This information is designed to clarify what is actually disclosed on biometric passports when they are scanned by Immigration Control Officials and, in particular, whether details of your criminal record are revealed.
Why is this important?
There are many misconceptions about what criminal record information is held on a biometric passport. This can cause undue anxiety when travelling abroad and may sometimes deter people from overseas travel altogether.
Introduction
The UK has been issuing ‘biometric’ passports (also known as ‘ePassports’) since 2006. These passports include a microchip which stores a digitised image of the holder’s passport photograph as well as the biographical details printed on the passport.
The EU has set minimum standards for passports which include the use of facial and fingerprint biometrics. The UK is not covered by these regulations and fingerprint biometrics are not included in UK passports.
The International Civil Aviation Organisation recommendations for biometric standards include a digitised photograph embedded on a chip in the passport. Countries wishing to stay in the US Visa Waiver programme have had to start issuing biometric passports in line with these international recommendations. For further information about the US Visa Waiver Programme see our Travelling to the US – Travelling without a visa.
What information does the chip contain?
The UK’s biometric passports contain a microchip with a ‘facial biometric’. This is a digitised image of the holders photograph. Various features on the face, for example the distance between eyes, nose, mouth and ears, are digitally coded from the photograph and the information stored on the electronic chip.
The chip also stores electronically, the biographical information which is printed in the passport. It does not contain any information which is not also on the face of the passport. The information printed on the passport can be checked against the information on the chip, which is intended to be harder to forge. The information on the chip is encrypted so it can only be read by special biometric passport readers (eReaders).
Should I be worried that information about my criminal record will be disclosed?
Details of your criminal record are not shown when your passport is scanned.
The only time your passport is likely to be ‘flagged’ is when:
there is a warrant out for your arrest either nationally or internationally through Interpol
you are currently undergoing investigation for a possible criminal offence
you have been engaged in some kind of terrorist activity and/or on a Watch List
you are on bail awaiting sentencing
you are taking children out of the country without parental permission
Anyone on the Sex Offenders Register who has notified the police of their intention to travel may have a ‘Green Notice’ issued and ‘flagged’ via their passport. This Notice provides warnings and criminal intelligence about a persons criminal activities, where the person is considered to be a possible threat to public safety. The Notice should be removed at the end of the period of travel.
How can overseas immigration authorities find out about a criminal record?
The UK will only share information with another country about a person’s criminal record if a request is made by the country through the correct Interpol channels. Such a request would not be made (and wouldn’t be granted) unless there was suspicion of illegal behaviour.
The UK Passport Office state that this is only likely to occur if you commit a crime whilst in the country you have travelled to. For example, if you are apprehended by the local police for, say, a driving offence, robbery, assault etc, then they may check your criminal record in the UK. The correct legal channels would still need to be gone through.
For more information
Practical self-help information – More information on travel can be found here.
Discuss this issue – Read and share your experiences on our online forum
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This information highlights what you need to consider before disclosing unspent convictions to an existing insurance company.
Why is this important?
The majority of our information on insurance focuses on purchasing new insurance policies and the impact that unspent convictions can have.
However, it’s also important to consider what to do if you have an existing insurance policy and have an unspent conviction. For example, you might just have been convicted, or overlooked the fact that you were asked about unspent convictions when you took out the policy.
If your conviction was unspent when you took out the policy, and you didn’t disclose this when asked, your insurance is potentially invalid.
What you need to consider
Point 1 – Did the insurer ask about your convictions?
Firstly, look at what the insurance company asked you. Take a look at your latest renewal documents. You might have to go back to your original policy documents. You’re trying to work out what you were asked when you last took out a policy with them (this includes your latest renewal).
Remember, you only have to disclose if you’ve been asked.
For example, if you received a theft conviction and were asked by your motor insurer to disclose only motoring convictions, you don’t have to disclose.
If you were asked, you then need to compare when you were convicted with what the insurance company require from you.
Point 2 – When were you convicted?
You then need to consider when you were convicted – was it during your current policy, or before the policy started? This is important, as it will have an impact on what you do next.
Convicted during the policy
If you were convicted during your current policy, you should check your insurers approach to ‘mid-term changes’. Insurers have a duty to inform you within your policy documents of your obligations in terms of disclosing any changes to your circumstances. Unless there is a explicit condition in your policy, you do not have to disclose convictions obtained during a policy, until your next renewal.
Some will ask you to notify them of changes like a conviction, whereas others will say that you need only notify them at renewal. We’ve seen a few that are quite specific about what types of information they need notifying of mid-term, and convictions may be in this list.
If mid-term changes don’t need to be notified, you can continue with your policy until renewal. At renewal, you should find alternative cover (see below).
Convicted before the policy started
If your conviction was unspent when you took out the policy, and you have not disclosed this when asked, your insurance is potentially invalid.
You should decide whether you want to notify your current insurer (and risk your policy being cancelled), or seek alternative insurance before cancelling the policy yourself. Bear in mind that if your policy ends up getting cancelled, this can cause problems in getting further insurance. You may find it useful to call your current insurer anonymously to ascertain what their approach would be to somebody in your situation.
Generally, we would advise that you should look to cancel your insurance and seek insurance elsewhere, as they asked you about unspent convictions and you didn’t disclose (see below).
If your insurance company decides that they want to end your policy, they may give you a period of notice so that you have time to find insurance elsewhere. However, they are not legally obliged to do so where an unspent conviction has not been disclosed.
Why cancel the policy and find alternative cover?
If you didn’t disclose when asked, there is a risk that your existing insurer could cancel your policy due to ‘non-disclosure’.
Instead, we suggest you cancel the policy and find alternative cover. You can do this using the list of insurance brokers that we produce.
Why? Having insurance ‘cancelled’ or refused can create problems further down the road, even once it’s spent. Although once your conviction is spent you do not need to disclose it to insurers, you will normally be asked whether you’ve had insurance cancelled, and the legal position is unclear as to whether the Rehabilitation of Offenders Act 1974 covers you in saying “no” to this question if the cancellation relates to a conviction that is now spent.
For more information
Practical self-help information – More information on insurance, including a list of companies that can insure people with unspent convictions, is in the insurance section of this site.
Discuss your views and experiences with others on our online peer forum
Spent and unspent convictions – when you might have to disclose them
Aim
This page provides a simple overview of the practical ways that convictions might come up in day-to-day life, and how that might change depending on whether the convictions are unspent or spent under the Rehabilitation of Offenders Act.
Why is this important?
Convictions and criminal records can have an impact in a range of ways. Sometimes, whether it’s unspent or spent is important. Sometimes, the fact that it’s spent doesn’t stop it potentially causing a problem. There’s a lot of confusion about how the law applies in different situation.
Areas of life
The table above is only a summary and each of these areas (and others) are covered in detail elsewhere on the Information Hub. For further details see:-
Supervision in the community (after release from prison and on probation or community order)
This page is for information only. We are unable to provide advice on this. For reasons why,click here.
Aim
This information responds to a number of queries we’ve started receiving about serving sentences in the community. This isn’t a core area that Unlock can provide advice on, but we thought it would be helpful to explain the changes that took place in early 2015, and to outline how these might have an impact on people with convictions serving their sentence in the community.
Why is this important?
On 1st February 2015, theOffender Rehabilitation Act (ORA) came into force. The Act provides that all those released from short prison sentences will now first be subject to a standard licence period for the remainder of their prison sentence to be served in the community, and then be subject to an additional supervision period.
The Government estimates that some 50,000 individuals will ‘benefit’ from this additional support and that it will help to tackle high reoffending rates.
The new legislation applies to individuals:-
Whose offence was committed on or after the 1st February 2015
Who were sentenced to a prison term of more than 1 day
Who will be 18 years or over when released
How will the changes affect individuals serving prison sentences?
Reduction of unconditional releases
Previously, adults serving prison sentences of less than 12 months were released unconditionally after one half of their sentence had been served.
Under the ORA, adults serving prison sentences of less than 12 months, for an offence committed after 1 February 2015, will be released on licence after serving one half of their sentence in prison and will serve the remaining period in the community.
Introduction of a new supervision period for 12 months after release
The ORA also introduced a new period of post sentence supervision for anybody sentenced to less than 2 years in prison.
Those sentenced to less than 2 years and released on licence (as outlined above), will be subject to an additional period of supervision (for the purposes of rehabilitation), once their licence period comes to an end. The licence and supervision period will together add up to 12 months.
Depending on the length of the prison sentence, the length of the supervision period can vary significantly.
Example 1
Person A is sentenced to two months in prison. He serves one month in prison, one month on licence and received an additional 11 months post sentence supervision to make a total of 12 months.
Example 2
Person B is sentenced to 18 months in prison. He serves 9 months of this sentence in prison and is then released to serve the remaining 9 months in the community on license. In addition, after his 18 month sentence comes to an end, he receives a further 3 months supervision in the community.
Example 3
Person C has served 6 months on remand. At trial, he is sentenced to 6 months in prison. He is released immediately, and then receives a further 12 months supervision.
Are there any exceptions?
Yes, these include:-
Those sentenced to 1 day and who are therefore not taken into prison, for example, fine defaulters
Those aged under 18 on the last day of their prison sentence
Those who committed the offence before 1st February 2015.
What do supervision requirements include?
A requirement to be of good behaviour and not to behave in a way which undermines the purpose of the supervision period
A requirement not to commit any further offence
A requirement to keep in touch with the supervisor in accordance with the instructions of the supervisor
A requirement to reside permanently at an address approved by the supervisor and to obtain the prior permission of the supervisor for any stay of one or more nights at a different address
A requirement not to undertake work, or a particular type of work, unless it is approved by the supervisor and to notify the supervisor in advance of any proposal to undertake work or a particular type of work
A requirement not to travel outside the British Islands, except with prior permission of the supervisor or in order to comply with a legal obligation
A requirement to participate in activities in accordance with any instructions given by a supervisor
A drug testing requirement (for individuals with problematic drug use)
A drug appointment requirement (for individuals with problematic drug use)
What happens if I breach a requirement?
Breaches during the standard licence period are dealt with by the National Probation Service who have the discretion to consider the following courses of action:-
Issuing a warning to the individual
Asking the Prison Governor for a variation in licence conditions (for example by adding a curfew or imposing electronic monitoring)
Recalling an individual to prison
Anybody who breaches the requirements of the new supervision period will be taken back to court. The court will then have the power to impose the following sanctions:-
A fine
Unpaid work
A curfew
A return to prison
Those being returned to prison will generally be recalled for an automatic period of 14 days (as opposed to 28 days for those with longer sentences) but, where there is assessed to be a risk of serious harm to the public, individuals can be recalled until the end of their sentence.
If the breach constitutes a criminal offence which leads to another conviction, a further sentence will be given.
Who is responsible for supervision?
The Offender Rehabilitation Act accompanied the newTransforming Rehabilitation Programme which saw 35 Probation Trusts abolished and replaced by a National Probation Service (NPS) and 21 Community Rehabilitation Companies (CRC’s). These CRC’s manage approximately 70% of the supervision for less serious individuals while the remaining 30% (considered more serious) are managed by the NPS. The assessment of risk (i.e. low, medium or high) is made by the NPS.
Supervision for individuals serving community orders or suspended sentences
For individuals serving a community order or suspended sentence, the Offender Rehabilitation Act has created a new Rehabilitative Activity Requirement which replaces the previous ‘activity’ and ‘supervision’ requirement.
Rehabilitation Activity Requirements can include:-
Instructions to participate in specified activities
Instructions to go to a specified place
Activities that form part of an accredited programme
Activities with a reparative purpose, such as restorative justice.
An activity is considered a restorative justice activity if:-
The participants consist of, or include, the ‘offender’ and one or more victims
The aim of the activity is to maximise the individuals awareness of the impact of the offending concerned on the victims
The activity gives a victim or victims an opportunity to talk about, or otherwise express experience of, the offending and its impact
A court will determine which requirements to impose in a community order or suspended sentence order taking into consideration the advice in any Pre-Sentence Report.
When considering the content of a Rehabilitation Activity Requirement, the National Probation Service must identify and pay proper regard to the rehabilitative and criminogenic needs of individuals, as well as an assessment of their offending behaviour and associated risks. For further information seePI58/2014
Each Community Rehabilitation Company will make information available to the NPS about what rehabilitative services are available in their contract package and this will shape the advice the NPS gives to the courts on sentencing. This means that rehabilitation activity requirements are likely to vary from one contract package area to another.
This page aims to set out the route to becoming a solicitor and the likely obstacles you may face if you have a criminal record.
Why is this important?
Law firms may not be averse to employing people with convictions and may only carry out basic criminal record checks. Initially however, individuals would need to meet the requirements of the Solicitors Regulation Authority to become qualified. Its important to know whether your criminal record will prove problematic before you embark on a course of study.
Introduction
Training to become a solicitor demands considerable commitment over a number of years. Legal jobs are hotly contested and you will need to be determined and highly motivated to succeed.
Qualifying as a solicitor
The route to qualification as a solicitor in England and Wales requires individuals to meet the requirements set out under the Solicitors Act 1974 to ensure they are of satisfactory character and suitability. You will therefore be required to complete a screening process before you are admitted to the roll.
The Solicitors Regulation Authority (SRA) is responsible for setting and maintaining standards for all solicitors practising in England and Wales. They have a duty to consider the character and suitability of anyone who wishes to enter the profession, and they must ensure that any individual admitted as a solicitor has, and maintains, the level of honesty, integrity and professionalism expected by the public and other professionals, and does not pose a risk to the public or profession.
The screening process
The screening process involves validating an individual’s name, address and other personal information supplied during the application process against appropriate third party databases. Screening will also consist of completion of a Standard Disclosure and Barring Service check.
The Suitability Test
The SRA assess the character and suitability of all individuals before they start a period of recognised training (previously referred to as a training contract) against criteria set out in the Suitability Test.
If you are aware that there may be issues around your character and suitability, it is important that you disclose this as early as possible, and at least six months before you would anticipate commencing a period of recognised training. This will allow for your application to be assessed. The SRA will ask for written confirmation of the relevant issues and individuals may be asked to appear before a Solicitors Regulation Authority adjudicator to explain their situation. If you fail to disclose any cautions or convictions this could result in your being refused admission as a solicitor in England and Wales.
If you have lived in a country outside of the UK for a period of 6 continuous months during the last five years, you must provide a criminal record check from the relevant country or countries.
The certificate must be the original document, less than three months old and, if not in English, must be translated into English by an accepted translation body.
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Useful links
Below you will find links to useful websites relating to this page. More specific details (including the addresses and telephone numbers) of some of the organisations listed below can be found here.
Discuss your views and experiences with others on our online peer forum
Harassment Warning
This is for information only. We are unable to provide advice on this. For reasons why, click here.
Who is it issued by and how can I contact them?
Harassment Warnings are issued by the Police – contact the administering force.
Does it involve guilt?
No. Acknowledging receipt of the notice does not mean that you are admitting any wrongdoing. You are simply accepting information about the Protection from Harassment Act and the police position on investigating allegations of harassment.
Is it recorded on the Police National Computer (PNC)?
Yes. A facility is available on the PNC which allows an entry to be recorded which does not constitute a ‘criminal record’ but is accessible for police use.
Is it classed as a conviction?
No, but it is kept on the PNC and can be taken into consideration by the Police if there are any further allegations of harassment.
How long will it be on my record?
Information is retained on the PNC and can be used in future criminal proceedings as evidence of character.
When does it become spent?
It isn’t a caution or conviction, so isn’t formally covered by the Rehabilitation of Offenders Act 1974.
When do I have to declare it?
You very rarely get asked about Harassment Warnings, so you don’t have to declare it.
However, it is not covered by the Rehabilitation of Offenders Act and so, when asked, it must be disclosed. It is rare for employers to ask about Harassment Warnings.
Is it disclosed on DBS Checks?
Not on a standard check.
It might be disclosed as part of an enhanced check in the ‘other relevant information’ section, i.e. if the offence has a bearing on the kind of work you are applying for. However, in our experience it is rare for Harassment Warnings to be disclosed in the ‘other relevant information’ section.
Do I have the right to appeal and what is the process?
There is no formal process for appealing a Harassment Warning. If you wish to complain about the decision or how the case was handled, you need to make a complaint to the Chief Constable or Commissioner of the administering force.
Each police force should be willing to receive requests for Harassment Warnings to be ‘expunged’ as part of their ownership as Data Controllers of the PNC. However, this is only done in exceptional circumstances, particularly where a significant amount of time has passed since receiving the warning. If you did decide to try and have the warning expunged, then there is a risk that if you earlier admitted guilt, this could be used as evidence if you decided to proceed with charge in lieu.
Other information
The Protection from Harassment Act makes it a criminal offence to pursue a course of conduct which amounts to harassment of another person, where that person knows (or ought to know) that the act amounts to harassment (which can include alarming a person or causing them distress).
There needs to be at least 2 separate occasions of conduct which, together, can be said to amount to harassment. This is where the apparent need for a Harassment Warning comes in – a single act on its own cannot amount to a ‘course of conduct’ but it can be enough for a Warning to be given.
A Warning can be given by police following an allegation which, if true and repeated, would amount to an offence under the Protection from Harassment Act. Until or unless further similar allegations are made, there is not enough evidence to charge a person with harassment, hence the Warning. The Warning lets the individual know that a complaint has been received and that a charge may follow if the conduct complained of is repeated.
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In 2015, over 4.9 million people visited the US from the UK. A significant number of these will have some form of criminal record. Many people successfully apply for a visa through the US Embassy but many will simply choose to travel under the Visa Waiver Program (VWP) without declaring their criminal record.
It’s important to be clear about the possible consequences of choosing not to disclose your conviction.
The Visa Waiver Program (VWP)
What is the Visa Waiver Program?
The VWP enables nationals of participating countries, including the United Kingdom, to travel to the US for tourism or business for stays of 90 days or less without obtaining a visa.
Historically, travel under the VWP has been free. However, under a new US law that became effective on 4th March 2010, a fee of at least $10.00 is to be charged for each authorisation under the Electronic System for Travel Authorisation (ESTA) for visa-free travel to the United States.
For more details on the VWP, and those who cannot travel under it, visit the Travel.State.Gov website. Essentially, you may use the VWP to travel if:
You have received an authorisation to travel under the VWP through the Electronic System for Travel Authorisation (ESTA).
You present the appropriate type of passport valid for six months past your expected stay in the United States (unless country-specific arrangements provide exemptions, which the UK does).
The purpose of your stay in the United States is 90 days or less for tourism or business.
If arriving by air or sea, you are travelling on an approved carrier and have a return trip ticket to any foreign destinations.
You can demonstrate the intent to stay 90 days or less in the United States and demonstrate sufficient funds to support yourself while in the United States.
When do I have to apply for a visa instead of using the VWP?
You must meet the guidelines listed in the section above in order to seek admission to the US under the VWP. Those who do not meet these guidelines must apply for a visa.
The Electronic System for Travel Authorisation (ESTA)
Previously, a non-immigrant visa waiver arrival/departure form was completed before travel to the US. This process now has to be done electronically before travel.
Since 12th January 2009, you have to register with the Electronic System for Travel Authorisation (ESTA) via the system’s website before you travel. Effectively, the ESTA replaces the previous requirement for you to fill in a green visa waiver form every time you enter the US. Instead, the ESTA is valid for multiple entries over a two-year period as long as you do not change passports in the meantime. Since January 2010, VWP travellers who have not obtained approval through ESTA should expect to be denied boarding on any air carrier bound for the United States.
You may travel under the VWP if you have received an authorisation to travel under the VWP through the Electronic System for Travel Authorisation. The ESTA process asks questions regarding criminal convictions. If you answer ‘yes’ to the questions that are asked during the ESTA process (see here for further information) regarding convictions, you will be told that you are not eligible to travel under the VWP and will instead have to apply for a visa.
What can you do if you’re ineligible to travel under the Visa Waiver Program (VWP)?
If your criminal record means that you are ineligible to travel under the Visa Waiver Program (VWP), then there are two options:
Many people who contact Unlock ask “If I don’t declare my conviction, is there any way they can find out?”. The answer is, if you don’t tell the US about your criminal record, they probably won’t find out.
Lying on the ESTA form
Access to the UK Police National Computer (PNC)
The United States does not have access to the Police National Computer (see the FOI response below). The security services do share information about high-profile crimes, serious offences or if someone is a security risk, but this is not done as a matter of routine.
However, the United States authorities are able to seek details of any criminal convictions held on the Police National Computer on an individual request basis through Interpol channels. This rarely happens.
Potential offences for non-disclosure
If you attempt to travel under the Visa Waiver Program and as a result have to make a false declaration to the questions asked as part of the Electronic System for Travel Authorisation (ESTA) process, you are potentially committing a criminal offence under US law. In particular, two areas of law are relevant:
The Immigration and Nationality Act – Sec. 275. [8 U.S.C. 1325] – Entry of alien at improper time or place; misrepresentation and concealment of facts – Maximum 2 years in prison
U.S. Code Title 18, Part 1, Chapter 75, Section 1546 – Fraud and misuse of visas, permits and other documents – Maximum 10 years in prison. Further details can be found below.
People lie all the time – but is it right for you?
We speak to people all the time who are weighing up whether to lie on the ESTA form or whether to apply for a visa. Ultimately, this is a decision that only you can make.
For some people, the potential offences for non-disclosure, coupled with the anxiety they’d feel when travelling, makes them decide that applying for a visa is the right route to go.
For others, hearing from friends that have travelled with no problems makes them think that there won’t be a problem.
Taking the decision to lie can make it more difficult to apply for a visa in the future as any visa application will highlight the fact that you’ve travelled ‘illegally’ in the past (this would presumably throw into doubt any claim you make to be a law-abiding citizen). If you think that there’s a chance that you may want to live or work in the US in the future, then lying on the ESTA form may not be the right decision for you.
How would the US find out about a conviction?
We made a Freedom of Information Act request to the Home Office to clarify the situation. We asked …..
“I would like to ascertain the current procedure in place for information on the Police National Computer (or other criminal conviction-related information) to be shared with the United States.
I would like copies of any agreements that have been made to allow the United States access to information on the PNC (or access to other criminal conviction information).
On a similar note, I would like to ascertain, within the response to my request for the information above, if the United States authorities (whether the US Embassy in the UK or the US Security department) have access to criminal conviction information of individuals who travel to the US without the individual concerned having previously applied for a Police Certificate under the Visa Scheme that is in place through the US Embassy.
In short, I would like to know how the US authorities are able to ascertain whether an individual from the UK has a criminal record. This presumably relates to any agreements that are in place between the US authorities and the Home Office for sharing of such information, and it is these agreements that I would like to receive copies of.”
They responded…
“Thank you for your e-mail of 25 June in which you asked for the current procedure in place for information on the Police National Computer (or other criminal conviction-related information) with the United States.
The Home Office does not hold a copy of any agreement by which information on the Police National Computer (or other criminal conviction-related information) is shared with the United States. We are however aware of the general process by which information is shared. In deciding to release the information we have considered that the public interest in relation to the exemptions set out in Section 31(1)(a) [the prevention and detection of crime] and 31(1)(b) [the apprehension and prosecution of offenders] of the Freedom of Information Act falls in favour or providing the information.
The public interest reason in favour of withholding the information is to make sure that those who have committed crimes or who have otherwise come to the attention of the law enforcement authorities in each country are not aware that information is shared between the United States and the United Kingdom. The Public Interest Test arguments in favour of disclosure are that it is important for members of the public to be aware that information is shared between the two countries. By doing this the public can be re-assured that criminals are not able to escape justice by moving country, or by committing crimes in a country that is not that of their nationality. In this case the public interest argument in favour of withholding the information is outweighed by the arguments in favour of releasing the information.
The United States authorities do not have routine access to criminal record information held on the Police National Computer nor is the Police Certificate Process routine access to the PNC by the American Authorities. The Police Certificate arrangements are with the individual applicants who may or may not choose to subsequently share the content of the certificate with the US authorities. Further information on the ACRO Police Certificate Process can be found on the ACRO website at http://acpo.police.uk/certificates.asp and on the application form page of the same website at http://acpo.police.uk/Certificates/Application%20Form%208.doc.
The United States authorities are able to seek details of any criminal convictions held on the Police National Computer on an individual basis through Interpol channels.
Criminal conviction information on US Nationals who have been convicted of offences in England and Wales is extracted from the Police National Computer and sent, via Interpol channels to the United States in cases where there are fingerprints available and when the conviction is for imprisonment for 12 months or more or the offence is against national security or where sharing would be in the interest of pubic protection.”
To download a copy of the full response from the Home Office, click here.
Annex A – The US Code, Title 18, Part 1, Chapter 75, Section 1546
The text below is taken from the above legislation (available here) and details a potential offence under US Immigration laws for failing to disclose a criminal record when travelling to the US:
“Whoever knowingly forges, counterfeits, alters or falsely makes any immigrant or non-immigrant visa, permit, border crossing card, alien registration, receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorised stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorised stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or
Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper office, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or non-immigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents; or
Whoever, when applying for an immigrant or non-immigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorised by law to receive such document; or
Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact –
Shall be fined under this title or imprisoned not more than 25 years (if the offence was committed to facilitate an act of international terrorism (as defined in section 2331 of this title), 20 years (if the offence was committed to facilitate a drug trafficking crime (as defined in section 929 (a) of this title), 10 years (in the case of the first or second such offence, if the offence was not committed to facilitate such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offence) or both.”
Discuss this with others
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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.
This page was last fully reviewed and updated in August 2017. If you’ve spotted something that needs updating, please let us know by emailing the details to advice@unlock.org.uk.
Out of court disposals
For more information on out of court disposals, use the ‘Information’ header at the top of this page and select ‘Understanding your criminal record’ and then ‘List of sentences/disposals and their implications‘
Summary
When deciding whether a prosecution is in the public interest, police officers have a duty to consider whether an out of court disposal would be more appropriate.
On many occasions, the action of the police is determined by law. However, there are times when the police have some discretion in how they exercise their powers and they may feel it more appropriate to issue some type of out of court disposal.
Any decision they make must be appropriate and proportionate to the offence and to the individual concerned. Any relevant mitigating or aggravating factors will be taken into consideration.
Examples of out of court disposals and their implications
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Thanks go to NAAN for allowing us to copy the above image from their guidance.
Many people of all ages and circumstances find great satisfaction in doing voluntary work. For people with convictions, undertaking voluntary work can have particular benefits. Volunteering can:-
Bring you into contact with new people and potentially new friends, at a time when perhaps past social contacts have been disrupted.
Boost self-confidence and self-esteem, when perhaps these have taken a knock.
Help provide a stable pattern and routine in life.
Help develop new skills, knowledge and experience – both social and practical.
Provide the satisfaction of working as part of a team to make a difference to the lives of others or to the environment.
Be useful experience to include in a CV that might be attractive to a potential employer.
Provide a source for a reference that could be invaluable when looking for paid employment.
Provide an opportunity, with some voluntary organisations, of getting a qualification e.g. an NVQ.
In some circumstances directly open up paid employment possibilities. If the organisation you are volunteering with also employs paid staff in similar work, a volunteer may make a good applicant for a paid post.
Where to find volunteering opportunities
Opportunities for voluntary work, particularly where the work is of a one off ‘work party’ nature (for example, a weekend project to renovate a canal towpath), are often advertised locally e.g. on local council, library or supermarket notice boards.
If you are interested in longer term voluntary work, or would like to talk with someone who could advise you about the kind of volunteering work that is available locally, it could be useful to make contact with your local Volunteer Centre. You may want to consider whether or not to disclose your convictions at this point – these considerations are similar to those that apply if you are looking for paid employment – see our guide ‘To disclose or not to disclose’. You may find it encouraging that the National Council for Voluntary Organisations (NCVO) – an umbrella body for volunteer centres – gives very positive guidance on the use of people with criminal records as volunteers:-
“There are several reasons for recruiting people with criminal records as volunteers. Firstly, it enables you to recruit from a wider pool of potential volunteers, which should help increase your volunteer base. If organisations exclude people with criminal records they automatically lose access to a significant proportion of potential volunteers. More importantly, by proactively targeting offenders and ex-offenders as part of your recruitment campaign you are demonstrating your organisation’s commitment to equal opportunities and diversity. Each individual should be looked at on their own merit.”
Of course, the response of individual voluntary organisations to people with convictions may be very varied. The details of your local volunteer centre can be found here.
But perhaps the most useful place to find voluntary work is on the Do-Itwebsite, a database of over 1,000,000 volunteering opportunities which you can search by area and type of work.
For more details about volunteering for Unlock, visit the vacancies section of our main site.
Applying for voluntary work and the Rehabilitation of Offenders Act
The Rehabilitation of Offenders Act
The Rehabilitation of Offenders Act (ROA) generally applies in the same way to voluntary work as it does to paid employment. Organisations may only ask about spent convictions or request Standard or Enhanced Disclosure and Barring Service checks if the voluntary work is of a nature that is exempt from the ROA. If you are on a barred list you would be committing a criminal offence if you applied for voluntary work involving the relevant regulated activity with children or vulnerable adults.
If you are on licence or supervision
It is part of the standard licence conditions that you “Undertake only such work (including voluntary work) approved by your supervising officer and notify him or her in advance of any proposed change.”
This means that, if you have this as a condition, you will need to keep them up to date of what voluntary work you’re doing. In some situations, they may tell you to disclose your convictions, even if the organisation hasn’t asked. This might influence whether you choose to disclose or not.
Voluntary work that is not exempt from the ROA
One off ‘work-party’ type volunteering (e.g. a one-off ‘clearing of a site’ task) may not have any formal application procedure or form to complete – perhaps just a phone call to obtain details of where to turn up.
Many longer term volunteer opportunities may have a simple application form to obtain basic information for the organisation’s own record keeping and insurance purposes. There may not be any question about criminal convictions. There may be an informal interview, although if the work is of a skilled nature, perhaps involving training or a long term commitment, some organisations do have quite formal procedures for recruiting volunteers.
The considerations as to whether in these circumstances you would wish to tell someone in the organisation about your conviction are similar to those if you were seeking paid employment – see here. However, as less is at stake in disclosure of convictions as a volunteer (your source of income is not at risk) than if you are in paid employment, you might feel more positively about disclosing an unspent conviction at some stage to someone in the organisation.
For these types of voluntary opportunities (i.e. roles not eligible for a standard or enhanced check), if there is a conviction question on the application form only unspent convictions should be disclosed. Any organisation would be entitled to request a basic criminal record check from Disclosure Scotland which would only disclose unspent convictions.
An organisation should not refuse to take you on as a volunteer, or to subsequently dispense with your services, because they become aware of a conviction that is spent. However, if this happens as a volunteer you do not have the same statutory rights as a paid employee (see here). Your only redress would be to make a complaint using the organisation’s complaints procedure. A paid employee might be able to claim unfair dismissal at an employment tribunal in those circumstances, and it is a strong argument to point out that the organisation should not treat a volunteer less favourably than it can get away with in respect to an employee.
Voluntary work that is exempt from the ROA
If the voluntary work is covered by an exceptions order to the ROA – most likely a regulated activity involving children or vulnerable adults as defined in the legislation (see here) – the organisation should make it clear on their application form that they will be requesting a DBS check. There is likely to be a criminal conviction question on the application form with a statement that the role is exempt from the ROA. See our guide as to how to respond to this question. There is also likely to be a more formal recruitment and interview procedure, with references being taken up.
The organisation should not have a policy that automatically rules out taking on any volunteer with a criminal conviction. The DBS Code of Practice requires organisations seeking disclosures to have a written policy on the suitability of ex-offenders that is available on request to potential applicants. The sample policy provided by the DBS contains the statement;
[Organisation Name] undertakes not to discriminate unfairly against any subject of a criminal record check on the basis of a conviction or other information revealed
Ineligible checks by voluntary organisations
As is clear elsewhere on this site, there is a problem with ineligible checks – standard or enhanced checks being undertaken for roles which are not exempt from the ROA. Unlawful checks may be a particularly common issue in voluntary work and there are several reasons for this –
Voluntary organisations may not have the management resources to keep fully informed about the law
There is no charge to an organisation seeking a Standard or Enhanced DBS checks for volunteers, so there is no financial restraint on seeking checks
The organisation might properly wish to obtain a basic check, but would have to pay £18 – so instead obtains a free standard or enhanced check
There is a widespread misunderstanding of the legal definition of “work with vulnerable adults”, which changed completely in 2012. Organisations may not understand how limited is the scope of this exception to the ROA. The DBS explanation of regulated work with Vulnerable Adults is here.
A ten minute search on the Do-it website found that these volunteer jobs all appeared to be the subject of illegal DBS checks:
Helpers at Food banks run by a leading national charity
A volunteer walk leader working for a council
A female allotment volunteer (“You will be planting seeds, keeping beds tidy and ready for the summer”!)
If you believe that the organisation you would like to volunteer with is seeking an ineligible DBS check you should read our guide to ineligible checks. Guidance from the NCVO makes it clear to voluntary organisations that “It is illegal to apply for a check unless the role is eligible for one. You must also tell the volunteer why they are being checked”.
Volunteering and claiming benefits
Job Seekers Allowance and Employment Support Allowance
The good news is that generally you can undertake voluntary work without it affecting any state benefit. This is provided that the only money you receive is for reimbursement of any expenses you have actually incurred. There is no restriction now on the number of hours that you do, but if you receive Job Seekers Allowance (JSA) or Employment Support Allowance (ESA) you should inform the Job Centre if you are doing voluntary work. If you are on JSA you should be able to keep to the terms of your Job Seekers Agreement, be actively seeking work, available to attend an interview for a job at 48 hours notice, and be able to start paid employment within a week’s notice.
Volunteering England have an excellent guide to the rules, about claiming benefits and voluntary work. It is a good idea to read this before committing yourself to volunteer.
Disability Benefits
You can volunteer whilst claiming a disability benefit (Disability Living Allowance or Personal Independence Payments), or Carer’s Allowance. If you are receiving a disability benefit or ESA you should remember that the Benefit Agency is entitled to take into account any abilities apparently shown by your voluntary work when it assesses your eligibility for the benefit. Of course the fact that you are able to do some voluntary work does not mean that you are disqualified from the benefit, but you would need to take care if, for example, your voluntary work apparently involved physical activity, and you were claiming benefit on the basis of having a physical disability.
If you receive or are making a new claim for either ESA or PIP it is useful, if you have not already done so, to get familiar with the points scoring systems that are the bases for the award of these benefits.
Useful contacts/websites
NCVO works to support and increase the quality, quantity, impact and accessibility of volunteering throughout England.
Step Together provides tailored one-to-one support to help individuals into volunteering placements that match their needs and interests and helps them develop new personal and practical skills.
Time Bank is a national charity inspiring and connecting a new generation of people to volunteer in their communities, and enabling charitable organisations and businesses to develop innovative and effective volunteer recruitment programmes.
Do-it was launched in 2001 with the first national database of volunteering opportunities in the UK.
The Just People website is a resource from Pact, which provides volunteers wishing to take up roles in the criminal justice system with training, vetting, volunteer placements and ongoing support and development. They work in partnership with a wide range of statutory, voluntary and community-based organisations.
Useful resources
Back on Track detail a number of examples that show the benefits that ex-offenders found in undertaking voluntary work in the Greater Manchester area, and give good advice about volunteering.
A study by The Griffins Society into Women ex-offenders’ experiences of volunteering found that for some of the women involved in the research “volunteering really was a life changing experience which has included making a successful career for themselves. However, in order to do this, women do have to put in hard work, show commitment and treat volunteering as if it were paid work”.
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Enforced subject access
Summary
‘Enforced subject access’ (under section 184 of the Data Protection Act 2018) prevents employers from requiring people to use their subject access rights under the DPA to provide certain records, such as police records, as a condition of employment. It also prevents contracts from requiring certain records as a condition for providing or receiving a service, such as housing or insurance. Requiring people to provide these records will become a criminal offence, punishable by a fine. In England and Wales the maximum financial penalty on summary conviction in the magistrates’ court is £5,000 (soon to be unlimited). On indictment in the Crown Court the fine can be unlimited.
We’ve long argued that section 184 needs to be brought into force, but this wasn’t ever possible until reforms to the Rehabilitation of Offenders Act 1974 were brought in on the 10th March 2014. Section 184 came into force on the 10th March 2015.
For people with convictions, this is an important development. Although it doesn’t prevent employers and others from getting access to criminal records through legitimate means, what section 56 does do is prevent the use of significant amounts of sensitive personal data that can be disclosed as part of a subject access request.
In the past, we’ve come across examples where employers, insurers, education providers and housing providers have required people provide copies of their police record by applying to the ACRO Criminal Records Office for a subject access request. This type of request discloses all information held on the Police National Computer, including convictions and cautions that are spent, as well as allegations or other ‘local police information’.
The introduction of section 184 will enable a clearer message to be given to any organisation that is found to be undertaking this type of practice. The legislation only allows requirements of this type where the record is required by law or is justified in the public interest.
Frequently asked questions
No. It means that an employer can’t make you do a ‘subject access request’ under the Data Protection Act to get a copy of your police record.
What you should do will depend on the reason for the request. For example, if it’s for a job that would be eligible for a standard or enhanced check, then you might advise them of that. If not, then it might be that they’re only allowed to ask you to do a basic disclosure. Ultimately, you should be able to refuse to do it. Use the guidance above to help you. Either way, if you have evidence of them requiring you to do an enforced subject access, send us the details.
This is the phrase that is used to describe the process of obtaining a copy of the records that organisations hold on you. In this context, it’s mainly referring to you obtaining a copy of your police record.
Yes. This means that insurers will no longer require you to provide a copy of your police record. Instead, if they do require any form of official record of unspent convictions, they may ask you to consent to a basic disclosure.
Yes. It applies to any individual or organisation that ‘requires’ you to do a subject access request. For example, housing associations will no longer be able to require you to obtain a copy of your police record.
Yes. In guidance to schools it’s been made clear that they cannot require individuals to obtain police records of either themselves or those that live or work in the same household as them.
Yes. Under the 2003 Licensing Act Guidance (4.6) Regulations, in order to substantiate whether or not an applicant has a conviction for an unspent relevant offence, a licensing authority can, for the granting of a personal licence request a criminal conviction certificate, a criminal record certificate (both of these are basic DBS checks), or the results of a subject access search of the Police National Computer by the National Identification Service to the licensing authority. This means that whilst an enforced subject access request is now illegal, it can be requested for the granting of a personal licence. We would always recommend that when applying for a personal licence, you provide a basic DBS check rather than a SAR which would disclose the details of all convictions rather than just those which are unspent.
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