speeding or parking tickets) unless they were part of a sentence of the court. This includes all drink driving offences. Note: We will carry out criminal record checks on all applicants and dependants.

Permanent residence after five years

You only need to apply for a permanent residence document if:

You will be asked to disclose details of your criminal record as set out above.

Permanent residence before five years

In certain situations, you can automatically be granted permanent residence status in less than five years. This includes:

  • If you have to stop working permanently because of a work related accident or illness that means you’re entitled to a UK pension
  • After you’ve been resident in the UK for 2 years if you have to stop working or being self-employed because of an accident or illness (‘permanent incapacity)
  • After you’ve been resident in the UK for 3 years if you (a) reach State Pension age; (b) retire early; (c) start work or self-employment in another EU country.

Restrictions on entry to the UK on the grounds of public policy or public security

When making a decision to refuse admission, exclude, refuse or revoke residence or remove an EEA national or their family member from the UK on the grounds of public policy or public security, officials must ensure that any decision made is in accordance with the following principles:

The decision must comply with the principle of proportionality

This means that the measures to restrict an individual’s free movement rights must be necessary and appropriate to protect the fundamental interests of society.

The decision must be based exclusively on the personal conduct of the person concerned

This means that a decision can only be taken with regard to the conduct of the individual concerned and the circumstances must be assessed on a case-by-case basis taking account of any available evidence. It is not necessary for a person to have criminal convictions for a decision to be made on public policy or public security grounds, if their personal conduct is assessed to be a threat.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society

  • Genuine – the threat must be a realistic one
  • Present – the threat must exist but it does not need to be imminent. An indication of a present threat may include intelligence or any precautionary measures which have been imposed on the individual for example a licence condition imposed because there is a genuine and present risk.
  • Sufficiently serious – the threat must be serious enough to affect one of the fundamental interests of society but does not need to be a serious threat.

It’s not necessary to demonstrate that an individual is likely to commit a specific type of offence but when considering whether an individual poses a threat, the following factors will also be considered:

  • Nature of offence – in the case of deportation, the government’s view is that certain types of offences weigh in favour of deportation. These are offences which typically result in a custodial sentence or a requirement to sign the Violent and Sex Offender’s Register.
  • Length of sentence – in most cases, the length of sentence will provide a strong indication of the severity of the offence, although each case will be considered on its own merits.
  • Rehabilitation – the duration of any rehabilitative efforts will be relevant to the public policy decision. Where such efforts are in their infancy (for example a few weeks in the community or a few sessions undertaken), these will not be considered useful to determine a risk of re-offending.

Matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision

Decisions must be made on a case-by-case basis, considering all the facts and circumstances of the individual case.

The individual’s previous criminal convictions do not in themselves justify the decision

A decision made on public policy or public security grounds cannot be made on criminal convictions alone. The nature of the previous offending including the number and seriousness of previous convictions will form part of the assessment of the persons present conduct. On occasion, cautions and warnings can be taken into account.

The decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person

A decision may be made to prevent an individual from carrying out certain, specific types of conduct. This is particularly important in the national security context, where there is reliable intelligence to suggest that an individual or their family member may pose a threat to public security.

Additional considerations for a person resident in the UK

If you are resident in the UK, additional considerations must be taken into account when deciding whether you should be excluded from the UK. These include:

  • Age – This will have greater significance if you are under the age of 18.
  • State of health – Your physical and mental health will be considered and, in particular, the implications of any decision on your health. If you’re claiming ill-health, you would need to provide substantial medical evidence from medical professionals.
  • Family and economic situation – If you have dependants in the UK, such as children who are financially or physically dependent on you, this will be taken into account.
  • Length of residence – Generally the shorter the length of residence, the less likely it is that you will have established significant links to the UK and the easier you would find it to be able to integrate into the country you are being returned to. This would include anybody who has not resided in the UK for a continuous period of 5 years and therefore have not acquired a permanent right of residence.
  • Social and cultural integration – This considers the degree to which you have integrated in the UK. This could include links to family and friends, length of residence, properties or business interests in the UK. A criminal record would be an indication of a lack of integration especially if the nature of your offending was anti-social behaviour against a local community or offending that caused a serious or long-term impact on a victim or victims (for example burglary or sexual assault). Any type of custodial sentence would also demonstrate that you were unable to become an integral part of society.

What protection against restriction of Free Movement rights and removal is there?

Article 28 of the EEA Regulations provides additional protection to you in relation to decisions to remove you or family members from the UK.

Individuals with a permanent right of residence

If you or a family member has established a permanent right of residence, a decision to refuse admission, exclude, revoke residence or remove you from the UK, will only be permitted on serious grounds to public policy or public security. However, there is no definition of serious grounds in the regulations.

EEA nationals with 10 years’ residence in the UK

The regulations state that a decision to refuse admission, exclude, revoke residence or remove you from the UK is only permitted on imperative grounds of public security. Where an EEA national either:

  • Has resided in the UK for a continuous period of at least 10 years prior to the decision*
  • Is  under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for by the Convention of the Rights of a Child.

Imperative grounds are not defined in the Regulations and may be interpreted to include serious criminality, such as drug dealing as part of an organised group.

*Any time spent in prison or a young offenders institute does not count as legal residence and will interrupt continuity of residence when assessing whether you or a family member has accrued 10 years residence.

What is meant by ‘fundamental interests of society’

Schedule 1 of the EEA Regulations 2016 states that consideration will be given to the fundamental interests of society when determining whether it is appropriate to restrict a person’s free movement on the grounds of public policy and public security.

A list of the types of behaviour considered contrary to each fundamental interests of society is set out below with some examples provided. This is not an exhaustive list.

The fundamental interests of society include:

Examples:

  • Marriages of convenience
  • Human trafficking
  • Use of fraudulent documents
  • Facilitating illegal entry to the UK
  • Circumventing the immigration system
  • Facilitating the circumvention of the immigration system

Examples:

  • Inciting public disorder
  • Anti-social behaviour such as criminal damage, drug offences and offences committed to fund a drug or alcohol habit, or committed while under the influence of drugs or alcohol.

Examples:

  • Low level criminality
  • Acquisitive crime including theft and shoplifting

Examples:

  • Tobacco or alcohol smuggling
  • Tax fraud
  • Non-payment of tax or duties owed

Examples:

  • Benefit fraud

Examples:

  • Drugs offences (smuggling, supplying, manufacturing drugs)

Examples:

  • Persistent shoplifting

Examples:

  • High harm criminality
  • Human trafficking

Examples:

  • High harm criminality
  • Human trafficking

Examples

  • Entry of a child if there are concerns as to why they are coming to the UK or  who they are travelling with

Behaviour which may lead to a public policy decision

Criminality

Your criminal behaviour will be taken into account when making a decision on public policy or public security grounds even if you have not received any criminal convictions providing there is sufficient, corroborated law enforcement evidence to underpin a decision. Criminal behaviour of this type may be evidenced by either a domestic or overseas conviction.

Persistent offending is considered contrary to the fundamental interests of society. Persistent offending includes offences, which if taken in isolation, may otherwise not meet the requirements of regulation 27.

An individual is considered to be a persistent offender if they show a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short time frame, or which escalate in seriousness over time, or a history of minor offences. Non-custodial sentences, suspended sentences, restraining orders, anti-social behaviour orders, cautions etc can all be taken into consideration.

Marriage, civil partnership and durable partnership of convenience

The EEA Regulations 2016 define a marriage or civil partnership of convenience as a marriage or civil partnership entered into for the purpose of using these regulations as a means to circumvent:

  • Immigration Rules applying to non-EEA nationals
  • Any other criteria that the party to the marriage or civil partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these regulations

A non-EEA national who has entered into a marriage or civil partnership of convenience will be treated as an immigration offender.

Fraudulently obtaining a right to reside

Paragraph 6(a) of the Regulations state that it is consistent with public policy and public security requirements to refuse, terminate or withdraw an EEA right where it involves obtaining, attempting to obtain or assisting the fraudulent acquisition of a right to reside under EEA Regulations.

Evasion of taxes and duties

The evasion of taxes and duties is considered contrary to the fundamental rights of society. If you are found to have in your possession goods such as tobacco or alcohol in large quantities which are not consistent with personal use, consideration will be given as to whether they are attempting to evade the payment of duty.

Decision to refuse admission to the UK

Border Force officers can refuse admission to an EEA national or their family members on the grounds of public policy or public security. Refusal will be given to anybody subject to a valid deportation or exclusion order unless they are seeking entry to attend an appeal hearing and have permission to do so.

If the decision is made to refuse entry then your passport will not be endorsed.

Once you’ve passed through immigration control, you are considered to have been admitted to the UK unless you entered in contravention of a deportation order or exclusion order.

A decision to grant admission does not necessarily preclude a decision being made on public policy or public security grounds at a later date.

Decision to refuse, renew or revoke documentation

Applications to issue or renew documentation may be refused on public policy or public security grounds.

A decision may be made to revoke documentation where you cease to have a right of residence on public policy grounds or where you’ve never had a right of residence in the first place.

Decision to deport from the UK

The EEA Regulations allows for the deportation of EEA nationals or their family members on the grounds of public policy or public security. The government will pursue a deportation order when a person’s conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

You will be allowed one month to leave the UK voluntarily, beginning on the date on which you are notified of the decision to remove you although you may be removed earlier:

  • In duly substantial cases of urgency (for example if a prisoner was involved in prison riots)
  • Where you are detailed pursuant to the sentence or order of any court
  • Where you have entered in breach of a deportation or exclusion order.

If you are liable to deportation you must be notified in writing and given the opportunity to make representation. You must be advised of the public policy or public security reasons for your intended removal from the UK.

Once the deportation order is in force, your free movement rights are restricted and you are required to leave the UK. If you do not comply with the requirements to leave then your removal can be enforced.

Deportation orders remain in place until revoked by the Secretary of State for the period specified in the order. Once deported, you are prohibited from returning to the UK unless you successfully apply to have the order revoked or until the end of the order specified.

Re-entry to the UK following a deportation order

If you’ve been deported from the UK on the grounds of public policy or public security, you will be prohibited from entering the UK until the deportation order is revoked or for the period specified in the deportation order.

The EEA Regulations introduced some time-limiting deportation orders where it was felt that an indefinite re-entry ban would be disproportionate. The table below gives an indication of the length of the re-entry restrictions. These are only a guide and individuals will be dealt with on a case-by-case basis.

Practical effects of a public policy or public security decision

The decision to remove somebody on the grounds of public policy or public security will only be taken after careful consideration of an individual’s circumstances and the risk they pose.

If you are subject to a deportation decision, then it is possible that restrictions will be placed on your residency and/or employment.

Appealing a decision

Where a public policy decision was made before 1 February 2017 under the EEA Regulations 2006, an appeal against the decision will be considered under the EEA Regulations 2006.

Where a deportation decision was made on or after 1 February 2017 under the EEA Regulations 2016, an appeal against the decision will be considered under the EEA Regulations 2016.

If you’ve been served with an EEA decision, you can appeal against that decision to the First-tier Tribunal. In the appeal you will have to demonstrate why the EEA decision was wrong. Further information can be found in the Home Office Rights of Appeal document.

The EU Settlement Scheme – settled and pre-settled status

Our information the EU Settlement Scheme is available here.

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 below can be found here.

More information

  1. For practical information – More information on housing and living in the UK
  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

 

 

 

Subject access request (SAR) – General information

Please note: This 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.

Aim of this page

The aim of this page is to provide some general information about subject access requests (SAR) including what information you’re entitled to, how to apply for it and how to raise a concern if you think your information is incorrect.

This forms part of our information on other areas of life.

Why is this important?

Everybody has the right under the Data Protection Act 2018 to make a request to any organisation, for a copy of the information that organisation holds about you.

There are many reasons why you may want to apply for an SAR. It could be to find out the reason why a certain decision has been made about you, for example an assessment about your performance at work. You might want to establish whether a company has the correct information about you; may be you want to know whether your employer is still keeping details of a conviction which has recently become spent. It’s important to know how to go about getting this information and also, what you can do if an organisation refuses to give it to you.

What is a subject access request (SAR)?

A subject access request is simply a verbal or written request under the Data Protection Act 2018 to an organisation asking for copies of personal data and any other supplementary information that organisation holds about you. An SAR enables you to understand how and why an organisation is using your data and to check that they are doing it lawfully.

What Information are you entitled to ask for?

A SAR gives you the right to request:

  • whether the organisation is processing your personal data;
  • a copy of the personal data they hold about you;
  • any other supplementary information.

In addition, you may also want to ask to be provided with details of:

  • the purpose for which your data is being processed
  • the types of personal data being processed
  • any third parties that your data is being shared with
  • how long your data will be kept for
  • how you go about making a request to have your data amended or deleted
  • how the organisation became aware of data if it was not provided directly by you
  • whether the organisation uses any automated decision-making processes.

Applying for your SAR

You can make a SAR request to an organisation verbally or in writing. If you make your request verbally, it’s recommended that you follow it up in writing to provide a clear trail of correspondence. Most organisations will have details on their websites or in their privacy policies as to how you can apply for your SAR.

When making a subject access request you should provide the organisation with the following information:

  • Your name and contact details
  • Any information used by the organisation which would distinguish you from others with the same name (for example an account number)
  • Specific details of the information you require together with any relevant dates – this should help the organisation deal with your request more quickly.

The ICO have a template letter which can be used when applying for your SAR.

Always keep a copy of your request together with proof of postage or delivery.

A SAR should be free of charge, although organisations can charge a reasonable administrative fee if you require additional copies or they believe that the SAR is ‘manifestly unfounded or excessive”. The organisation will have one month to respond to your request, but in certain circumstances can extend the time to an extra two months. In this case, they should inform you of the extension and the reason why it is needed.

Can an organisation refuse to provide you with an SAR?

An organisation may refuse your request if your data includes information about another individual, except where:

  • The other individual has agreed to the disclosure, or
  • It is reasonable to provide you with the information without the other individuals’ consent.

The organisation may also refuse if they believe that the request is ‘manifestly unfounded or excessive’.

In either case, they will need to provide you with the reason for their refusal.

How can you raise a concern regarding your SAR?

If you’re  unhappy with the way the organisation has handled your SAR you should first make a complaint to them.

If their reply does not resolve your concern than you can make a complaint to the Information Commissioners Office (ICO)

Useful links

Below you will find links to useful websites relating to this page.

  • ACRO Criminal Records Office (ACRO) – is the national police unit, who process subject access requests for information held on the Police National Computer (PNC) on behalf of most UK police forces.
  • Information Commissioners Office (ICO) – an independent body set up to uphold information rights. Their website provides more information and advice about SAR and how you can raise a complaint with them if an organisation doesn’t deal with your personal data properly.

More information

  1. For practical information – More information can be found on police records – subject access request
  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
  4. Share your personal story by contributing to our online magazine, theRecord

This page was last fully reviewed and updated in July 2018. 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.

 

Travelling to China

Aim of this page

The aim of this page is to set out whether people travelling to China require a visa to travel and if so, whether there is any necessity for them to disclose their criminal record.

Why is this important?

Applying for any type of visa can be expensive and time consuming, and it’s important to know therefore what, if anything, you’ll need to disclose about your criminal record. Also, if you do disclose a conviction, how it might affect your chances of success in getting a visa.

Do I need a visa to go to China?

British nationals wishing to enter mainland China (but not Hong Kong or Macao) will require a visa.

As of 11th January 2016, in line with reciprocal visa arrangements between China and the UK, the Chinese Embassy and Consulates will issue two year multi-entry visas for eligible British nationals for stays of up to 90 days for commercial/trade activities and for individuals travelling as a tourist or to visit family members/relatives.

What do they ask about your criminal record on the visa application form?

The application form asks:

‘Do you have any criminal record in China or any other country?  Yes/No’

Chinese Visa application form

There is very little guidance as to what the Chinese consider should be disclosed. The Embassy states that disclosure of a conviction would not automatically stop you from getting a visa but you should answer the question honestly so that you do not risk being turned away on arrival at the border or expelled after entry in China. Any conviction given at either a magistrates or crown court should be disclosed to comply with Chinese law.

How long does it take to get a visa?

The normal processing time is four working days providing you have all the necessary documentation and have a passport with at least six months validity.

Where can I apply for a visa and what’s the cost?

As of 1 November 2018, all applicants aged between 14 and 70 will need to make their visa application in person at a Chinese Visa Application Centre. As part of the application process, biometric data (scanned fingerprints) will now have to be provided. The price varies from $30 to $140 depending on your nationality, the type of visa you are applying for and the country where you are applying from.

Additional information

Drug offences

There are extremely severe penalties for drug offences in China, including the death penalty. The Chinese authorities undertake random drug testing on foreign nationals including on entry to the country. If you test positive you can be prosecuted regardless of where and when you consumed the drugs.

If you do disclose details of a drug offence on a visa application, it is our belief that your visa is likely to be refused.

Personal experience

The case study below relates to an individual helped by our helpline:

Charles – Information and advice is great but Unlock also gave me encouragement and support

Discuss 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 information

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

This page was last fully reviewed and updated in March 2018. If you’ve spotted something that needs updating, please let us know by emailing the details to advice@unlock.org.uk.

 

 

Leading charities with conviction – Guidance for individuals on changes to the rules on being a trustee or senior manager of a charity with a criminal record

As this is new guidance, we’re keen to get your thoughts. Let us know what you think of it and how it could be improved. Leave your feedback here. We will be updating it more as time goes by – to be notified of updates sign up to our mailing list.


Introduction

This guidance is for individuals in England and Wales. It summarises the changes to the automatic disqualification rules that happened in 2018 that relate to people being a trustee or senior manager of a charity and how they apply to people with criminal records.

It’s designed to help individuals understand these changes and look at what steps they might need to take if they have a criminal record.

It’s been written by Unlock, an independent charity for people with convictions, with the support of Clinks, the national infrastructure charity that supports the voluntary sector working in criminal justice in England and Wales.

It’s part of our guidance on working and volunteering in charities.

We have developed separate guidance for charities to help them understand the changes.

There are a number of terms used in this guidance, including “new rules”, “disqualification” and “relevant criminal record”.  Find out what we mean by these.

Separate to criminal records (which is the focus of this guidance), there are a number of other factors which can mean an individual cannot be a trustee or senior manager without obtaining a waiver first. More details about these other factors are covered in the Charity Commission guidance.

Aim of this guidance

From 1 August 2018, the rules in England and Wales as to who can be a trustee or hold certain senior manager positions in charities changed. This guidance aims to set out what the changes were, who may be affected by them and what steps you can take if you are affected.

If you find that you are prevented (‘disqualified’ as it’s technically known) because of your specific criminal record, you can apply for clearance from the Charity Commission (technically known as a ‘waiver’). Importantly, you can apply for a waiver before the new rules come into force in August. This guidance covers that process in some detail.

The guidance doesn’t cover other rules, regulations or checks that may apply depending on the nature of the work of the charity – such as enhanced criminal record checks or prison vetting.

Why this guidance is important

People with convictions often feel that they want to ‘give something back’ after having had personal experiences themselves of the problems that other people are now facing. This can include working in the criminal justice system or for drug and alcohol rehabilitation services etc. Becoming a trustee gives you the opportunity to make decisions on how a charity is run which will have an impact on many people’s lives. Increasingly, charities see that involving people with convictions is an extremely positive step and means they have a board made up of people with very diverse skills and experiences.

Previous rules (from the Charities Act 2011) set out factors that prevented some people from being trustees of a charity. However, the changes which came in on 1 August 2018 (as a result of the Charities (Protection and Social Investment) Act 2016 made two key changes:

  1. The rules are extended to include senior manager positions
  2. More types of criminal convictions included

So if you’re already a trustee or in a senior manager position, or you’re considering applying for such a position, then it’s important to know whether you will be disqualified and if so, whether you should consider applying for a waiver from the Charity Commission.Roles that the rules apply to

Roles that the rules apply to

The new rules apply to two main groups in charities – Trustees and certain senior manager positions. For the purposes of this guidance, the roles the new rules apply to are referred to here as restricted positions.

  • Trustees – Trustee roles are normally quite clear, and although the Charity Commission have separate definitions for ‘charity trustee’ and ‘trustee of a charity’ (see the Charity Commission website), the rules apply to both.
  • Certain senior manager positions – The rules applied to these roles from 1 August 2018. See below for more detail on this.

What is meant by ‘certain senior manager positions’?

This is a new type of role covered by these rules, so it might take time for charities to get to grips with which roles are covered.

Based on guidance from the Charity Commission, it will include anybody who either acts as the charity’s most senior executive and in a managerial capacity reporting only to the charity’s trustees, or who controls the charity’s finances. This will usually cover the role of chief executive and finance director. It’s important to note that it’s the function of the job not the job title that determines who is classed as a senior manager – the Charity Commission has produced a helpful graphic (see below) and we cover this in more detail in our guidance for charities.

The rules don’t apply if you’re looking to work or volunteer for a charity in other roles. They may still ask you about your criminal record, so you will need to think about whether and how to disclose your criminal record, but in most cases it will be down to the charity as to how relevant they think your criminal record is, and they may carry out some form of assessment before considering whether to offer you a role.

What if I don’t think my role is a restricted position?

There should be little dispute about trustee roles.

If you’re working or going to work, as a senior manager then the responsibilities of your role will determine whether it is classed as a restricted position. You would generally be required to have overall responsibility for the day to day management and control of the charity and/or be accountable to the CEO or trustees.

Further guidance and examples of roles are available from the Charity Commission. If you don’t believe that your role is a restricted position, you should raise this with the charity directly. You might also contact the Charity Commission.

Criminal records that the new rules cover – Relevant criminal records

You are prevented from the restricted positions above if you have a certain type of criminal record, which we’ll refer to here as “relevant criminal record”.

There are two elements that make up a relevant criminal record:

  1. If you have an unspent conviction (with one exception), and
  2. Where your unspent conviction is for a certain category of offences.

Unspent convictions only (with one exception*)

If your conviction is unspent under the Rehabilitation of Offenders Act 1974, it might disqualify you if it’s for one of the offences listed below.

If your conviction is spent under the ROA, it doesn’t disqualify you*. You can check if your convictions are spent by using our online tool: www.disclosurecalculator.org.uk.

The vast majority of convictions are spent. There are over 11 million people with a criminal record, but only about three-quarters of a million are unspent.

Simple cautions become spent immediately, which means they don’t disqualify people under the automatic disqualification rules.

*There is one situation where a spent criminal record disqualifies you. This is if you are on the sex offenders register. This disqualifies you, regardless of whether the conviction is unspent or spent. See the offences covered below for more details.

Offences covered

The following offence types are covered by the new rules. For trustee roles, those marked with an asterisk are new and in addition to those that already exist. For senior manager positions, all these offences apply for the first time. Remember – these only apply if the offence is unspent (with the exception of being on the sex offenders register).

Examples of what this includes can be found below

Offences:

  • to which Part 4 of the Counter Terrorism Act 2008 applies; or
  • under sections 13 or 19 of the Terrorism Act 2000 under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) in relation to the offence

An offence within the meaning of section 415 of the Proceeds of Crime Act 2002

An offence under sections 1,2,6 or 7 of the Bribery Act 2010

An offence under section 77 of the Charities Act 2011 – contravening a Commission Order or Direction

In relation to offences at 1-6 above, an offence of:

  • attempt, conspiracy, or incitement to commit the offence
  • aiding or abetting, counselling or procuring the commission of the offence
  • under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) in relation to the offence

This is where an individual is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (often referred to as being “on the sex offenders register”). An individual can still be on the sex offenders register even if their conviction is spent, and this is the only situation where a spent conviction is covered by these rules.

If you have an unspent conviction for an offence not listed above, you wouldn’t be prevented under these roles and so do not need to apply for clearance to be involved in a charity as a trustee or senior manager. However, you might still need to disclose your criminal record to the charity, depending on their policy.

Examples of dishonesty or deception offences

The majority of people with convictions covered by these rules will be because they have an unspent conviction for dishonesty or deception. But what does that cover?

A dishonesty or deception offence includes theft, fraud by false representation, and fraud by failing to disclose information.

Many offences can be committed by using dishonesty or deception, but that’s not the same. Offences not covered by this definition (and so are not covered by the rules) include TV licence evasion, most motoring offences, benefit fraud, assault and possession of classified drugs.

Getting certainty on whether something is classed as dishonesty or deception

You will have to look at each individual offence that you have been convicted of to see if dishonesty or deception forms an element of the offence that has to be proved for someone to be convicted of the offence.

For example, in the Theft Act 1968, the basic definition of theft is stated in section 1: “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the owner of it; and “thief” and “steal” shall be construed accordingly”. This means “Theft” is an offence involving dishonesty.

Dishonesty and deception are separately defined in relation to different offences. If you are in doubt as to whether your conviction involved dishonesty or deception, and if it’s not clear from the legislation you would need to seek your own legal advice to get certainty. We would also suggest that you contact the Charity Commission as they should be willing to advise on this matter. Otherwise, you may wish to submit an application for waiver from the Charity Commission.

How else could I be disqualified?

There are other reasons that mean you could be disqualified,such as being an undischarged bankrupt. Our guidance focuses specifically on criminal records, but the Charity Commission has guidance on these other reasons.

Action – Check if you’re affected

  1. If you are currently a trustee or looking to become one, you need to check if any of the new rules will apply to you
  2. If you’re currently in, or looking to work as, a relevant senior manager position, you need to check if any of the rules will apply to you
  3. We have developed a useful online tool

If you’re disqualified ….

If your role is a restricted position, and you have a relevant criminal record, you are prevented from doing that role unless you have clearance (known as a waiver).

Senior manager positions

If, after the 1 August 2018, you are, or become, disqualified from working in a senior manager position, you must have a waiver in place to continue. If you don’t have a waiver in place, you will need to stop acting in that position. You may need to seek legal advice about how this will affect your employment rights.

Trustee positions

If you are, or become, disqualified as a trustee you must have a waiver in place to continue. If you don’t have a waiver in place, you will need to formally resign from any trustee positions you hold.

What if you continue in a restricted position while disqualified?

If  you hold a role as a trustee or senior manager and are disqualified from that role, then you will need to immediately inform the charity. If you continue to work and the charity finds out, they would usually view this as a serious incident. The charity might then report the matter to the Charity Commission and/or the police.

Do you need clearance (a waiver)?

We’ve got two things to help you work out if you need clearance: a flow chart and an online tool.

Flow chart

The flow chart below should help you to work out whether you need to apply for a waiver from the Charity Commission or whether you can be involved in a charity without one.

Online tool

Our online tool is designed to help you understand if the changes will affect you. By working through a series of questions, the tool will help you to determine whether you need to apply for a waiver. This tool is very new and we would like to know what you think of it, especially if you’ve encountered any problems with it or can suggest ways in which it might be improved.

Understanding the clearance/waiver process

If you are disqualified from a restricted position because of your criminal record, you will need to apply for a waiver. If granted, this will bring your disqualification to an end.

When can a waiver be applied for?

You can apply to the Charity Commission at any time for a waiver of your disqualification.

If you will be disqualified as a result of the changes coming into effect, you will not be able to act as a trustee or a senior manager until you have applied for and been granted a waiver.

Types of waiver

There are three types of waiver:

  1. General waiver – for all charities
  2. Waiver for a specific class of charity – this is a group of charities that share a characteristic. This could, for example, be charities working towards the “rehabilitation of offenders” (as it’s often referred to)
  3. Waiver for a specific names charity (or charities)

You can apply for more than one type of waiver at once, which means that you can apply for a waiver that allows you to:

  • be a trustee, or hold a senior manager position, at a named charity or charities
  • be a trustee, or hold a senior manager position, at any charity (general waiver)
  • be a trustee, or hold a senior manager position, at a class of charities
  • hold a senior manager position only at a named charity or charities. If this type of waiver is given, your disqualification from acting as a trustee remains
  • hold senior manager positions only at a class of charities. If this type of waiver is given, your disqualification from acting as a trustee remains
  • hold senior manager positions only at any charity. This is a general waiver. If this type of waiver is given, your disqualification from acting as a trustee remains

What type of waiver should I apply for?

Think carefully about what you’re looking to do. If you have a clear reason for applying for a waiver – for example, you’ve been offered a job as a senior manager, it’s likely to be in your best interest to target your waiver application for that particular purpose.

However, you can apply for more than one waiver at the same time, so there is no harm in potentially applying for more than one type, so long as you consider the different factors that the Charity Commission will consider for these different types of waiver, and make sure that you include the relevant information for each of these factors for each of the waivers.

Will I be granted clearance/a waiver?

The Charity Commission will decide each case on its own merits. However, there is guidance available on how they will make their decisions, and it can seem like quite a high bar. They state that their “starting point is that you should normally remain disqualified until the legal disqualifying reasons that affect you, no longer apply.”

For example, they say they will only give waivers where they believe that:

  1. It is in the best interest of the charity or charities for which the disqualified person asks for a waiver, and
  2. It is not likely to damage public trust and confidence in a charity or charities.

The Charity Commission do give guidance on things that make it more or less likely for your application for a waiver to be granted.

For example, they say that when looking at whether it will damage public trust and confidence in a charity or charities, they will look at factors including:

  1. The severity of what you did and the circumstances
  2. How long ago it happened
  3. Whether it caused damage to a charity.

Things that make it more likely you’ll get clearance

Things that make it more likely you’ll get clearance is to show in your waiver application that:

  1. Your relevant criminal record relates to a long time ago and you can show evidence of good conduct since then.
  2. Your unspent conviction is near to becoming spent – especially if you can show that by granting a waiver it will avoid unnecessary disruption to a charity.
  3. Your offence was not against or damaged a charity.
  4. It involves one or more named charities and there is support for your application by the trustees – with a minimum of the majority of trustees supporting.
  5. It relates to a charity or charities established for purposes which include the rehabilitation of people with criminal records.
  6. Your involvement to the charity is important because of your qualities, skills or experience which, if lost to the charity, would mean that it was less effective.
  7. It is for a named charity or charities, rather than a general waiver or a class of charities.
  8. You have a relevant user perspective that the charity needs in a trustee or senior manager position. In the example the Charity Commission use, they state “the skills and experience of a person who also has a criminal conviction might well benefit a housing charity or relief of poverty charity, whose service users include a high proportion of people with criminal records.”

The points above are important to consider when looking at what to include in your waiver application.

Things that make it less likely you’ll get clearance

Things that make it less likely you’ll get clearance are generally the opposite of the points above, but in particular include if:

  1. Your unspent conviction is recent.
  2. Your application involves a named charity and there is no majority support of their trustees.
  3. Your application is for a general waiver or a waiver for a specific class of charity, rather than a waiver for a specific charity. This is because the Charity Commission say that they need to be confident that the risk in giving a waiver is outweighed by the benefit to the charity sector generally. The decision is likely to be easier in relation to a named charity where there may be supporting documentation from the charity’s trustees.

Waiver applications will be decided using the same approach, whether the application is

  • For a waiver of a current disqualification;
  • Made after 1 August 2018.

Charities can use this guidance to find out more about when and how individuals can apply for a waiver, and how they can support this process.

What are my chances of success?

In the past, the number of waiver applications that the Charity Commission has received has been very low, however, they have been granted to the vast majority of applications.

There are no specific figures about the number of waiver applications processed each year which relate specifically to criminal records. In more general terms, in 2012 the Commission received 5 waivers, of which all were granted. In 2013, the Commission received 3 waiver applications, all of which were granted. In the last ten years, with the exception of a spike in applications in 2011 (due to specific work around insolvency), the Commission has received no more than 6 waiver applications per year, 90% of waiver applications over the last ten years were successful.

We have worked with the Charity Commission on improving their waiver process, and we expect the Charity Commission to grant a waiver where an individual can demonstrate the factors that the Charity Commission say will make a disqualification more likely to be waived.

What could happen if I don’t get a waiver?

It’s important that, if you’re disqualified under the rules and plan to continue in the role, you get a waiver in place. Otherwise, if you don’t have a waiver and so remain disqualified, there are some possible consequences:

  1. It is usually a criminal offence to act as a trustee or senior manager of a charity whilst disqualified.
  2. If you’re a serving trustee, you will have to resign. The Charity Commission can make an order to bring about a resignation if necessary.
  3. If you’re a senior manager, you might have to move roles or the charity may try to terminate your contract. Legally, you’ll not be able to do the role anymore.
  4. If it appears that you will remain disqualified from a relevant senior management role, then the charity must conduct a fair investigation into the circumstances providing you with an opportunity to make representation, and a right of appeal. As an interim/temporary measure, the charity could ask you to undertake alternative duties or place you on paid special leave.
  5. If it is confirmed that you are disqualified from the relevant senior management role, the charity will need to consider redeploying you to another role within the charity that you would not be disqualified from. If there are no suitable roles available, then potentially the charity will have a fair reason to dismiss you. The charity will need to have followed a fair process in reaching that conclusion, including consulting with you and giving you the opportunity to make representation and a right of appeal.
  6. If you are disqualified, the Charity Commission can order you to repay any expenses or benefits gained whilst disqualified.

If you are disqualified from being a trustee or from holding a senior manager position, it is important to remember that just because you are disqualified from these roles, you are not completely barred from being involved with charities. It may be that the charity could offer you another role until you receive your waiver from the Charity Commission or until such time as your conviction becomes spent.

Circumstances where you can’t get a waiver

The Charity Commission are unable to give you a waiver if the rules of the charity would disqualify you from being a trustee or a senior manager. For example, if the charity’s rules say that an undischarged bankrupt can’t be a trustee, a waiver would not override that.

In 2014, we clarified with the Charity Commission their approach towards exclusions that charities commonly have in their governing documents regarding being barred from being a trustee if they are disqualified under charity law. The Charity Commission confirmed that if an individual was able to obtain a waiver from them, the individual would no longer be regarded as disqualified under the relevant sections of the charities governing documents, and so could be appointed as a trustee.

Applying for clearance and getting a waiver

Charity Commission waiver application form

You can apply for a waiver by completing an online application form.  The Charity Commission will not accept paper applications although if you’re unable to use the online form, you can apply by email. You will need to include all the information outlined and send this to CCWaivers@charitycommission.gsi.gov.uk.  Remember – you can check if you need a waiver by using our flowchart or online form.

You will need to answer the questions on the online form, as well as submitting the supporting documentation required.

The Charity Commission has published a checklist, to help you make sure you include everything you need to include as part of your waiver application.

You can apply for it yourself, or somebody can do it for you, acting on your behalf. However, the waiver application cannot be submitted from the charity itself.

The waiver form includes the following sections:

Applicant details

This is a straightforward section where you enter your personal details.

Application details

This is where you choose the type of waiver you are applying for.

If you’re applying for a waiver for a specific charity, you’ll be asked to provide details of the charity’s name, address and charity number, together with information about your role and responsibilities. If you will be working as a senior manager, this could be a copy of your job description.

If you’re applying for a waiver to work as a senior manager you’ll be asked to confirm that one of the statements below is true. If you can’t then you don’t need to apply for a waiver to work as a senior manager.

  • I am a Chief Executive Officer with overall responsibility for the day-to-day management and control of the charity and accountable only to the charity trustees.
  • I am finance director with responsibility for the overall management and control of the charity’s finances and accountable only to the Chief Executive or the trustees.

Reason for your disqualification

This is where you need to provide details of your criminal record that means you are currently disqualified. The online application form asks you to provide the following details about your criminal record:

  1. The circumstances and details that led to your conviction.
  2. When you were convicted.
  3. What sentence you received.
  4. When your disqualification ends – this is likely to be when your conviction becomes spent, and our disclosure calculator can help you to work this out. If you’re on the sex offenders register, it will be when this period finishes.
  5. It doesn’t provide a space for providing evidence of what positive things you’ve done since, so we’d suggest you include this later in the form.

Supporting information from trustees

If you are applying for a waiver specifically to work as a trustee or senior manager position of a charity, you will be asked to supply details of the views of your trustees.

If you’re applying for a general waiver you should attach references or information from a third party to support your application.

We have covered what should be included in our guidance for charities, and in particular the section on “How to support a waiver application“. We recommend that you ask the charity to provide this as an electronic document on headed paper, so that you can submit it as part of your online waiver application, as it allows you to attach files.

You should attach files that show the support you have from the trustees of each charity you are looking for a waiver for, and you can also attach references or other information (which is particularly important if you are applying for a general waiver).

Additional information

This is where you can provide additional information that you think is relevant. As the ‘Reason for disqualification’ section doesn’t include any questions about what you’ve done since, we suggest you cover that here. So, that might include what work or volunteering you’ve done since your conviction, how you’ve turned your life around, and any additional comments that build on the supporting information you’ve provided from trustees or others.

The Charity Commission doesn’t state in their guidance whether it is necessary to provide a copy of your unspent criminal convictions (i.e. a basic disclosure). If you have a copy which has all your currently unspent criminal convictions, it might be worthwhile including it in your waiver application form. If you do not have a copy, you may wish to wait until you’re asked for one before obtaining it, as the current cost is £18 and there is a relatively quick turnaround if you later need to apply for one.

The Charity Commission has published a checklist, to help you make sure you include what you need to include as part of your application.

We’ve put together a template which can be used to help you explain why you should be granted a waiver. It’s a good way of bringing everything together prior to submitting your application online.

Download the waiver application template letter

What happens next?

The Charity Commission have stated that where you’re applying for a waiver for a named charity they may wish to contact the charity’s trustees to verify or clarify information which has been raised during the application process. You may wish to consider having a discussion with the trustees around the contents of your application once you’ve applied.

Getting a decision on your waiver application

Once the Charity Commission has assessed your application, they will either decide to give you one or more of the types of waivers available, or refuse to give you a waiver.

The Charity Commission say that they aim to respond to completed waiver applications within 15 working days. It’s important to make sure that you’ve provided everything that you need to so that you get a decision as soon as possible.

This allows you to act as a trustee or senior manager of the charities named in the waiver.

This allows you to act as a senior manager but your disqualification from being a trustee will remain in place.

This allows you to:

  • act as a trustee or senior manager; or
  • senior manager only
  • at any charity, for a general waiver
  • at all charities in the class, for a class waiver

This means you remain disqualified until either the reason you were disqualified no longer applies, you successfully appeal the decision (see below), or you make a later successful waiver application. If you become disqualified on the 1 August 2018 and you’ve applied for a waiver before that, your disqualification only takes effect if your appeal is refused and when your appeal rights have been exhausted.

Let us know the decision

We are keen to see how the Charity Commission makes its individual decisions in relation to people applying for a waiver because of their criminal record. This will help us in our policy and campaign work. Email policy@unlock.org.uk

Appealing a decision

A waiver decision can be appealed.

You can ask the Charity Commission to review their decision or appeal the decision to the Charity Tribunal.

You can read this guidance to find out more about requesting a review of a Charity Commission decision which also outlines the timescale for making an application to the Charity Tribunal.

If you are disqualified because of your criminal record, your waiver application has been refused and you are looking to appeal the decision, you can contact our helpline so that we can try to support you through this process.

An overview of the steps to take

To summarise a complex set of rules and process, we’ve put together a short overview of 5 steps that you need to take if you think you might be affected by these charity rules.

1.  Check if your role is covered

If you’re a trustee, you’re covered by the new rules. If you’re working in a charity, check if your role is classed as a senior manager under these rules.

2.  Check if your criminal record prevents you from doing the role

If you’re currently a trustee or looking to become one, you’ll need to check if any of the new disqualification reasons coming into effect will apply to you.

If you’re currently in, or looking to work in a relevant senior manager position, you will need to check if any of the disqualification reasons will apply to you.

3.  Use our tool to double-check

We’ve developed a simple, easy to use tool to help you work out if you’re affected by the rules.

4.  Tell the charity

If you’re currently involved in a charity or looking to become involved in a restricted position, and you find that you will be disqualified, you should tell the charity as soon as possible. If you are planning to apply for a waiver, their support will help. See below.

If  you are disqualified you must not act in a trustee position or in a relevant senior manager role.

5.  Apply for a waiver

If you’re looking to be a trustee or senior manager, you can either apply for a general waiver now, or wait until you have a specific position and then apply for a waiver for a named charity.

If you’re a current trustee who already has a waiver, its terms will continue to apply. You will only be disqualified if another or new disqualifying reason applies to you.

More information

  1. For practical information – More information can be found on understanding your criminal record and disclosing to employers
  2. To discuss this issue with others – Our online forum is a place where people with convictions can share their experiences on a whole range of issues. To participate, we have a section on enabling people with convictions to become trustees.
  3. Our policy work – Read about our policy work on enabling people with convictions to become trustees and run charities
  4. Questions – If you have any questions about this guidance, 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 stories by contributing to our online magazine, theRecord
  5. Help our policy work – enabling people with convictions to become trustees and run charities.

Implications of accepting a police caution

Aim of this page

This page sets out the implications that a caution can have in the future, particularly if you’re employed (or looking to work) in certain professions, such as teaching or nursing.

It may also be useful in identifying the things to consider before accepting a police caution.

It forms part of our section on understanding your criminal record and sits alongside our specific information on cautions.

Note that this page focuses on what are technically known as ‘simple cautions’. We have separate information on conditional cautions.

Why is this important?

Before you accept or refuse a caution it’s important to be aware of the possible consequences that it could have on you.  Although a caution is ‘spent’ immediately (under the Rehabilitation of Offenders Act),it does form part of your criminal record and can come up on certain criminal record checks.

Our helpline regularly receives calls from people who have accepted a caution believing it wouldn’t affect them in the future, only to be disappointed when they’ve been refused a job or college/university place due to their caution being disclosed on a criminal record check.

When are cautions given?

A caution can be issued at the discretion of the police as a formal warning to somebody who admits to committing a criminal offence. Cautions can be a quick and useful tool for the police to give to first time offenders who have committed relatively minor offences. For an individual, accepting a caution means that they’ll be dealt with quickly and not need to go to court. So there are many instances where accepting a caution is definitely the best way forward.

Areas of life which may be affected by a caution

The police will often take the view that a caution is merely a ‘slap on the wrist’ and for many people this will certainly be the case with a caution having very little impact on their lives. For some however a caution will have more serious and ongoing consequences.

If you’re applying for a job which is covered by the ROA, you wouldn’t need to disclose a caution and it will never appear on a basic criminal record check.

If you’re currently employed or looking to work in a role that requires a DBS check then you’ll always need to disclose your caution to an employer or college/university unless it’s eligible for filtering.

Having an entry on a DBS certificate may result in you being refused a job, irrespective of how minor the offence and the disposal given. This is especially so if you’re applying for roles with some of the more risk averse employers (for example schools and hospitals).

If you’re already in work then before accepting a caution it would be worth considering whether:

  • Your contract of employment requires you to disclose any cautions/convictions received during your employment and if so, how your employer would deal with the disclosure. If you do need to disclose and you’ve been working for the employer for some time, then it’s probably unlikely to result in your being dismissed unless the caution is relevant to the work that you’re doing.
  • Your employer carries out regular criminal record checks on which the caution may be disclosed. If this is the case, then again you should give some thought to how your employer would deal with the disclosure.

If you’re considering applying for these types of job then before accepting a caution you should consider whether the caution:

  • Is relevant to the role you will be applying for and could prevent you from gaining employment.
  • Would be eligible for filtering in the future. If so, you may want to think about delaying when you apply for these types of jobs or college/university courses until the caution is filtered and no longer has to be disclosed.

If you accept a caution for an offence under Schedule 3 of the Sexual Offences Act 2003, this will also result in your being placed on the Sex Offenders Register for two years and possibly barred from working in regulated activity.

A caution is unlikely to affect your ability to study at college or university for the majority of courses as you will usually only be asked to disclose unspent cautions/convictions.

However, if you’re considering applying for a course which would involve working with children or vulnerable adults and where an enhanced Disclosure and Barring Service check would be required, then you would need to disclose any caution which had not been filtered (cautions given to anybody under the age of 18 would be filtered immediately and wouldn’t need to be disclosed).

Cautions are spent immediately under the Rehabilitation of Offenders Act (ROA) and therefore irrespective of what type of insurance you’re buying, you will never need to disclose your simple caution to an insurer. This is the case no matter what question an insurer asks you.

If you’re looking to travel or work overseas it’s possible that you’ll need to apply for a visa together with a police certificate. This certificate will include details of all convictions, reprimands, warnings and cautions unless they are eligible to be ‘stepped down’. Depending on the nature of the offence, the disclosure of a caution may result in your visa being refused.

Further information about the entry requirements of other countries can be found here.

Court proceeding are exempt from the ROA and therefore if you’re attending court as either a defendant or a witness, your caution may be disclosed in any future court appearances.

When are cautions disclosed?

Basic criminal record checks

Under the Rehabilitation of Offenders Act, cautions become spent immediately and will therefore never be disclosed on a basic criminal record check.

Standard and enhanced DBS checks

Cautions will always be disclosed on standard and enhanced checks unless they’re eligible for filtering.

If your caution is eligible for filtering then after the relevant period (6 years if you were over 18 when you received it and immediately if under 18) it will be filtered from the standard/enhanced certificate and will no longer be disclosed.

What should the police advise before issuing a caution?

Although it is a police requirement to ask people to sign a form which sets out the implications of a simple caution, the use of varying formats and guidance across different police areas means that this isn’t always consistent across all forces.

Home Office guidance on cautions states that:

The significance of the admission of guilt in agreeing to accept a caution must be fully and clearly explained to the individual before they are cautioned.

Example of a simple caution from Thames Valley Police

The police will often describe a caution as a ‘slap on the wrist’ and this may mean that individuals refuse legal advice and accept a caution for an offence they either didn’t commit or without properly understanding the implications of doing so. So before accepting a caution, think carefully about the impact it may have on you in the future.

What happens if I don’t accept a caution?

The evidence required by the police to issue a caution is the same as would be required to take a case to court. So, if you refuse to accept a caution, the police could decide to refer your case to the Crown Prosecution Service who may decide to charge you and take you to court. If you’re subsequently found guilty, you’re likely to receive a conviction which could have more severe implications than a caution.

If you’re offered a caution by the police, you should get legal advice from a solicitor who will be able to advise you whether to accept it or not.

What else can you do if you’re offered a caution?

If the police offer you a caution, always seek legal advice and if you’re currently employed or thinking about working in a role that will require a DBS check, tell the solicitor.

You (or your solicitor) could request that the police consider dealing with you in a way which wouldn’t have such a negative impact on your future. For example, if your offence was one relating to a public order offence, the police may be able to issue you with a Penalty Notice for Disorder (PND) or a Community Resolution Order if your offence related to shoplifting. These informal disposals are unlikely to appear on an enhanced DBS certificate unless the police believed them to be relevant in which case, they may be disclosed under the ‘additional information’ section of the enhanced certificate.

If a caution is the only way the police are willing to deal with you, then in certain circumstances your solicitor may be able to request that the caution is given for a lesser offence. For example, if the police are looking to caution you for Assault Occasioning Actual Bodily Harm (which wouldn’t be eligible for filtering), they may be happy for you to accept a caution for common assault or battery, both of which would be eligible for filtering.

Personal experiences

The personal stories below have been posted in the community section of the website.

I couldn’t let a caution for ABH hold me back – Getting a job in the NHS

Is a caution really a ‘slap on the wrist’? – Not if you need a police certificate

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.

More information

  1. For practical information – More information can be found on simple cautions (including youth cautions) and conditional cautions
  2. To discuss this 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

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

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

 

 

Applying for a licence to become a taxi driver

Aim of this page

Providing you can drive, there’s not a huge amount of additional training you’ll need to get started as a taxi driver. Added to this the flexible hours and the ability to earn a reasonable living, and you can see why people with convictions seriously consider this type of work.

The aim of this page is to set out how a criminal record may affect your success in becoming a licensed taxi driver.

Why is this important?

If you’re applying to become a licensed taxi driver you’ll need to apply to the licensing unit of your local council (or Transport for London, TfL, if you want to work in the capital). Councils all have slightly different ways of dealing with the disclosure of a criminal record with some appearing to be more willing to approve applications than others. It’s a good idea to do some research prior to applying as your nearest council may not be the best one to apply to.

As part of the application process, the council will carry out checks to determine whether you have a criminal record and it’s important that you have a good understanding of what you’ll need to disclose, and how to appeal if the council refuse your application.

What’s the criteria for getting a licence?

Each council will have their own licensing criteria but generally you’ll need to:

  • Have a full UK or EU driving licence
  • Have an enhanced Disclosure and Barring Service check
  • Be able to get suitable taxi insurance
  • Be aged over 18 (21 in some areas).

Are there different types of taxi licence?

There are two types of taxi licence:

  • A hackney carriage licence – the vehicle and driver are immediately available for hire and can be hailed on the street
  • A private hire vehicle licence – these must be booked in advance through a licensed operator

The licensing criteria and qualifications are broadly very similar for both and your local council will be able to provide you with details of which licence to apply for.

In addition to the above, some councils will require you to hold an additional licence if you wish to undertake any type of school transport contract work.

Will I need a criminal record check to get a licence?

Irrespective of the licence you are applying for, all taxi drivers will require an enhanced Disclosure and Barring Service check.

If you have not been resident in the UK for the previous 5 years, some councils will also require you to have a Certificate of Good Conduct. You can apply for this at the relevant embassy in the UK.

Do people with convictions get licences?

The disclosure of a criminal record shouldn’t automatically exclude you from holding a taxi licence. The aim of the licensing authority is to ensure:

  • The person does not pose a threat to the public
  • That the public are protected from a dishonest person
  • The safeguarding of children or young people.

When considering your criminal record, the licensing authority should look at:

  • How relevant your offence is
  • How serious the offence was
  • The date of the conviction
  • The circumstances surrounding the conviction
  • Your age at the time of the conviction
  • Whether the conviction forms part of a pattern of offending
  • Any other relevant factors

The Department of Transport Taxi and Private Hire Vehicle Licensing: Best Practice Guidance states that you are less likely to be granted a licence if you have an unspent conviction relating to dishonesty, violence, a sexual offence or an offence relating to alcohol, drugs or controlled substances. However, it’s important to note that, because it involves an enhanced criminal record check, spent convictions will be considered too.

However, a Freedom of Information request done by the BBC earlier this year revealed that since 2012, three hundred drivers with convictions had been granted taxi licences across six councils in the north-west.

What can I do if I’m refused a licence?

If your application is refused, you have the right to appeal the decision through the licensing authority’s appeals panel.

If the licensing committee uphold the refusal then you can appeal to the Magistrates Court within 21 days although this can be expensive and you may wish to seek legal advice prior to going down this route.

Alternatively you could consider applying to another local council who may be more understanding in the way they treat people with criminal records.

Receiving a criminal record if you already hold a licence

If you already hold a licence and receive a conviction, caution or fixed penalty notice you will need to disclose this to the licensing authority in writing within 7 days. They will consider the seriousness of the offence, any aggravating or mitigating factors and your past driving history and will then decide what, if any, action to take. This may include suspending or revoking your licence.

You will have the right to appeal the decision either through the licensing committee or at the Magistrates Court.

Getting taxi insurance

Anybody who drives a taxi will need specific taxi insurance. Standard car insurance won’t cover you, even if it includes cover for business use. Taxi insurance is likely to be more expensive than ordinary car insurance as many insurers perceive there to be a higher risk of an accident and if you have an unspent conviction, especially if it’s for a motoring offence, then this will add to the expense. You may want to discuss the likely cost of insurance with a specialist broker.

Discuss this with others

Read and share your experiences on our online forum.

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 below can be found here.

More information

  1. For practical information – More information on criminal record checks for employment
  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

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

This page was last fully reviewed and updated in September 2017. If you’ve spotted something that needs updating, please let us know by emailing the details to feedback@unlock.org.uk

 

 

 

 

Serious Crime Prevention Order (SCPO)

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

 

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

Issued by the court – contact the administering court.

Does it involve guilt?

Not necessarily. An order can be made to the Crown Court if a person has been convicted of a serious offence or to the High Court on a standalone application, if the person has been ‘involved’ in serious crime.

The High Court may be satisfied that a person has been ‘involved’ in serious crime if:

  • They have committed a serious offence in England or Wales
  • They have facilitated the commission by another of a serious offence in England or Wales
  • Their conduct was likely to facilitate the commission by himself/herself or another of a serious offence in England or Wales, whether or not such an offence was committed.

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?

After the length 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, i.e. working with children. Before it is spent, you will need to declare it, when asked, to employers, insurance companies and others.

Is it disclosed on DBS checks?

Yes, it will be disclosed on both standard and enhanced checks unless it is eligible for filtering.

Once spent, it will not be disclosed on a basic check.

What guidance is there on fair process?

There is CPS Guidance on Serious Crime Prevention Orders.

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

GOV.UK information on appealing a Court decision can be found here.

What can a SCPO include?

Examples of conditions which may be sought in both a High Court or Crown Court SCPO include (but are not restricted to):

  • Prohibitions, restrictions or requirements in relation to an individual’s financial, property or business dealings; an individual’s working arrangements; the means by which an individual communicates or associates with others, or the persons he communicates with; the premises the individual has access to; the use of any premises or item by an individual; an individual’s travel.
  • Requirement to make a person answer questions or provide information or to produce documents specified in the SCPO.
  • Prohibitions, restrictions or requirements in relation to an individual’s private dwelling.

An SCPO cannot require a person to do the following:

  • Provide oral answers to questions or requirements to provide information other than those specified in the SCPO.
  • Answer questions or provide information or documents covered by legal professional privilege
  • Provide excluded material as defined by s11 PACE [s13(1)(a)]
  • Disclose any information or produce any document held by him in confidence as part of a banking business, unless consent is obtained from the person to whom the confidence is owed, or the order specifically requires disclosure of information/documents of this kind.

It is essential that any terms are enforceable, clear and readily identify what conduct is prohibited or required so that any breach can be readily identified and capable of being proved.

The terms must be necessary and proportionate and must relate to the specific facts of the case (R v Searle [2014] EWCA Crim 650).

Terms should not seriously inhibit an individual from rehabilitating themselves in society, having served their sentence of imprisonment, by returning to his previous type of employment unless doing so is seen as the only way of preventing further involvement in serious crime.

Getting a SCPO changed or removed

Discharging a SCPO

The High Court in England and Wales may discharge a SCPO made by either the High Court or Crown Court in England and Wales.

Application for discharge may be made by:

  • The relevant applicant authority
  • The person who is the subject of the order
  • Any other person

Where an application is made by the subject of the SCPO, the High Court may only ‘entertain’ the application if he considers that there have been a change of circumstances.

Varying a SCPO

An application to vary a SCPO may be made by:

  • The relevant applicant authority
  • The person who is the subject of the order
  • Any other person

The person subject to the order can apply for a variation but only if they can satisfy the court that there has been a change of circumstances affecting the order.

Additional information

Determining when a SCPO is appropriate 

When granting an application for a SCPO, the court must have reasonable grounds to believe that an order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime. It must be shown that there are reasonable grounds to believe that there is a real risk that the individual will be involved in further conduct falling within the Act from which the public require protection.

In cases where an order is being considered in respect of a defendant following conviction, the prosecutor should first consider what other ancillary orders may be available which would achieve the desired aims. A SCPO should not be seen as a means of adding to a defendant’s sentence. The following questions should be considered:

  • In the circumstances, are there reasonable grounds to believe there is a real risk that this defendant will be involved in further conduct falling within the Act from which the public requires protection?
  • What is the need for and what will a SCPO add to the sentencing powers that the court already has?
  • Is there a real risk of further serious offending upon release from what will be a long prison sentence or, a risk of further serious offending while serving such a sentence.
  • The imposition of an order should not be a normal part of the sentencing process but rather an exceptional course in particular circumstances.

A SCPO can be made for a maximum period of 5 years and must state when it starts and ends. The five year limit does not prevent the making of a subsequent order, in the same or different terms. The new order can be made in anticipation of the original one ending in order to ensure continuity.

 

Travelling to the US – Do I need a visa?

Aim of this page

This section looks at the Visa Waiver Program (VWP) and sets out how to determine whether your offence makes you eligible to travel to the US under the VWP or whether you’ll need to apply for a visa.

It forms part of our information on travelling to the US including: 

Why is this important?

For anybody considering travelling to the US, it’s important to know whether you would be eligible to travel under the Visa Waiver Program (VWP) or if you will need to apply for a visa through the US Embassy.

Generally, those travelling to the US for leisure or business stays of less than 90 days can travel under the VWP. However, if you’ve been arrested or convicted of certain offences, you may not be eligible.

The Visa Waiver Program (VWP) or visa?

The VWP enables nationals of participating countries, including the United Kingdom, to travel to the US for tourism or business stays of 90 days or less without obtaining a visa.

You are able to travel under the VWP if you’ve received an authorisation to travel under the VWP through the Electronic System for Travel Authorisation (ESTA). The ESTA process asks questions regarding criminal convictions. If you answer ‘yes’ to any of the questions asked during the ESTA process, you will be told that you are not eligible to travel under the VWP and will have to apply for a visa instead.

What questions are asked on the ESTA form?

The questions asked about criminal convictions on the ESTA website are as follows:

  1. Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?
  2. Have you ever violated any law related to possessing, using or distributing illegal drugs?
  3. Do you seek to engage in or have you ever engaged in terrorist activities, espionage, sabotage or genocide?
  4. Have you ever committed fraud or misrepresented yourself to obtain, or assist others to obtain, a visa or entry into the United States?

The ESTA form can be accessed online.

There is an online ‘wizard’ on the London US Embassy website which can be used to help you to determine your eligibility to travel under the VWP. In the section on criminal convictions it asks:

Have you ever been arrested or convicted for any reason in any country, even if the arrest did not lead to a conviction, or do you have a criminal record? Please note: the Rehabilitation of Offenders Act does not apply to US visa law. If you are unsure, press YES.”

If you select “No”, you are able to proceed using the ESTA process. If you select “Yes”, the following text is displayed:

Some applicants are uncertain how to answer the question, “have you ever been arrested?”

In general, minor motoring offences outside the US that were disposed of by paying a ticket by mail have no bearing on admission to the United States. Travellers with minor traffic offences that did not result in their arrest and/or conviction for the offence may travel visa free, provided they are otherwise qualified. If you are not sure whether or not you are eligible to travel visa free, the only way to resolve this question would be to apply for a visa. The Embassy and the Live Operator Information Service cannot provide any further guidance on this matter until you appear in person before a consular officer.

If a traffic offence occurred while you were in the United States, and you have an outstanding fine against you, or if you did not attend your court hearing, it is possible there may be a warrant out for your arrest and you will experience significant problems when applying for admission at the US port of entry. The Embassy cannot assist you in this regard. You must resolve the issue before travelling, by contacting the court where you were to appear. If you do not know the address of the court then information is available here.

Is the full extent of your history of legal violations limited solely to minor traffic offences that did not result in your arrest and/or conviction?”

If you answer “Yes”, you are able to proceed using the ESTA process. If you answer “No” to the further questions, it states the following:

Not Eligible for Travel on Visa Waiver Program

You are not eligible to travel on the Visa Waiver Program, and must possess a valid visa for entry into the United States.

Please note that the Rehabilitation of Offenders Act does not apply to US visa law. If you attempt to travel without a visa, you may be refused entry into the United States at your personal expense.”

The flow chart below may further help you to establish your eligibility to travel under the VWP.

Follow the flow chart to determine whether you can travel on an ESTA

 

How do I classify my own conviction for the purposes of the VWP?

You will notice that the question asked by the ESTA process differs from that mentioned in the Visa Wizard section.

Through the Visa Wizard section of the US Embassy website, a general question is asked about any arrests or convictions, and if you answer “Yes” it advises that you have to apply for a visa.

However, through the ESTA process, the question that is asked relates to arrests or convictions:

  1. Resulting in serious damage to property, or serious harm to another person or government authority (these types of offences were previously referred to as crimes of moral turpitude)
  2. Violating any law related to possessing, using or distributing illegal drugs.

Therefore, if you have been arrested or convicted, but for an offence that isn’t covered by the questions asked on the ESTA, it isn’t clear whether you have to apply for a visa or not.

Under the eligibility to travel under the VWP, it states you are able to travel under a VWP if you have received an authorisation to travel under the VWP through the Electronic System for Travel Authorisation (ESTA). Therefore, whether you are able to travel under the VWP depends on how you answer the question that is put to you as part of the ESTA process.

It would therefore appear that so long as you can answer “No” to the question asked as part of the ESTA process, you are able to travel under the VWP.

There is an anomaly here between the ESTA and the on-line guidance. We’ve highlighted this to the Embassy but we would suggest that you work from the questions on the ESTA form.

What does ‘serious damage to property, or serious harm to another person or government authority’ mean?

The majority of individuals unable to travel under the VWP will be unable to do so because they have been arrested or convicted of a crime involving “serious damage to property” or “serious harm to another person or government authority.” These types of offences were previously referred to as ‘crimes of moral turpitude’ as part of the ESTA process and will still be referred to in this way when applying for a visa.

Moral turpitude is a legal concept in the United States that refers to conduct that is considered contrary to community standards of justice, honesty or good morals. You are potentially ineligible for a visa under Section 212(a)(2)(A)(i)(1) of the Immigration and Nationality Act if you have been convicted of a statutory offence which involves moral turpitude.

Crimes involving moral turpitude are grouped into three general categories. They are:

  1. Crimes committed against property (for example, arson, blackmail, burglary, larceny, robbery, fraud, false pretences, theft, receiving stolen property);
  2. Crimes against governmental authority (for example bribery, tax evasion, perjury, fraud against government functions); and
  3. Crimes committed against persons, family, relationships and sexual morality (for example, serious assaults, gross indecency, lewdness, contributing to the delinquency of a minor, murder, voluntary manslaughter, rape).

We have put together a list of offences detailing how they are categorised:

Download the list of offences which can/cannot be classed as a crime involving moral turpitude (CIMT)

The presence or absence of moral turpitude is determined by the nature of the offence, and not by the acts underlying the conviction. Furthermore, the degree of punishment meted out does not determine whether the crime is a ‘crime involving moral turpitude (CIMT);” crimes punished by only fines or even less have still been held to be CIMT.

The determination of whether a crime is a CIMT is a matter of US law, regardless of where the conviction took place. Whether or not a US or foreign conviction is a CIMT rendering an individual ineligible for a visa or inadmissible to the US is a complex question requiring careful legal analysis of the facts and the law. In important situations, you may benefit from seeking the advice of a specialist US immigration legal firm.

What does ‘illegal’ drugs mean?

You are ineligible to travel under the VWP if you have ever violated any law related to possessing, using or distributing illegal drugs.

The term ‘illegal use of drugs’ means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 801 et seq). Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorised by the Controlled Substances Act or other provisions of Federal law.

The term ‘drug’ means a controlled substance, as defined in schedules I-V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

Annex – Section 212 of the Immigration and Nationality Act

Below is an extract of the Immigration and Nationality Act. This sets out the general classes of people ineligible to receive visas, ineligible for admission, and the process of waivers of inadmissibility.

*(2) Criminal and related grounds –

(A) Conviction of certain crimes –

(i) in general – Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of –

(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) Exception – Clause (i)(I) shall not apply to an alien who committed only one crime if –

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

(B) Multiple criminal convictions – Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

Discuss this with others

Read and share your experiences on our online forum.

Key sections include:

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 below can be found here.

More information

  1. For practical information – More information on travelling to the US
  2. To read personal stories – You can read stories about this posted on theRecord, our online magazine under the tag of travelling to the USA
  3. To discuss this 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. Send your feedback directly to us
  2. Discuss your views and experiences with  others on our online forum
  3. Share your story by contributing to our online magazine, theRecord

This page was last fully reviewed and updated in July 2017. If you’ve spotted anything that needs updating, please let us know by emailing the details to advice@unlock.org.uk.

 

 

Hiring a car if you have a criminal record

This is a short information page about hiring a car if you have a criminal record. The aim of this page is to set out what you need to disclose to a hire company and what problems you may encounter if you have a criminal record. It forms part of our information section on motoring offences.

In the UK, car rental companies are legally required to check your full driving licence before they will allow you to hire a car. With the abolition of paper licences, you will need to provide the hire company with an access code from the DVLA to enable them to check the details of your licence. Your licence will disclose any unspent motoring convictions.

If you have an endorsement on your licence, it will remain unspent under the Rehabilitation of Offenders Act for 5 years and you will need to disclose it.

Car hire companies generally take the view that:

  • If you’ve been disqualified for more than 12 months for dangerous/drink driving, you will be unable to hire a car until your conviction becomes spent.
  • If you’ve been disqualified for less than 12 months for speeding or the accumulation of points then you should be able to hire a car from the date your disqualification ends (even though your conviction may not be spent)
  • If you’ve had less than 11 points on your licence over the previous 3 year period, then you may be accepted to hire a car.

From research we’ve carried out, very few car hire companies ask about non-motoring convictions, but we would always recommend that you check the small print of any hire agreement or insurance policy.

Under no circumstances do you need to disclose spent convictions when hiring a car.

If you’re looking to rent a car outside the UK then the restrictions are likely to vary from country to country.

More information

  1. For practical information – More information can be found on motoring offences and insurance
  2. To discuss this 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.

Applying to a court to end a court order

Aim of this page

This page explains what it means to be given a court order, especially one that doesn’t have an end date (known as an indefinite order). It also outlines how you can apply to change (vary) or cancel (discharge) an order, and what steps you can take to improve your chances of success.

While the focus is on Sexual Offences Prevention Orders and Sexual Harm Prevention Orders, much of the advice here also applies to other types of court orders.

It is part of our information on understanding your criminal record and sexual offences.

Why is this important?

Court orders can seriously affect your private and family life. This isn’t just because of the restrictions they place on you, but also because, while the order is active, your conviction cannot be considered “spent” under the Rehabilitation of Offenders Act 1974.  As a result, you would have to disclose your conviction if asked – for example, when applying for a job or financial services.

If you think the conditions of your order are too strict, or if you’d like the end date changed, you may want to apply to have the order varied or cancelled.

What do we mean by a court order?

A court order is an official decision by a court that tells someone what they must or must not do. These are often called ancillary orders and are usually given alongside other punishments.

Some orders, like compensation orders, are meant to repair the harm caused. Others, such as restraining orders, aim to stop future crimes or protect victims.

In some cases, a judge must issue an ancillary order – for example, someone guilty of causing death by dangerous driving must be disqualified from driving. In other cases, the judge decides whether to give an order, depending on how serious the crime is. In those situations, the prosecution usually asks the judge to make the order.

There are a number of different ancillary orders including:

  • Criminal Behaviour Orders
  • Compensation Orders
  • Confiscation Orders
  • Disqualification from driving
  • Football Banning Orders
  • Forfeiture Orders
  • Restraining Orders
  • Sexual Harm Prevention Orders

What are the implications of having a court order?

Under the Rehabilitation of Offenders Act, court orders can affect when a conviction becomes spent (i.e. no longer needs to be disclosed).

  • A compensation order is only spent once it’s been paid in full.
  • If an order has a set time limit (e.g. 2 years), it becomes spent after that time.
  • If there’s no time given, the default period is 2 years.
  • If the order is indefinite (it has no end date), it will never be spent unless you go back to court to change or cancel it.
  • An indefinite order also means that any other sentence given at the same time will also never be spent.

For example: In court, Robert was convicted of stalking. He was given a fine which would usually mean his conviction would be spent after one year. However, in addition to the fine, he was given an indefinite restraining order meaning his conviction would never be spent until such time as the order was changed or cancelled.

Changing or ending a court order

Anyone named in a court order – including you, the prosecution, or someone protected by the order – can ask the court to change or cancel it. This is allowed by law.

How to apply

To ask for a change (called a “variation”) or to cancel (called a “discharge”) the order:

  • Write to the court that issued the order. Explain that you want to change or cancel it, describe how your situation has changed since the order was made, and why you think the order should be changed or ended.
  • If needed, the court might ask for a Victim Personal Statement to understand what has happened since the order was put in place.
  • You’ll usually get a chance to speak at the court hearing.

Sexual Offences Prevention Order (SOPO) and Sexual Harm Prevention Orders (SHPO)

You can apply to change or cancel a SOPO or SHPO at any time. However, within the first 5 years after it’s made, the court can only fully cancel the order if the local Chief Constable or Police Commissioner agrees. During those 5 years, the court can still change or shorten the order without police permission. After 5 years, the court can cancel the order completely without needing police approval.

If you want to change or cancel and order, it’s best to talk to your Public Protection Unit police officer first. Sometimes changes can be agreed on together before going to court.

What information will I need to include in an application?

When deciding what restrictions to include in an order, the court should make sure that it:

  • Minimises the risk of harm to the public or specific people
  • Is proportionate and necessary
  • Can be enforced effectively

If you think any condition on your order is unfair, unnecessary, or impossible to enforce, you should explain why. For example, if you are trying to find a job, a ban on using the internet would be a big problem.

If you want to change this condition, you should explain the kind of job you want and show examples of useful job websites.

If you’re receiving Jobseekers Allowance or Universal Credit, provide proof of your Job Seekers Agreement and explain how hard it is to apply for jobs without internet access.

If you want to cancel the order completely, you can improve your chances by:

  • Showing that you have sought help for any problems that led to your offending.
  • Explain positive changes you’ve made like moving away from bad influences, getting a job or improving relationship.
  • Proving you have followed all rules of the Sex Offenders Register and the requirements of your SOPO/SHPO.
  • Asking your supervising officer for a ‘clean bill of health’ from police inspections of your devices after any unannounced inspection visits.

Will I need to use a solicitor?

Changing or cancelling a court order is done through a civil court, not a criminal one. This means you can often represent yourself, and court staff can help guide you through the process.

Sometimes, solicitors can represent you using the same legal aid certificate from the original court hearing.

Details of organisations that offer legal advice can be found here.

Discuss this with others

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.

  • Ministry of Justice – Government department who have responsibility for the Rehabilitation of Offenders Act

For information

  1. For practical information – More information can be found on our sections on sexual offences and understanding your criminal record
  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 updated in June 2025.

 

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