Here's why disclosure shouldn’t be used to test an applicant’s ‘honesty’
As highlighted elsewhere in this toolkit, many providers do not offer clear or consistent guidance on criminal records. If guidance is unclear, how can an applicant know what they are being asked, and respond appropriately?
In our experience, the most common reason for an applicant not disclosing something is because the guidance for how to do so was unclear, inaccessible or incorrect.
In addition to the dearth of guidance from higher education providers themselves, the law regarding disclosure of criminal records is complex and can be confusing. We know that many people with criminal records do not know precisely what their criminal record contains, or what might be disclosed in certain levels of DBS check.
There is also a great deal of conflicting or incorrect advice regarding criminal records on the internet, and within statutory services. We hear often from people who were told that an interaction with the police was an informal ‘slap on the wrist’ or that their record would be ‘wiped’ once they turned 18. As a result, some people are unaware that they have anything on their record at all.
The law also changes; some spending periods and eligibility for filtering have changed in recent years. This has meant that some people with criminal records are required to disclose for less time than they originally might have; for others, their disclosure periods have increased. There is no process for notifying individuals when the restrictions on them change. This can add an additional layer of confusion to an already complex system.
We regularly hear from people who have lost opportunities for higher education because they didn’t declare some part of their criminal record. Sometimes, an undisclosed record is discovered, but causes no concern to the provider. Yet, many people in this situation are still rejected or removed from a course, on the assumption that they were intentionally dishonest. The assessment appears to be that the ‘dishonesty’ itself is reason enough for dismissal or rejection. Given the complex, changing nature of the system and the lack of information available to individuals about their criminal record, this assumption is unfair in most cases.
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“I have a conviction for attempted robbery which I was charged with in 2014 at 13 years old. During my court hearing, I was told by my lawyer and the Judge that this would not stay on my record after the age of 18, so me and my mother chose to go guilty as at the time we felt it was easier than going through a trial. I was served 6 months with the Youth Offending Team – the purpose was to rehabilitate me. Since the incident I went on to achieve 11 GCSEs A*-B and a distinction in a level 3 Nursing course. I was never arrested again. So let’s say the rehabilitation worked.
In 2021 I was accepted onto an adult and mental health nursing master’s degree, I did not declare this conviction on my application, as this was my first DBS and I did not know it [the conviction] existed [on my record]. Subsequently, I was kicked off my degree halfway through the year as I was deemed ‘untrustworthy’ and ‘dishonest’. I then applied to the same degree in 2022, declared my conviction and was accepted again. Then I was removed from the course yet again, as they remembered me from last year and maintained that I was ‘untrustworthy’.
Now in 2023 I have applied to a different university for adult nursing, I have been accepted, and now must have a panel meeting where they will decide if I can continue enrolment. (I have also just been accepted for work, where again, I have had to declare this conviction, and must now allow people to make judgements against me that ultimately affect my life prospects.)
From 2021 until now it has been a cycle of anxiety and embarrassment over an incident that occurred almost 10 years ago. I now aspire to be a nurse, but this conviction that has no bearing on my thoughts, values or actions as an adult is a constant hindrance. I will now be judged and stigmatised for the rest of my life. Even if I do enrol on the nursing degree, before every placement for the next 3 years, I will again be subject to meetings to determine my risk. Once I graduate, every single job will also require a meeting to discuss an offence from when I was 13.”
There may be some instances in which a provider feels, following a proper assessment, that an applicant intentionally avoided disclosing relevant information. This will invite questions as to whether that student is suitable for higher education at that time.
Where this challenge arises, higher education providers should:
- Assume it was an honest mistake by default, and approach any further investigations from this perspective first.
- Avoid blanket rules about ‘dishonesty’ – no automatic barring from courses until a proper exploration of what went wrong has been completed. Providers should consider what their first steps will be – for example, if someone on a regulated course is found to have an undisclosed criminal record, it is likely appropriate to suspend them from engaging in regulated activity until an assessment has been made.
- Always carry out a review to check whether any lessons can be learned about the approach taken by the institution. For example, maybe the questions about criminal records are not clear enough or their policy on criminal records is not easily accessible. The review should ask – is it the applicant’s mistake, or have we asked a misleading or confusing question? Have we provided any guidance to ensure applicants know how to answer our questions? How can we avoid this happening in future?
Checklist
- We tell applicants clearly what, when and how they are expected to disclose
- We recognise that disclosure legislation is complex, and that mistakes are easy to make
