Issued by the court – contact the administering court.
Does it involve guilt?
Not necessarily. An order may be made in relation to ‘any person who has been convicted, found not guilty by reason of insanity or found to be under a disability and to have done the act charged or cautioned for an offence listed in either Schedule 3 or 5 of the Sexual Offences Act 2003.’
A SHPO may be given in Court at the time of conviction or imposed by a Court at a later date upon an application made by the police or other agency.
Is it recorded on the Police National Computer (PNC)?
Yes.
Is it classed as a conviction?
Yes. If it is given at conviction it is regarded as a ‘relevant order’.
Length of the order
A SHPO may have effect:-
For a fixed period of at least 5 years
Until further order
How long will it be on my record?
It will remain on the Police National Computer 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, e.g. 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 basic checks.
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 SHPO include?
A SHPO prohibits an individual from doing anything described in the order. The order may specify that some of its prohibitions have effect until further order and some for a fixed period.
Prohibitions must be necessary for the purpose of:-
Protecting the public or any particular member of the public from sexual harm, or
Protecting children or vulnerable adults generally, or any particular children or vulnerable adults from sexual harm outside of the UK
The decision of the Court of Appeal in R v Smith and Others (2011)[EWVA 117] reinforces the need for the terms of a SHPO to be tailored to the exact requirements of the case. SHPO’s may be used to limit and manage internet use, where it is considered proportionate and necessary to do so. The behaviour prohibited by the order might well be considered unproblematic if exhibited by another member of the public – it is the individual’s previous offending behaviour and subsequent demonstration that they may pose a risk of further such behaviour, which will make them eligible for an order.
The order may include only negative prohibitions, there is no power to impose positive obligations.
Notification requirements
Where a SHPO is made in respect of an individual who was subject to notification requirements under the Sex Offenders Act 1997 immediately before the making of the order, and the individual would cease to be subject to these notification requirements while the order has effect, the individual will remain subject to the notification requirements.
Where a SHPO is made in respect of an individual who was not subject to notification requirements under the Sex Offenders Act 1997 immediately before the making of the order, the order causes the individual to become subject to the notification requirements under the Sex Offenders Act from the making of the order until the order ceases to have effect.
Discharge, variation and renewal of an order
An order cannot be discharged within 5 years of it being made without the agreement of both the individual and the police.
An application can be made to have the order varied by either the police or the individual concerned. It may be necessary to vary the order as a result of:-
deletion of unnecessary conditions
addition of supplementary conditions
A renewal may be necessary where the original order is close to expiry and the police have cause to believe that the individual continues to pose a risk.
When deciding whether to issue a SHPO details of the offence are likely to be a key factor in the courts decision, together with the individual’s previous convictions and the assessment of risk presented by the National Probation Service in any pre-sentence report. The court may take into consideration the range of other options available to it in respect of protecting the public. The court may want to consider:
Would an order minimise the risk of harm to the public, or to any particular members of the public?
Is it proportionate?
Can it be policed effectively?
Any breach of the order is a criminal offence punishable by a maximum of five years imprisonment.
Sexual Risk Order (SRO)
Who is it issued by and how can I contact them?
Issued by the court – contact the administering court.
Does it involve guilt?
No. It is made in relation to an individual who has not been convicted or cautioned of any offence but who is thought to pose a risk of harm.
Is it recorded on the Police National Computer (PNC)?
Yes. A facility is available on the PNC which allows an entry to be recorded which does not constitute a criminal record but is available for police information.
Is it classed as a conviction?
No – unless the SRO is breached.
How long will it be on my record?
Although an SRO does not result in a criminal record, the information can still be used and taken into consideration if further offences are committed.
When does it become spent?
N/A
When do I have to declare it?
An SRO is not a caution or a conviction, so isn’t formally covered by the Rehabilitation of Offenders Act.
Is it disclosed on DBS checks?
Not on standard checks.
It might be disclosed as part of an enhanced check in the ‘relevant information’ section, i.e. the offence has a bearing on the kind of work you are applying for.
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 an SRO include?
The order may prohibit the person from doing anything described in it. This includes preventing travel overseas. Any prohibition must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm.
Notification requirements
The SRO does not make the individual subject to the notification requirements for registered sex offenders. However, it does require the individual to notify the police of:-
Their name
Their home address
This information must be notified within 3 days of the order being made or whenever the information changes.
Discharge, variation and renewal of an SRO
Discharge – An order cannot be discharged within 2 years of it being made without the agreement of both the police and the individual concerned.
Variation – Applications can be made by either the police or the individual concerned for the purposes of deleting unnecessary prohibitions or adding supplementary conditions
Renewal – A renewal of the order may be necessary where the original is close to expiry and the police have cause to believe that the individual continues to pose a risk.
Other information
The new Sexual Risk Order replaces the Risk of Sexual Harm Order.
An Sexual Risk Order may be applied for on a free standing application to the magistrates court by the Chief Officer of Police or the Director General of the National Crime Agency. An SRO may be made in respect of any individual who has:
Done an act of a sexual nature, and
As a result of which, there is reasonable cause to believe that it is necessary to make an order to protect the public from harm.
Any breach of the order is a criminal offence punishable by a maximum of five years imprisonment.
Self-disclosure statements (often referred to as a “disclosure letter”)
We’re really keen to show how good self-disclosure statements can vary in their style and approach. We think a really good way to do this is to get some real-life ones that have been used successfully. So, if you’ve written your own statement which you went on to use and that resulted in you being offered a job, we’d love you to help us with this. Find out more here.
Aim of this information
The aim of this information is to explain how a disclosure statement can help with “when and how“ to disclose to an employer when applying for work. It also provides some examples of what should be included in a disclosure statement/letter. This information is part of our disclosing to employers section.
Why is this important?
However you choose to disclose your criminal record to an employer, be it face to face or in writing, it’s important that you are clear about what you need to disclose and how you are going to disclose it.
A disclosure statement can often help to get your thoughts into some kind of order which you can use as a prompt when disclosing face to face or to hand over to an employer as evidence of what you’ve disclosed. The statement should:
Give details of your offence and the circumstances surrounding it.
Highlight what makes you suitable for the role, i,e, your previous skills and experience.
Demonstrate how you have moved on or changed since your offence.
Although they’re often referred to as a “disclosure letter”, we avoid that phrase as it suggests they should be submitted as a letter. As you’ll see, that’s not always the best way forward.
When should I use a self-disclosure statement?
Generally, our view is that if you’re disclosing your criminal record to an employer, discussing the details face-to-face is the most effective way of explaining the circumstances. However, there are a number of reasons why a self-disclosure statement can be useful to have completed in advance of applying for work.
You might be asked for a written statement as part of the application process.
You may be more comfortable writing rather than talking about your criminal record.
You may be asked at interview, and having the facts to hand can come in useful in helping you to discuss the circumstances around your record.
We normally recommend that however you disclose your criminal record, it is useful to provide the employer with some brief factual details of your criminal record in writing (even if you are disclosing verbally), so that you have evidence of what you’ve disclosed. This can also help them in making a decision. Make sure that you keep a copy of this for your own records.
For more information on writing a self-disclosure statement, visit our ‘disclosing to employers’ section.
Examples of self-disclosure statements
These examples have been written for guidance purposes only and should not be copied.
Self-disclosure statements need to be tailored to the specific vacancy you are applying for.
They should be personal to your own situation and give a genuine account of any mitigating factors that led to your conviction and highlight what you have achieved since.
There is no ‘perfect template’ for a self-disclosure statement.
Person one – Peter
Peter has a recent unspent conviction for GBH and is applying for a job in a supermarket.
Example one – Asked at application and preparing for interview / Brief factual details
This example is designed to help Peter when he has been asked at application and offered to provide more details at interview. It is a helpful way for Peter to set out the facts and any important points that he would want to explain at interview, but without going into too much detail at an early stage in the recruitment process. Peter could also give it to the employer as a factual record after a face-to-face conversation.
Statement about my criminal record in relation to my application for the post of supermarket checkout operator
I wanted to take this opportunity to provide some further details about my unspent criminal conviction.
Just over two years ago, in XXXX, I received an eight-month prison sentence for grievous bodily harm. The conviction came about during an argument with my girlfriend’s ex-husband. It is my only conviction.
I take full responsibility for my actions and admitted the offence as soon as I was arrested. Whilst in prison, I attended a programme specifically for people convicted of violent offences and this enabled me to get a better understanding of the factors that triggered my anger and also taught me how to manage my emotions.
I deeply regret what I did but some good has come out of it. I’ve seen the impact that my conviction has had on my family and I know that I am now better able to deal with any situation I find myself in, in a much more constructive and calm way.
I would welcome the opportunity to explain this in more detail in a face-to-face discussion if you would like more information about the circumstances leading up to my conviction or what I’ve done since.
Peter Jones
[Date]
Example two – Asked after interview or job offer / Detailed disclosure in writing
This example is designed to help Peter when he has been asked after interview or job offer and he’s been asked to provide details. It is a helpful way for Peter to go into more detail given the later stage in the recruitment process. It can also be used if the employer is going to carry out some kind of risk assessment on Peter.
Dear Miss Wallington,
RE: Application for the post of supermarket checkout operator – Self-disclosure statement
Further to my recent interview, I would like to provide details of my unspent conviction. I can confirm that just over two years ago, in XXXX, I received an eight-month prison sentence for grievous bodily harm.
The conviction came about during an argument with my girlfriend’s ex-husband. There was a physical altercation which ended with me hitting him.
I take full responsibility for my actions and admitted the offence as soon as I was arrested. Whilst in prison I attended a programme specifically for people convicted of violent offences and this enabled me to get a better understanding of the factors that triggered my anger and also taught me how to manage my emotions.
I deeply regret what I did but some good has come out of it. I’ve seen the impact that my conviction has had on my family and know that I am now able to deal with any situation I find myself in, in a much more constructive and calm way.
I understand that you have a responsibility towards your staff and customers and that my criminal record may cause you some concern. However, I hope this letter gives you some insight into the positive changes I have made to my life since my conviction. If you feel it would be helpful to discuss this face-to-face, I would be happy to do so.
Yours sincerely,
Peter Jones
Person two – Amy
Amy has a spent conviction for over-payment of benefits and is applying for a job as a social worker.
Example one – Asked at application and preparing for interview / Brief factual details
This example is designed to help Amy when she has been asked at application and offered to provide more details at interview. It is a helpful way for Amy to set out the facts and any important points that she would want to explain at interview, but without going into too much detail at an early stage in the recruitment process. Amy could also give it to the employer as a factual record after a face-to-face disclosure.
Statement about my criminal record in relation to my application for the post of social worker
I wanted to take this opportunity to provide some further details about my unspent criminal conviction.
Approximately 8 years ago I received an eight-month community order for an over-payment of benefits.
Although this conviction is now ‘spent’ under the Rehabilitation of Offenders Act 1974, due to the role that I have applied for I wanted to take this opportunity to provide some further details as it appears on my enhanced DBS check. There are circumstances relating to the offence that I would be happy to go into in more detail.
As part of my community order, I was required to attend a money management and budgeting course which has helped me to manage my finances more effectively.
I take full responsibility for my actions and pleaded guilty immediately at the earliest opportunity. I deeply regret what I did but some good has come out of it. I have been able to pay back the over-payment and the courses I took through probation have enabled me to be more in control of all aspects of my life.
As my application hopefully shows, I have a good, recent work record and hope that I can be judged on this.
Amy Jones
[Date]
Example two – Asked after interview or job offer / Detailed disclosure in writing
This example is designed to help Amy when she has been asked after interview or job offer about her criminal record and she’s been asked to provide details. It is a helpful way for Amy to go into more detail given the later stage in the recruitment process. It can also be used if the employer is going to carry out some kind of risk assessment on Amy.
Dear Mr Clarke,
RE: Application for the post of social worker – Self-disclosure statement
Very many thanks for your letter with a conditional offer for the post of social worker.
Up until this stage of the process, I have not been asked to provide any criminal record details. However, prior to my enhanced DBS check being carried out, I wish to disclose that approximately 8 years ago I received a conviction for an over-payment of benefits. In total, I was overpaid by £4150 over a six month period which resulted in 12 separate offences as part of my conviction.
At the time of my offence I was a single parent struggling to find a job after completing my degree. I was claiming benefits but managed to secure a part-time job in a local restaurant. This part-time work did not affect my benefit entitlement in any way. However, when the job became full-time, I didn’t disclose my change of circumstances to the Department for Work and Pensions and continued to receive benefit payments.
I take full responsibility for my actions and pleaded guilty immediately at the earliest opportunity. As part of my community order, I was required to attend a money management and budgeting course which has helped me to manage my finances more effectively.
I deeply regret what I did but the probation courses made it possible for me to take control of my finances allowing me to pay back the £4150 much quicker than I had been asked to do. I am a lot more confident in dealing with money now and, having addressed the issues that led to my offending, I don’t believe that I pose any risk to your organisation. This conviction is my only one and, in the eight years since it happened, I haven’t been in any further trouble.
I hope this letter provides you with an insight into the circumstances surrounding my conviction and demonstrates the steps I have taken to ensure that I am at no risk of reoffending. If you feel it would be helpful to discuss this further face-to-face I would be happy to do so.
Yours sincerely,
Amy Jones
Person 3 – Tony
Tony has an unspent conviction for a non-contact sexual offence. He is applying for a job in retail.
As sexual offences cover a wide range of very different behaviour, it is important for Tony to give an employer a better understanding of the nature of his offence. The stigma and shame around sexual offences can make it difficult for some people to talk about and a written statement can be a starting point for further discussion.
Statement about my criminal record in relation to the role of customer service advisor
As stated on my application form, I have an unspent conviction for a non-contact sexual offence and I would like to take this opportunity to provide you with further information.
Given the serious and sexual nature of my offence, I’m sure you must have concerns about the risks of employing me – both for your company’s reputation and for the safety of your staff. I would like to assure you that my offending behaviour is in the past and I deeply regret what I did.
My issues stem from a sexual addiction problem; using pornography to cope with stress and feelings of inadequacy in my life. As will all addiction problems it became more extreme over time which led to my taking greater risks to get greater thrills. This ultimately led to me downloading and viewing indecent images of children.
I knew what I was doing was wrong and when I shut down my computer I felt incredible guilt. But, the next time I felt stressed and anxious, I remembered how looking at the images had made me forget my problems and feel better. This became my way of coping with any problem. I can categorically state that at no time did I ever want to make contact with a child or young person.
The more time I spent online, the worse my relationship with my partner became and the more stressed and isolated I felt. Unfortunately, I felt too ashamed and scared to reach out for help. When I was arrested, the only thing I felt was relief; an opportunity to find help and change.
During my time in prison and since my release, I have attended rehabilitation programmes and had excellent help and support from prison and probation services. I now have a greater understanding of the causes of my behaviour, and I have been able to address these issues using both one-to-one and group work. I am able to recognise situations and moods which, in the past might have led to offending behaviour and I have learnt strategies for dealing with these.
I have received a lot of help and support from my family and friends and I am deeply ashamed of the impact my offending has had on them. This has added to my determination to concentrate on a positive, offending-free life.
I am happy to answer any questions or provide you with additional information should it help you in reaching a decision.
If you are under consideration for inclusion in either the children’s or adult’s barred lists, the Disclosure and Barring Service (DBS) may offer you the chance to explain why it would be inappropriate or disproportionate for you to be included in one or both lists. This information sets out how you can go about making representations, how to request a review of a decision and how to appeal a decision.
Why is this important?
If an employer or organisation has concerns that a person has caused harm, or poses a future risk of harm to vulnerable groups, they will be referred to the DBS.
As part of the barring decision, the referred person can make representations. It is important that anybody who finds themselves in this situation does make representations to the DBS to ensure that their case is considered in the fairest and most balanced way.
Introduction
If the DBS writes to you to inform you that you may be barred from working/volunteering in regulated activity with children and/or adults, you will be able to make representations. This is an important part of ensuring that fair, consistent and thorough barring decisions are made.
The DBS makes decisions as to whether a person should be barred if they have:
Been convicted or cautioned for certain offences
Harmed a child or vulnerable adult or when the DBS considers the person poses a risk of harm to a child or vulnerable adult.
Test for regulated activity
The DBS can only consider a person for inclusion on a barred list where that person is, has been, or might in the future be working with vulnerable groups in regulated activity. You will be able to make representations if you believe that you don’t meet the test for regulated activity. The only exception to this is if you have been cautioned or convicted of an autobar offence with no right to representations.
Making representations
What are representations?
Representations provide an opportunity for you to explain why you feel it would be inappropriate or disproportionate for the DBS to include you in one or both barred lists. You might consider making representations if the DBS informs you that you could be barred from working in regulated activity with children and/or adults. Or you can make representations if you know that a referral has been made about you.
How do I make representations?
It is expected that the majority of people who make representations will do so in writing. However in the interests of fairness and equality, and to protect a persons rights under the European Convention on Human Rights, the DBS have recently introduced a system whereby arrangements can be made to hear oral representations.
A link to the DBS oral representations guide can be found here.
The DBS is unable to provide help in preparing individual representations, this will need to be sought from a solicitor, carer, family member, trade union representative, professional association, or other advisory body. If you decide to have anyone other than yourself submit your representations, and you wish for the DBS to liaise directly with another party rather than with yourself, then you will need to enclose written authority signed by yourself to this effect.
What do I say?
When making your representations you may include, but are not restricted to, any of the following:
An explanation of your offending behaviour.
Any factors that may mitigate your offending behaviour.
A copy of your pre-sentence report, Offender Assessment System (OASys) report, Judges sentencing remarks, Probation Service reports or Social Services assessments.
Any relevant reports from medical experts. Please note that if you decide to provide a report from a medical expert as part of your representations then the DBS may ask you to attend an assessment by an independent medical expert of their choosing.
Any relevant specialist assessments completed by other professionals
Details of your career
Professional references or testimonials
Why you think you pose no current or future risk of harm to vulnerable groups, including children.
Your representations should not challenge police cautions or convictions unless these have been formally overturned. If you are, at the time of making your representations, also disputing or appealing against your caution or conviction, then this will not be taken into account until such time that the result of that appeal is known. Your representations also cannot challenge findings of fact made by a competent body (A competent body is a professional regulatory body named in the Safeguarding Vulnerable Groups Act 2006 or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007).
If you include any original documentation that you wish to be returned to you, then you should clearly state this within your representations.
How long do I have to make representations?
The DBS will allow you 8 weeks from the date of their notification letter to you to make your representations. However, if you feel that you need more time you must write to them detailing why you feel an extension is needed. Once they receive your request, they may consider granting such an extension. The DBS is unable to extend the representations period indefinitely and is unable to wait for appeals on cautions or convictions should they be on going. Where new information is subsequently made available (such as the outcome of an appeal hearing), the DBS is able to review the decision in light of the new information.
What happens once I have sent my representations?
Once the DBS receives your representations, the information provided is assessed alongside the other information they hold about you. They may then seek additional information such as police reports etc. Any information that is used to make a decision about including you in a barred list will be disclosed to you so you may make comments before they make a final decision about your case. Upon receipt of your representations, the case is reassessed and a final decision will be made, and you will be sent further written notification of this.
What if I do not make any representations?
You are not under any obligation to make representations but it is important to understand that, if you do not provide any evidence to support your case not to be barred, then the DBS will make a final decision based on the information it already holds on you from elsewhere. Inclusion on a DBS barred list will last for your lifetime unless you appeal or seek review. Making representations is an opportunity for you to give your interpretation of the circumstances that led to the referral.
If you are cautioned or convicted of an autobar offence (with the right to make representations) and you chose not to, then by law the DBS has no discretion and must include you in one or both lists, after the 8 week representations period has ended. The list you are placed on will depend on the circumstances of your offence.
For further DBS guidance on making representations see here.
Reviews
There are three powers under which the DBS may grant permission for your inclusion in one or both barred lists to be reviewed.
Where your role does not meet the test for regulated activity
Anyone included in a barred list prior to September 2012 may seek a review at any time if they consider that, within the revised definitions of regulated activity from that date, they are not, have not been nor might in future be engaged in regulated activity relating to vulnerable groups, including children.
Rather than a review of whether you can or cannot undertake regulated activity, this is a review of whether the bar is necessary, given you would not be carrying out regulated activity in the future. You should be mindful that should you be removed from either list purely due to not meeting the test for regulated activity, and in the future apply for a regulated activity role, you may be considered for inclusion on either list.
Note: This power does not apply to those who were barred following automatic barring offences without right to make representations.
Where certain statutory conditions are met
You may seek a review of your inclusion in a barred list at any time if you can provide DBS with evidence of:
Information which is now available which was not at the time of your inclusion in the list;
Any (material) change in circumstances affecting you since barring ; or
An error by the DBS.
Where you request a review after a minimum barring period
Whether you have made representations on initial barring or not, once your case has been concluded you may ask the DBS to review your inclusion in either or both barred lists after a minimum period has elapsed. The minimum period will have been stated in your individual notification letter. These periods are based on your age when barred:
Under 18 years 1 year
18 to 24 years 5 years
25 years or over 10 years
A barred person is required, under this power, to satisfy the DBS that their circumstances have changed since they were initially barred or since they last applied for a review. Evidence of change might include but is not restricted to:
Specialist assessments
Reports from medical experts, the Probation Service or any other professional
Evidence that they have successfully appealed a criminal conviction
Details of any relevant work (paid or voluntary) they have undertaken since their inclusion in the barred list(s)
Evidence of a change in personal circumstances e.g. relationship history
Any factors that might explain what happened
Testimonials (character statements)
Any supporting statement should not challenge findings of fact made by competent bodies – e.g. statutory regulatory bodies, nor challenge police cautions or convictions.
Irrespective of the grounds for applying, you may only apply for this review with the permission of the DBS and this will only be granted if they think that your circumstances have changed enough to justify a review of your case.
If you do not request a review then you will remain included in the barred list(s) indefinitely.
How to seek a review – Who to write to?
Should you wish to seek a review of your inclusion in the Barred List(s) you should make your request in writing quoting your:
DBS (or ISA) Reference Number;
Full name; and
Full address including postcode
In order to ensure that the request for review is being considered under the correct power (detailed above), you should also state under which of these powers you wish your inclusion in a barred list to be reviewed.
Requests should be sent to:
Review Team
Disclosure and Barring Service
PO BOX 181
Darlington
DL1 9FA
In the event the DBS refuses your request to remove your name from a barred list following review, you may seek to appeal to the Upper Tribunal – but only if this is based on an error of law or a finding of fact. The Upper Tribunal will advise whether or not they will hear your appeal on these grounds. More details about the Upper Tribunal can be found here.
There is a right to appeal against most barring decisions, whether you are included in one or both of the barred lists (the only one you cannot appeal is in Autobar cases in which there is no right to make representations against the imposition of a bar). If you feel you have a case to appeal against being place on the barring lists, it is worth appealing. In 2013/14, 35% of people who were permitted to make representations won their appeals (Information from the Independent Review of the Barring Operations of the Disclosure and Barring Service, published July 2016).
This appeal is through the Administrative Appeals Chamber of the Upper Tribunal in England and Wales. There is no right of appeal against the DBS in the event they refuse you a review. Any appeal may only be made with the prior permission of the Tribunal and on the grounds that the DBS have:
Made an error in law relating to your case; and/or
Made an error in finding of fact relating to your case.
You should be aware that both the DBS and the Upper Tribunal have emphasised:
“You should note that section 4(3) of the Safeguarding Vulnerable Groups Act 2006 provides that the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.”
Below you will find links to the 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.
Issued by the court – contact the administering court.
Does it involve guilt?
Not necessarily. An order may be made against any ‘qualifying offender’ defined by section 106(5) as ‘a person who before or after the commencement of the Sexual Offences Act 2003 has been convicted of a Schedule 3 or Schedule 5 offence, found not guilty by insanity or disability and to have done the act charged, or cautioned of such an offence under the Act.’
An order can also be given based solely on alleged behaviour which did not result in any prosecution.
Is it recorded on the Police National Computer (PNC)?
Yes
Is it classed as a conviction?
Yes, If it’s given at conviction it is regarded as a ‘relevant order’.
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, e.g. 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 sexual offences 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 SOPO include?
A SOPO contains prohibitions on an individual doing any of the things stipulated. These might include having unsupervised contact with anyone under the age of 18 or being present in certain places such as schools or play parks.
Any prohibition contained needs to be justified in relation to the risk posed by the individual and must be capable of being policed effectively. A breach of any of the prohibitions in an order is a criminal offence under the Sexual Offences Act 2003 and carries a maximum penalty of 5 years imprisonment. The imposition of a SOPO also requires the named individual to comply with the notification requirements for the duration of the order.
The prohibitions contained in SOPO’s are not standard and are drafted by local police or prosecutors dealing with a case. Guidance to police and prosecutors regarding the use of SOPO’s states:-
“Care needs to be taken that the prohibitions in the order can be justified by the assessment of risk. The questions that need to be asked when considering an order are:-
Would an order minimise the risk of harm to the public or to any particular members of the public?
Is it proportionate?
Can it be policed effectively?” (Hone Office 2004)
For an example of a blank SOPO template used by the Crown Court see here.
Relevant case law
The key terms within the 2003 Sexual Offences Act guidance on when SOPO’s should be made are “necessary for the purpose of protecting the public” and “serious sexual harm”.
The term “necessary” was given clarification by the Court of Appeal when dealing with a restraining order in the case of R v Halloren (2004) [EWCA Crim 233]. It was judged here that the word “necessary” imported a higher threshold than that it was merely “desirable” that an order or any prohibitions within it should be made.
The phrase “serious sexual harm” means serious physical or psychological harm caused by the potential subject of the order committing one or more of the offences listed in Schedule 3 of the Act.
Whilst no standard set of prohibitions exists, those applying for orders and drafting prohibitions should avoid terms which are unnecessarily wide since an order can involve interference with fundamental rights, significantly Article 8 of the ECHR (Right to respect for private and family life). If the necessity of an order or any of the terms within it can be brought into question, the potential for legal action to remove the order exists. This is particularly so where conditions compromise the employability of the individual or where orders have been used to circumvent the usual application procedures for search warrants.
In R v Hemsley (2010) [EWCA Crim 225], the Court of Appeal was particularly critical of the following prohibition within a SOPO
“Not to own or use any computer, electronic, magnetic or optical device which has the capability of storing, receiving or transmitting data without permitting any police constable to enter the premises upon which they are kept in order that they can examine and if necessary remove any such device for the purpose of carrying out such an examination”.
His Honour Judge Nicholas Cooke QC, describes the prohibition in the following terms:
“…an impermissible attempt to confer extensive powers of search and seizure upon the police, pursuant to a statutory provision which only enables an order preventing something from being done to be made. SOPOs should not create a situation in which police powers of search and seizure are extended with none of the procedural safeguards, which usually and importantly regulate the exercise of such powers. Further, given this Applicant’s academic and employment background the effect of this prohibition would be seriously to compromise his employability.”
Judge Cooke also regarded unnecessary those prohibitions that prevented the individual from working, volunteering, or becoming involved in any organisation where contact with children under 16 was likely. In giving his judgement he stated that the “prohibitions seek to address potential concerns which are better left to be dealt with under the Safeguarding Vulnerable Groups Act 2006, the detailed provisions of which are better suited to manage risk in a case of this type than a SOPO”.
It has also been judged inR v Hammond(2008) [EWCA Crim 1358] that the appropriate period of an order should be one equal to the length of time for which the individual is subject to the notification requirements. In some cases, a SOPO has been imposed ‘until further order’ despite the subject only being required to register with the police for a determinate period of between five to ten years. It is not known how many orders made prior to this ruling still contain prohibitions such as these. Those individuals subject to such conditions should seek legal advice from a solicitor.
A much more extensive judgement on the appropriate use of SOPOs can be found in R v Smith & Others (2011) [EWCA Crim 1772]. In summary, the Court of Appeal ruled or confirmed the following;
SOPOs should not duplicate other regimes designed to offer public protection. For example, there is little point in making an order banning an individual from certain types of activity if such a ban is already in place as a result of the provisions of the Safeguarding Vulnerable Groups Act 2006;
SOPOs are not generally appropriate in the cases of those subject to indeterminate sentences (Life or IPP) as the licence conditions attached to such individuals offer a much more reflexive approach to managing risk where appropriate;
That SOPOs should run in tandem with the normal duration of the notification requirements and should not be used to extend notification requirements beyond the point normally prescribed by law (i.e. those whose sentences warrant a determinate period on the ‘register’ should not be made the subject of an indeterminate SOPO);
Blanket prohibitions on computer or internet use are not appropriate. Rather a prohibition should prevent the subject from refusing the police access to a computer in order to inspect it upon request;
Prohibitions on unsupervised contact with children should not be included in the case of those convicted of internet-based offences ‘just in case’ they progress to contact offences. Instead “There must be identifiable risk of contact offences before this kind of prohibition can be justified”;
Police and prosecutors should provide a draft of a proposed order at least two days in advance of any hearing and certainly not on the day of the hearing itself.
Getting a SOPO changed or removed
It has been a common problem for individuals with convictions for sexual offences to have been made subject to a SOPO which exceeds the original intentions of the legislation which introduced the orders. For instance, a number of individuals have been sentenced to a community order for a relevant offence which would originally make them subject to the notification requirements for five years, but were also made the subject of an indeterminate SOPO. This would have the effect of extending the notification requirements beyond the normal duration (as those with a SOPO must also register with the police under the terms of the 2003 Act whilst subject to the order)
It is possible for an individual subject to a SOPO to apply to have it discharged or varied at any time. However, a Court will only have the power to discharge a SOPO totally within 5 years of it having been made with the permission of the Chief Constable/Commissioner of Police in that area. This does not however prevent the court from removing or amending the terms of the order or its duration within that period. After five years, the court does not need the consent of the police to discharge an order in its entirety.
In some cases, solicitors have been able to conduct representation regarding SOPO’s using the same legal aid certificate which related to the client at the time of their original court hearing. However, a number of individuals have successfully represented themselves at hearings in order to have their SOPO amended as appropriate. Those considering doing this should remember that the amendment of a SOPO is achieved through a court acting in a civil capacity rather than as a criminal court – therefore representing oneself is a realistic possibility and court staff should be able to advise individuals on the correct processes.
In any event, the first point of contact for seeking the amendment or discharge of an order should be the nominated Public Protection Unit police officer responsible for the supervision of each case. Whilst the permission of this officer is not required to make an application, it may be that an amendment can be achieved by mutual consent and negotiation in advance of any court hearing.
Applying to discharge a SOPO
An application would be made to the Court where the order was imposed and would need to be heard by a Judge. You would normally need to obtain permission from the Police if you wish to discharge (remove) a SOPO within 5 years of being made. After that you would not need permission. Only certain members of the Police Force or the person who is subject to the order can apply for discharge and there will usually need to be a change in circumstances to justify discharging a SOPO.
Applying to vary a SOPO
This is the most common method of challenging a SOPO. Permission is not usually required and an application would need to be made to the Court where the order was imposed and would need to be heard by a Judge.
Additional information
As of March 2015, SOPO’s have been replaced by Sexual Harm Prevention Orders (SHPO) and Sexual Risk Orders (SRO).
Gambling licence (known as a Personal Functional Licence)
This information is designed to set out how a criminal record can impact on getting a Personal Gambling Licence (known as a Personal Functional Licence).
Why is this important?
Having a criminal record is not a bar to being issued with a Personal Functional Licence. However, it is important that you know what cautions or convictions you need to disclose and how they will be dealt with.
“any individual who performs any function which enables them to influence the outcome of gambling or relates to the receiving or paying of money in connection with gambling will require a Personal Functional Licence.”
When considering the suitability of an applicant, the Gambling Commission will take account of some of the following in deciding whether or not to issue a Licence:-
Identity and ownership – Verification of your identity and any other person relevant to the application will be required by way of copies of your driving licence, passport and NI number.
Finances – Depending on the type of application you are making, you may be required to submit financial documents.
Integrity – Your honesty and trustworthiness will be assessed
Competence – You will need to provide details of your experience, expertise, qualifications and employment history.
Criminality – You will be asked to provide details of your criminal record
Guidance on completing the online Personal Functional Licence application can be found here.
What information about my criminal record do I need to disclose?
Although you are not asked to disclose details of your criminal record, a basic Disclosure and Barring Service check will be undertaken as part of the application process for a Personal Functional Licence (PFL).
How are criminal convictions dealt with?
The Gambling Commission state that they will not automatically refuse your licence application if you have a criminal record. In assessing your application they will take the following into account:-
how serious the offence was
how relevant it is to the role
how long ago it was committed
Have you been granted a licence with a criminal record?
We’re looking for examples of where people with convictions have been granted a licence with a criminal record so that we can include details here to help give people confidence to apply.
If you’ve been granted a licence with a criminal record, please email us or get in touch to let us know the details – your personal details will be kept confidential and anonymous.
For more information
Practical self-help information – More information on basic DBS checks can be found here.
To discuss this issue with others – Read and share your experiences on our online forum
Get involved
Help us to add value to this information. You can:-
Issued by the court – contact the administering court.
Does it involve guilt?
Not necessarily. Since September 2009 any person convicted of any criminal offence can be made subject to a restraining order.
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.
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 are the implications for life in the community?
Restraining orders are usually given in cases where:-
a defendant and witness are known to each other (i.e. domestic violence cases) or
where there is ongoing contact (i.e. the victim runs a local business)
The terms of a restraining order can differ depending on the nature of the offence committed. Sometimes a person will be restrained from approaching the house or place of work of the victim. They may be prohibited from contacting the victim whether in person or by electronic means.
Apart from the obvious need to stay away from and have no contact with the protected party, a restraining order can have other consequences. For example, you may be required to leave your home if you live with the person who receives the Order and visiting your children may become difficult. Any contact could potentially put you in breach of the order and could result in a prison sentence or fine.
Frequently asked questions
If Court proceedings are dismissed following the prosecutions decision to offer no evidence, this is regarded as an aquittal. Should it be felt that a victim still requires some form of protection, a restraining order post-acquittal may be given.
Restraining orders post-acquittal become spent immediately under the Rehabilitation of Offenders Act. It would not be disclosed on basic or standard criminal record checks but may be disclosed under Police Intelligence on an enhanced check, if it is deemed relevant.
DVLA records of driving offences and how they’re shared
Knowing what information an insurance company or an employer is allowed to access and what is likely to be disclosed will ensure that:-
You do not provide more information than third parties are entitled to and risk being unfairly discriminated against or
You do not fail to disclose something which you are legally required to disclose which may result in the loss of a job, a job offer being revoked or insurance policies becoming invalid.
If you hold a paper counterpart, then it no longer has any legal status and should be destroyed. You only need to keep the photo card driving licence.
Paper licences issued before photo cards were introduced in 1998 will remain valid and should not be destroyed.
Any new penalty points (endorsements) issued from the 8th June 2015 will be recorded electronically only. This information will be held on your DVLA driver record and can be viewed online via the DVLA’s Shared Driving Licence Service.
How can I access details of my driving record?
The DVLA’s Shared Driving Licence service will continue to hold information for the same length of time as paper licences did. The length of time a motoring offence stays on your licence is governed by road traffic legislation and will generally be either 4 or 11 years. This is entirely separate to the time it takes for motoring convictions to become spent under the Rehabilitation of Offenders Act.
View your driving record, e.g. which vehicles you can drive
Check any penalty points or disqualifications you have
Create a licence ‘check code’ to share your driving record with a third party, i.e. a car hire company or employer.
How can third parties access details of my driving record?
Employers
If your employer asks you to provide evidence of your driving record (for example, because you drive as part of your job or you will have access to a company car) then it is possible for you to share your driving record by accessing the DVLA Shared Driving Licence Service.
Once you have accessed the DVLA site, it is possible to generate a ‘check code’ which you can then pass on to the person or organisation that needs to view your driving licence details. The code lasts for up to 21 days and you can have up to 15 active check codes at any one time. Alternatively, there are other ways codes can be generated.
For this reason, it is important that if you have motoring convictions still on your driver record but these are technically spent, that you provide the employer with a ‘code’ to enable them to check your driving record (which should remove the spent convictions) rather than you print a copy of your driving record and give it to them (which will might have the spent convictions on there due to DVLA retention periods).
Car hire companies
You should check with individual car hire companies about what information they require. If you are asked for evidence of what vehicles you can drive or confirmation of any penalty points then you can generate a ‘check code’ from the DVLA Shared Driving Licence Service which you can pass onto the hire company. As above, it seems like this will remove details of any offences or endorsements where the motoring conviction the offence relates to has become spent.
Generating ‘check codes’
When generating ‘check codes’, you will be given the option to download a summary of your driving licence record which can be printed off and given to employers or car hire companies. We wouldn’t recommend this option as you will be printing your full record and potentially disclosing spent as well as unspent motoring convictions to employers and car hire companies.
Insurance companies
During 2015 many insurance companies rolled out MyLicence (the brand name for the Insurance Industry Access to Driver Data database) which provides details of:-
Type of licence held
Length of time the licence has been held
Entitlements to drive
Penalty points
Convictions and conviction dates
Disqualifications
It is not currently used by all insurers, brokers or price comparison websites but those who do use it will ask you to provide them with your driving licence number and the driving licence number for all named drivers. This information is used to immediately check details with the DVLA driver database.
MyLicence will not share the details of spent convictions, even if they remain on your driving record.
What does this mean for people with motoring convictions?
The DVLA Shared Driving Licence service will continue to hold information for the same time as paper licences and in accordance with road traffic legislation. However, convictions which are spent under the ROA should not be disclosed to employers and car hire companies through the ‘check codes’ process.
If you’ve got motoring convictions on your record, it’s more likely that you’ll get found out if you don’t disclose them when required to do so, particularly if the conviction is unspent and you’re applying for insurance as many insurance companies and brokers may ask your permission to access your driver records from the MyLicence site.
It’s important to remember that you do not need to disclose spent convictions to an insurer, even if they remain on your driving record.
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Applying for leave to remain in the UK
We are unable to give immigration advice as under UK immigration law, organisations can only provide this if 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.
This information is designed to help people with a criminal record who are looking to apply for leave to remain in the UK and are worried about how their criminal record might cause them problems.
Why is this important?
Many people have old and minor criminal records. All of these have to be disclosed when applying for leave to remain in the UK. However, there are guidelines on how your application might be treated.
This means that you need to declare all convictions and police cautions on your application to UK Visas and Immigration (UKVI), even if they arespent.
Time periods
You will need to disclose your criminal record as part of your application, even if it is spent. The Home Office will then make their decision based on the length of sentence you were given, and when it was given. The table below sets these out:
How UKVI make their decisions
Declaring a caution or conviction will not necessary mean that your application will be rejected.
The Home Office has guidanceon their ‘General grounds for refusal’ when considering applications for leave to remain
It’s important to recognise that failing to fully disclose your criminal record might lead to you being considered as attempting to deceive the system.
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