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For people with criminal records
For people with criminal records

Unlock Category: 1. About criminal records

‘How long do I have to disclose my criminal record for?’ – A detailed guide to the Rehabilitation of Offenders Act 1974

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Police, Crime, Sentencing and Court Bill (PCSC) – What does it mean for you?

Which cautions and convictions will be removed from a standard or enhanced DBS? – A brief guide

Download: Which cautions and convictions will be removed from a standard or enhanced DBS? [PDF]

You can find further information in our new guidance – Criminal records that don’t show (stay) on a standard or enhanced DBS checks (filtering and protected cautions and convictions)

In July 2020 the government announced plans to change the rules of what is disclosed on (and removed from) standard or enhanced criminal record checks issued by the Disclosure and Barring Service (DBS) in response to a Supreme Court ruling in 2019. The changes came into effect on 28 November 2020. This brief guide explains what those changes mean. Find out more about the changes here.

What information can be removed from standard or enhanced DBS checks?

Some cautions and spent convictions can become ‘protected’. Once protected, they are ‘filtered’, meaning they won’t be disclosed on standard or enhanced DBS checks.

Filtered cautions and convictions do not appear on a standard or enhanced DBS check. However, they are not ‘removed’ or ‘wiped’ from police records.

  • If you’re applying for a job or role that involves a standard or enhanced DBS check, cautions and convictions that are filtered won’t be included on results of the check.
  • If you’re carrying out a standard or enhanced DBS check as an organisation, you should be clear to applicants that they do not have to disclose any cautions or convictions that are filtered and you must ignore any filtered cautions/convictions if you become aware of them.

What are the key changes?

There are two main changes to the current rules that happened in November 2020:

  1. Reprimands, final warnings and youth cautions are no longer disclosed: Regardless of the offence, reprimands, final warnings and youth cautions are no longer disclosed on any DBS check.
  2. Multiple convictions can be filtered – Provided the offence is eligible and didn’t lead to a suspended or actual prison sentence, convictions can now be filtered from standard and enhanced DBS checks after the relevant time period has passed, even if there is more than one conviction or offence on record.

What is staying the same?

  1. The list of offences – the “offence rule” – The list of offences that cannot be filtered has not changed. Read our list of common offences that can be filtered here. The full list of offences that cannot be filtered, published by the DBS, can be found here.
  2. Prison sentences – the “sentence rule”– Convictions that resulted in a prison sentence (or suspended sentence) cannot be filtered.
  3. The time periods – The time periods before adult cautions and spent convictions can be removed remain the same.

These changes apply to what is disclosed for jobs and roles that involve a standard or enhanced DBS check. The rules for what is disclosed on basic criminal record checks are set out in the Rehabilitation of Offenders Act 1974 (ROA). Basic checks show unspent convictions. Once a conviction is spent, it will not be disclosed on a basic check. Read our guidance on the Rehabilitation of Offenders Act 1974.

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Examples of how the new rules will affect existing criminal records

Marcus was a teenager when convicted of 6 offences of theft between 1992 and 1994. Under the new rules these will no longer be disclosed on standard or enhanced DBS checks as the convictions happened more than 6 years ago, when Marcus was under 18.

Sasha was convicted of 4 counts of benefit fraud in May 2012, when she was 31. Under the new rules, these will be removed from standard or enhanced DBS checks in May 2023, 11 years after Sasha was convicted as an adult.

Anita received a reprimand for arson at age 11, and a final warning for ABH at age 14. The new rules mean reprimands and final warnings, issued to under 18s and since replaced by youth cautions, will never be disclosed on standard and enhanced checks, regardless of the offence.

Lenny was convicted of ABH at age 14. He received a youth referral order. His conviction will continue to be disclosed on standard or enhanced checks because he was convicted of an offence that is on the list of offences that cannot be filtered.

Kyle accepted a youth caution for common assault in 2001, when he was 16. He was convicted of drug possession in 2010 when he was 25 and paid a fine. His youth caution will never be disclosed on standard or enhanced checks. His conviction for drug possession will be removed from checks in 2021 – 11 years after the date of conviction.

Abdi was convicted of drink driving in 2009 when he was an adult – he was disqualified and paid a fine. Three years later, he was convicted of drink driving again and was sentenced to 12 weeks in prison, suspended for a year. Abdi’s first conviction will be removed from a standard or enhanced DBS check this year, 11 years after he was convicted. His second conviction will always be disclosed because he received a suspended prison sentence.

Flowchart

 

 

 

Criminal records that don’t show (stay) on standard and enhanced DBS checks (filtering and protected cautions and convictions)

Aim of this information

In July 2020 the government announced plans to change the rules on what is disclosed on (and removed from) standard and enhanced criminal record checks issued by the Disclosure and Barring Service (DBS). This was in response to a Supreme Court ruling in 2019. This information sets out the filtering process incorporating the changes made by the government that came into effect on 28 November 2020.

Note – This information focuses on how the filtering process works in England and Wales

Disclosure Scotland has guidance on the filtering process that applies to standard and enhanced checks in Scotland on their website.

The Department of Justice in Northern Ireland has guidance on the filtering process that applies to standard and enhanced checks in Northern Ireland on their website.

Why is this important?

If you are applying for a job or role which is ‘exempt’ from the Rehabilitation of Offenders Act and which requires a standard or enhanced DBS check, your DBS certificate will disclose details of all spent and unspent cautions and convictions unless they are eligible for removal (often referred to as filtered or protected).

If your criminal record meets the criteria set out below it will automatically be removed from your DBS certificate at the time an application is made.

Many organisations ask individuals for some kind of criminal record self-disclosure at application stage and it’s important therefore to know whether your offence will be removed from your DBS certificate to ensure that you do not disclose it to an employer if, legally, you don’t need to.

Background

Since May 2013, standard and enhanced DBS checks stopped disclosing all cautions and convictions after the introduction of a process referred to as ‘filtering’.

In July 2020, in response to a Supreme Court ruling in 2019, the government announced further changes to the process which came into force on 28 November 2020. These changes will see more people benefiting from having cautions and/or convictions removed from standard and enhanced certificates, allowing them to apply for jobs without the need to disclose old cautions and/or convictions.

‘Filtering’ is similar to the rehabilitation periods under the Rehabilitation of Offenders Act 1974. However, instead of establishing what is ‘spent’ and doesn’t get disclosed on a basic check, ‘filtering’ establishes what doesn’t get disclosed on a standard or enhanced DBS check.

Information that is filtered will be removed from a DBS check automatically at the point you apply for one. However, cautions and convictions do not get ‘removed’ or ‘wiped’ from the Police National Computer (PNC).

Recent changes to the criminal records disclosure regime

The changes which have been made to the criminal records disclosure regime apply to jobs and voluntary roles that involve a standard or enhanced check issued by the Disclosure and Barring Service (DBS). The new rules mean that:

  • Warnings, reprimands and youth cautions (including conditional cautions) will no longer be automatically disclosed on a DBS certificate.
  • The multiple conviction rule has been removed. This means that individuals with more than one conviction will have each conviction considered individually against the criteria, rather than all being automatically disclosed.

How filtering works

What will be disclosed on a standard or enhanced DBS check?

The rules around what cautions and/or convictions are automatically disclosed are set out in legislation. The table below provides details of what a standard or enhanced certificate must include:

* A full list of specified offences can be found on the DBS list of offences that will never be filtered.

What will not show up? Cautions

  • Reprimands, final warnings and youth cautions (including conditional cautions) received when under the age of 18 will be removed from standard and enhanced checks immediately, regardless of the offence. This means that even if your caution was for a specified offence it would still be removed.
  • Adult cautions will be removed from standard and enhanced checks if 6 years have passed since the date of issue, providing it is not for a specified offence.

The process applies no matter how many cautions you have. Cautions will be removed even if you have others which are not (for example where others are for a specified offence or they are too recent).

What will not show up? Convictions

Convictions received when 18 or over will be removed from standard and enhanced checks if:

  • 11 years have passed since the date of conviction.
  • they did not result in a prison sentence (or suspended sentence).
  • they were not for a specified offence.

The process applies no matter how many convictions you have. They will be removed even if you have others which are not (for example where others are for specified offences or they are too recent).

For a conviction received when under 18, the same rules apply as for adult convictions, except that the elapsed time period is 5.5 years.

Offences that stay on (‘specified offences’)

A ‘specified offence’ is one which is on the list of offences that will never be filtered from standard and enhanced DBS checks. The list includes a range of offences which relate to sexual or violent offences, or are relevant in the context of safeguarding.

The table below provides a summary of the types of offences which are eligible for removal and those that are not.

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Find out whether your conviction/caution will be filtered

To establish whether your caution and/or conviction is going to be removed from your standard or enhanced check and, doesn’t need to be disclosed to an employer, you can use our flowchart below:

Positions not covered by filtering

There are a small number of jobs where filtered cautions and/or convictions can be taken into account. Some examples of this include police vetting for police constables and cadets. A court ruling in 2017 established that the filtering rules should be applied by the police when recruiting for other roles such as service support officers. Other positions include:

  • Judicial appointments;
  • Constables and persons appointed as police cadets to undergo training with a view to becoming constables and naval, military and air force police;
  • Any office or employment in the Serious Fraud Office or in the National Crime Agency;
  • The Commissioners for Her Majesty’s Revenue and Customs and any office or employment in their service;
  • The Official Solicitor and his deputy;
  • Certain appointments to the office of Public Trustee;
  • Any office, employment or other work which is concerned with the establishment of, operation of, or access to a database under section 12 of the Children Act 2004;
  • Firearms dealer; and
  • A person who is required to obtain an explosives certificate.

Disclosure of criminal records in these instances is not provided by the DBS.

Prison and probation roles are not exempt from the filtering rules and applicants can therefore legally withhold details of cautions/convictions which are removed from standard and enhanced DBS checks.

Other information disclosed on enhanced DBS certificates

In addition to cautions and convictions recorded on the PNC, enhanced certificates may also include police intelligence (approved information) if a chief officer of a police force considers it relevant. The disclosure of this information is subject to statutory guidance but the police could, in principle, disclose information about offences which have been filtered from an enhanced certificate if they felt that it was relevant to the position applied for and ought to be disclosed.

We have not previously seen any evidence of this but we would be interested in hearing from anybody who has had filtered cautions/convictions disclosed on their enhanced DBS certificate. Please email us at policy@unlock.org.uk.

If you use the DBS Update Service

If you are signed up to the DBS Update Service it is important to note that the filtering of a caution or conviction would not lead to a status change. A status change is only prompted when there is new information to be added, or an offence needs to be changed or amended, or because you have become barred. An offence which has been filtered would mean the removal of information from your certificate.

If you require a new certificate which does not show cautions or convictions which have been removed, you will need to apply for a new DBS check.

If an organisation currently holds information about your criminal record

In order to comply with data protection legislation any organisation that keeps criminal record information will need to consider how they manage the data they hold.

If you have previously disclosed details of your criminal record to an employer, university etc we recommend that you ask them to amend or delete their records as soon as your caution and/or conviction is filtered under your rights of rectification.

Information for employers

Where a role is included in the ROA Exceptions Order, employers can ask about cautions and convictions which are ‘not protected’ (filtered). In light of the changes introduced in November 2020, employers will need to review the questions they ask on application forms together with any guidance they provide.

Further information can be found here.

If an employer takes into account a conviction or caution which has been removed (possibly because it was disclosed in error) then they could be acting unlawfully. You can find further information on our spent and unspent convictions and employment law page.

Examples

Below are some scenarios that will help to explain how the rules work in practice:

Marcus was a teenager when he was convicted of 6 offences of theft between 1992 and 1994. These will no longer be disclosed on standard or enhanced DBS checks as the convictions happened more than 5.5 years ago, when Marcus was under 18.

Sasha was convicted of 4 counts of benefit fraud in May 2012, when was was 31. These will be removed from standard or enhanced DBS checks in May 2023, 11 years after Sasha was convicted as an adult.

Anita received a reprimand for arson at age 11, and a final warning for ABH aged 14. Reprimands and final warnings, issued to under 18’s and since replaced by youth cautions, will never be disclosed on standard or enhanced checks, regardless of the offence.

Lenny was convicted of ABH at age 14. He received a youth referral order. His conviction will continue to be disclosed on standard or enhanced checks because he was convicted of an offence that is on the list of offences which cannot be filtered.

Kyle accepted a youth caution for common assault in 2001, when he was 16. He was convicted of drug possession in 2010 when he was 25 and paid a fine. His youth caution will never be disclosed on standard or enhanced checks. His conviction for drug possession will be removed from checks in 2021 – 11 years after the date of conviction.

Abdi was convicted of drink driving in 2009 when he was an adult – he was disqualified and paid a fine. Three years later, he was convicted of drink driving again and was sentenced to 12 weeks in prison, suspended for a year. Abdi’s first conviction will be filtered from a standard or enhanced DBS check this year, 11 years after he was convicted. His second conviction will always be disclosed because he received a suspended prison sentence.

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 can be found here.

More information

  1. For practical self-help information – We have further information on employment
  2. To discuss this issue with others – Read and share your experiences on our online forum
  3. Our policy work – Read about the policy work we’re doing on this issue
  4. Questions – If you have any questions about this you can contact our helpline.

Get involved

Help us to add value to this information. You can:

  1. Comment on this information (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum

 

 

Single Justice Procedure Notice (SJPN)

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

What is it and who is it issued by?

If you’ve been charged with a minor criminal offence, you may have your case dealt with by a Single Justice Procedure Notice (SJPN). This means that your case will be decided by a magistrate without you having to go to court. Prosecutors that can bring a case include the police, local authorities and the DVLA.

SJPN’s can be given to adults accused of minor offences that cannot result in a prison sentence, for example some driving offences, TV licence evasion and train fare evasion.

How is the process different to a normal court hearing?

You will receive a notice which may provide brief details of the evidence upon which the prosecutor will rely, together with the options available to you. Although you won’t be summoned to a specific court date, you will  be asked to respond to the notice within 21 days.

Pleading guilty

If you plead guilty to the offence, and indicate that you would like to have the matter dealt with in your absence, a single magistrate will consider the case on the basis of the evidence submitted in writing by the prosecutor and any written mitigation you have provided. The magistrate will then decide whether to convict and sentence you, or dismiss the charge.

You do have the option to have your case heard at court; you’ll need to request this when responding to the notice. If you request a court hearing you will be sent a letter with the date, time and venue.

Pleading not guilty

If you plead not guilty to the offence you will need to go to court to present your case. If you’d like to take any witnesses with you, you will need to provide details of this when you return the notice.

It is not essential to have legal representation in court and some people are happy to represent themselves. However many will prefer to either seek advice from a solicitor prior to submitting their plea or have a solicitor represent them at the hearing.

If you plead not guilty but do not attend the court your case will be heard in your absence.

If you do not respond

If you don’t respond by the due date, the court will decide your case in your absence.

The decision

If you attend the court hearing you will be given the decision there and then. If you have pleaded guilty or have been found guilty this will include details of any financial penalty.

If you’re not in court then a letter will be sent to you.

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

Most SJPN’s are for non-recordable offences, meaning they are not normally recorded on the PNC. If it’s not recorded on the PNC, it will not be disclosed on criminal record checks.

However, we have been advised by HMCTS that it would be factually incorrect to say that all SJP offences are non-recordable. As a result, we do not have details on whether it is classed as a conviction, when it becomes spent, whether you have to declare it or whether it is disclosed on criminal record checks. We will update this section once we have more information.

Problems with the Single Justice Procedure Notice procedure

SJPN’s are sent via normal post (not recorded or special delivery) and you only have a limited time in which to deal with them. If, for whatever reason, you do not receive your SJPN or don’t deal with it quickly enough, you could find yourself being found guilty of an offence in your absence and without your knowledge. If you’re unaware that you’ve been found guilty of the initial charge then you may unwittingly commit another more serious offence which could carry more severe penalties.

Having received the SJPN, you are expected to enter a guilty or not guilty plea usually without seeing any of the evidence upon which the police/prosecutor seek to rely. Once you’ve entered a guilty plea, it is very difficult to retract it.

it is not uncommon for people to indicate one plea but then provide additional information on the online form which contradicts the plea. In this situation, the court will have to adjourn and ask that you attend in person.

Under SJP there is a blanket assumption that an individuals income is based on the current national average for pre-tax earnings. Unless the court receives evidence to the contrary, that income level will be used to assess the ability to pay a fine.

Extended sentences

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

 

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

Issued by the court – contact the relevant court.

Does it involve guilt?

Yes

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

Yes

Is it classed as a conviction?

Yes

How long will it be on my record?

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

When does it become spent?

The rehabilitation periods for extended sentences are quite complicated as there are effectively 3 rules:

  1. Extended sentences with a conviction date before 4 April 2005 the rehabilitation period is calculated in line with the length of the sentence.
  2. Extended sentences with a conviction date between 4 April 2005 and 2 December 2012 will never be spent if the offence was committed on or after 4 April 2005. Therefore, where an extended sentence or licence has a conviction date between 4 April 2005 and 2 December 2012 the date the offence was committed will need to be established.*
  3. Extended sentences with a conviction date on or after 3 December 2012 are all excluded from rehabilitation and will never be spent.

* The Police National Computer (PNC) doesn’t state the date that an offence was committed and the DBS will need to contact the local police force to establish this. If the information is not available, they will use the conviction date.

When do I have to declare it?

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

Is it disclosed on DBS checks?

Yes, it will be disclosed on both standard and enhanced checks. Once it becomes spent, it won’t be disclosed on a basic check.

Additional information

Extended Determinate Sentence (EDS)

If the court assesses an individual to be dangerous, they may be sentenced to an extended sentence. The extended sentence is a determinate sentence comprising a custodial term plus an extended period on licence.

The extra period on licence in the community will be determined by the judge based on the ‘length of time considered necessary for the purposes of protecting members of the public from serious harm’. The period should not exceed 5 years for a specified violent offence and 8 years for a specified sexual offence. The total of the custodial term and the extended licence must not exceed the maximum penalty for the offence.

  • The individual has been convicted of a specified offence (a sexual or violent offence listed in Schedule 15 of the Criminal Justice Act 2003) whether the offence was committed before or after this section came into force;
  • The court considers that the individual presents a substantial risk of causing serious harm through re-offending by committing a further specified offence. The “significant risk” test is the same as the test for IPP and therefore they must meet the dangerousness threshold;
  • The court is not required to impose a sentence of imprisonment for life, and
  • Condition A or B is met.

Condition A: at the time the offence was committed the individual had been convicted of a sexual or violent offence listed in Schedule 15B of the CJA 2003.

Condition B: that the current offence merits a determinate sentence of at least 4 years.

Under the pre 3 December 2012 arrangements, release from an extended sentence under the Criminal Justice Act 2003 is at the half way point of the custodial sentence.

For the new EDS (under section 124 of the LASPO Act 2012), release will normally be at the two thirds point of the custodial sentence, unless the custodial sentence is 10 years or more, or the sentence is imposed for an offence listed in Schedule 15B of the CJA 2003, when the case must be referred at the two thirds point to the Parole Board, who will consider whether it is no longer necessary for the protection of the public for the individual to be detained.

Extended Sentence for Public Protection (EPP)

This type of sentence was introduced in April 2005 by the Criminal Justice Act 2003. It was replaced by Extended Determinate Sentence in December 2012 (see above).

For an EPP to be imposed, your offence would need to have been committed on or after 4 April 2005 and you would need to have been convicted of that offence before 3 December 2012.

If you were sentenced to an EPP before 14 July 2008 you will be subject to Parole at the halfway point of your custodial period. If you’re not released on Parole you will be released automatically at the end of the custodial period.

If you were sentenced to an EPP on or after 14 July 2008, you will be automatically released at the halfway point of your custodial sentence.

After release you will be subject to licence until the end of what is left of the custodial period plus the extended period.

If you breach the conditions of your licence, you may be recalled to prison.

 

This page was last updated in January 2025.

GDPR and data protection – Guidance for individuals

Background

On 25th May 2018, the General Data Protection Regulation (GDPR) came into force and the Data Protection Act 1998 was replaced by the Data Protection Act 2018 (DPA18) to incorporate the GDPR provisions which are specific to the UK.

Together, this legislation significantly strengthens the rights individuals have over processing of their personal data. Individuals now have more power to demand that companies reveal or delete any personal data they hold and, where data protection breaches are proven, enforcement action could have serious consequences for organisations with the maximum fine now reaching the higher of £17.5 million or 4% of the company’s annual global turnover.

GDPR and the DPA18 applies to the processing of all personal data. However, criminal records data (including cautions, convictions and allegations) are a separate category of data (“criminal offence data”) and, where organisations collect this information as part of their recruitment process, certain safeguards must be put in place to protect individuals.

This guidance deals specifically with the use of GDPR and DPA18 for recruitment purposes and the collection and processing of criminal record data. It sets out what personal data employers are allowed to collect and process, and the steps you can take if you believe an employer has breached GDPR/DPA18.

What difference will GDPR make to the recruitment process?

From the outset of the recruitment process, employers will ask you to share a lot of personal data (your name, address, contact details, qualifications, work experience etc) to enable them to contact you and assess your suitability for a role.

It has become common practice for many UK employers to ask prospective employees about their criminal convictions and to also carry out formal criminal record checks. The GDPR does not regulate an employer’s ability to carry out criminal record checks but rather an employer’s ability to process the data relating to criminal convictions following these checks.

As a result of GDPR, employers will need to more carefully consider what information it is necessary for them to have and, at what stage of the recruitment process they need it. They will have to be able to fully justify the processing of criminal record data especially where there is no actual legal requirement to do so.

The lawful basis and condition for processing criminal record data

Where an employer wants to process data relating to criminal convictions, they must have a lawful basis for doing so under Article 6 of the GDPR. Every piece of personal data held by an organisation must be justified according to one of six lawful bases. These are:

Where there is a clear reason why an employee’s contract would need an employer to collect criminal record data. For example a recruitment agency providing nursing or teaching staff.

Where the processing is necessary for the employer to comply with the law. For example a school, nursery or care home who, as a result of regulations would be required to carry out enhanced Disclosure and Barring Service checks.

Where processing is necessary to save or protect someone’s life. It is unlikely that any employer would be able to use this as a suitable lawful basis.

Where the processing is necessary as part of official tasks or to perform functions which are in the public interest. For example prison or police officers.

Where an employer has been given explicit and informed consent from an applicant/employee to process personal data. Any employer could use this basis but they would need to offer genuine choice and would have to allow you to withdraw your consent.

Where the processing is necessary for the legitimate interests of the employer and an employer can protect the rights of the individual. Any employer can use this basis but their purpose must be clearly defined.

We believe that the majority of employers are likely to rely on consent, legal obligation and legitimate interest as their lawful basis.

In addition to having a lawful basis, employers who are processing criminal records data will also need to identify a condition for processing. Schedule 1 of the DPA18 states that the condition will be met if:

  1. The processing is necessary for the purpose of performing or exercising obligations or rights which are imposed or conferred by law on the controller or the data subject in connection with employment, social security or social protections, and
  2. The controller has an appropriate policy document in place.

To meet the condition, employers will need to demonstrate that processing is both necessary and have an appropriate policy in place.

Can employers ask about criminal record data and carry out criminal record checks under GDPR?

Asking about criminal records

If an employer wants to know whether you have a criminal record, they cannot ask about cautions or spent convictions unless you are going to be employed in a role which is listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (this would include doctors, solicitors, anybody working with children or vulnerable adults). These employers have a legal obligation to carry out a standard or enhanced DBS check.

For all other roles, an employer can only ask you to:

  1. Voluntarily disclose whether you have any unspent convictions; or
  2. Agree to a basic criminal record check through the Disclosure and Barring Service

If you’re being asked to disclose any unspent convictions, then an employer will need to provide you with details of their lawful basis for asking and also a copy of their privacy policy which should set out the data retention periods and who your data will be shared with.

We do not believe that asking all applicants to disclose at application stage would meet the GDPR necessity test as it is neither a specific nor targeted means of collecting criminal records data and could potentially be a breach of the GDPR and DPA18. Unlock’s guidance for employers on GDPR strongly encourages employers to join the Ban the Box campaign and remove questions about criminal records from application forms.

Automated decision making

Under GDPR you have the right to contest decisions based on automated decision making. This includes decisions on whether or not to shortlist you for employment. We’re aware of application systems that make automated decisions to decline applicants based on their criminal record disclosure although we’re unsure how widespread this practice is.

GDPR does allow employers to make shortlisting decisions on a solely automated basis but insists that they inform you of this and put in place safeguards, including the right for you to request a human intervention in the processing, to express a view and contest the decision.

Carrying out official criminal record checks

Some employers are legally obliged to carry out criminal record checks and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 sets out where standard and enhanced checks can be done for specified roles and professions.

Other employers are able to carry out basic criminal record checks. Some employers will ask you to self-disclose and will base their decision on this information. The GDPR does not prevent employers carrying out basic checks and DPA18 includes a provision to allow checks where it is ‘necessary for the purposes of performing or exercising employment law obligations or rights’. Employers will however now need to demonstrate the necessity of carrying out the checks and identify the lawful basis under which the checks will be carried out.

Asking about criminal records but not verifying the information is unlikely to fulfil the purpose of processing, and could therefore be considered excessive data collection.

The issue with employee consent

Some application forms make it a condition of employment that applicants consent to a check. However, given the imbalance of the relationship between an employer and a job applicant, consent will generally be invalid unless it is freely given. If you’re told by an employer that failure to give consent may have unfavourable consequences for you (for example not getting the job) then this would make it difficult for an employer to rely on consent as their lawful basis.

“Appropriate policy” document

Any employer that is collecting and processing criminal record data as part of their recruitment process must have a policy in place (a privacy policy) which covers the purpose and lawful basis for collecting personal data, the retention period and who information will be shared with. It should also set out an individual’s data protection rights. A copy of the policy should be given to you at the time the information is collected. Employers can be asked to make the document available to the Information Commissioners Office on request.

What other rights do you have under GDPR?

In addition to setting out the data processing principles that organisations need to adhere to, the GDPR also defines the rights that you have to access and control your data. These are referred to as data subject rights and include:

When collecting data from you, organisations must properly inform you of what data they are collecting, what they will be using it for, how long they will keep it and which organisations (if any) they will share it with.

You have the right to contact an organisation and ask them to provide you with details of the data they hold on you. This will include (a) what the data is, (b) why they hold it and (c) what they do with it, including any organisations they share it with.

You have the right to ensure that information about you is correct, and to ensure that information is corrected if it is found to be inaccurate.

Also referred to as the ‘right to be forgotten’. This means you have the right to demand that information an organisation holds about you is deleted, in part or entirely. It’s not an absolute right, and in some circumstances your request could be refused.

You have the right to deny consent for an organisation to process your data even if you have given consent for it to do so in the past. This right is also not absolute and can, in some circumstances be refused. However, an organisation must be able to show you what it is doing with your data so that you can decide to restrict processing if you wish.

This right gives you the opportunity to take the data an organisation holds on you and extract it for use elsewhere.

This allows you to demand that organisations stop using your data in ways you object to.

Finally, with the growth in profiling and the use of data to make automated decisions in say job applications, this provides you with the right to object or appeal against automated decisions that affect you.

What to do when things go wrong

You have the right to expect that your employer or any other organisation will handle your personal information responsibly and in line with good practice. You may be concerned about the way an employer is handling your information if it:

  • Is not keeping your information secure;
  • Holds inaccurate information about you;
  • Has disclosed information about you;
  • Is keeping information about you for longer than is necessary; or
  • Has collected information for one reason and is using it for something else.

You may be concerned that an organisation has not been able to identify a lawful basis for processing your criminal record data or that you’ve been affected by an automated decision making process.

In addition, you may want to consider the ways in which employers store, retain and share your criminal record data. For example:

  • An unspent conviction can become spent during the course of employment and therefore should not be retained by the employer past that point.
  • Access to your data should be limited only to members of staff that require access (for example the HR manager) and should only be disclosed with your consent.
  • Your criminal record data should be transmitted and stored securely due to it’s sensitivity and the level of risk posed.
  • Your criminal record data should be treated separately to other recruitment and employee information (e.g. application forms, payroll etc).
  • When your information is no longer necessary, it should be securely destroyed.

Raising a concern with an organisation

If you believe that breach of the GDPR/DPA18 has occurred then it’s always best to initially raise your concern in writing with the organisation concerned. We have put together a template letter which can be downloaded here.

Other things to remember when raising a concern with your employer:

The longer it takes you to raise your concern, the harder it will be for your employer to look into it thoroughly.

It’s always worth contacting your employer to find out who to send your concern to. It may not be the office where you’re based.

Typed documents are always easiest to read.

Although you might be aware of the relevant legislation relating to your concern, you don’t have to quote it. Just explain clearly and simply what has happened and, what effect it has had on you.

If  you’ve had a long relationship with the employer, make sure you only set out the specific concern you have and nothing that is historic or unrelated.

Although you may be justifiably angry or upset, keep your letter calm and polite as this will help get your points across more clearly.

Ask when you can expect your employer to respond and resist the temptation to contact them again before that.

Include all relevant details to help your employer identify you and your concern.

Send copies of all key documents you have as evidence.

Clearly date all letters, make notes of all related conversations and keep copies of everything.

If the ‘final’ response you receive does not resolve the matter to your satisfaction make sure you follow any appeals process you are provided with.

Raising a concern with the Information Commissioners Office

If your employer is unable or unwilling to resolve your concern, you can raise the matter with the Information Commissioners Office (ICO). Fines for non-compliance with GDPR are much higher than under the previous Data Protection Act 1998. The GDPR introduced “effective, proportionate and dissuasive” administrative fees of up to 4% of annual global or £17.5 million.

Besides the power to impose fines, the ICO has a range of corrective powers and sanctions to enforce GDPR which include:

  • Issuing warnings and reprimands;
  • Imposing a temporary or permanent ban on data processing;
  • Ordering the rectification, restriction or erasure of data.

You will need to raise the matter with the ICO within three months of your last meaningful contact with the organisation.

Taking your case to court

Under Articles 79 and 82 of GDPR, you have the right to take proceedings to court if you believe that your information rights have been breached.

If a court is satisfied that your rights have been breached, it may order that the controller/processor of that data takes steps to comply with its data obligations. You may be able to receive compensation from the data controller/processor if you’ve suffered any material or non-material damage (for example distress).

If you wish to pursue this course of action, we’d suggest that you seek independent legal advice.

Raising a concern with your MP

If you want government to do more to encourage employers to sign up to the Ban the Box campaign and recruit people with convictions then it could be worth contacting your MP if you believe that GDPR/DPA18 has been breached. Your MP may be able to raise the issue with the appropriate Minister or in some cases, make the issue public by raising it in the House of Commons.

Frequently asked questions

Employers have no legal obligation to ask about criminal records at application stage and asking all applicants to disclose at application stage is unlikely to meet the necessity test under GDPR. To meet the test, employers should only be requesting criminal records data from the successful applicant.

You could always agree to a basic DBS check if you’re offered the job. If the employer doesn’t do formal criminal record checks to verify the information you disclose, they could potentially be collecting excessive data which would again breach GDPR.

If it’s an online application form and you get a ‘sorry not suitable’ message after ticking the box, the employer may be in breach of the GDPR’s rules on ‘automated decision making’.

If an employer is asking all applicants to disclose their criminal record on application this is likely to be a breach of GDPR. They should have a privacy policy for you to read that should explain what they ask and why, and how your information is kept. You could raise your concerns with the company’s HR department and if you’re not happy with their response, your next step would be to raise it with the Information Commissioners Office (ICO).

If an employer wants to know whether you have a criminal record, they can’t ask you about cautions or spent convictions unless you’re going to be employed in a role that is listed in the ROA (Exceptions) Order. If you’re being asked to disclose any unspent convictions then the employer should provide you with details of their lawful basis for asking and also a copy of their privacy policy. You should ask them for this if they don’t provide it freely.

If you decide to disclose your criminal record and your application is unsuccessful then you should make sure that you make a request to the organisation to delete your personal data.

The majority of jobs in healthcare are exempt from the ROA (Exceptions) Order 1975 meaning that an employer would be legally obliged to carry out a criminal record check. Before you disclose anything, make sure that the employer is carrying out the correct level of check for the role that you’re applying for.

NHS Employers policy is that, in general, applicants will only be asked about criminal records after they’ve been offered a job.

As the agency will be supplying staff to a workplace where an enhanced DBS check is required, then under GDPR they would probably have a contractual requirement to collect the information.

If an employer needs to ask about unspent convictions then they should provide you with a copy of their privacy policy which explains their lawful basis for asking as well as the process for disclosing and how a recruitment decision will be made.

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

  • Information Commissioners Office – The UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. Also provide advice on how to protect personal information and how to gain access to official records.

More information

  1. Read more – your right to be forgotten
  2. For practical information – We have more information on criminal convictions and data protection
  3. Questions – If you have any questions about this, you can contact our helpline.

Get involved

Help us to add value to this information. You can:

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

Implications of accepting a police caution

Aim of this page

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

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

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

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

Why is this important?

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

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

When are cautions given?

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

Areas of life which may be affected by a caution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When are cautions disclosed?

Basic criminal record checks

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

Standard and enhanced DBS checks

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

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

What should the police advise before issuing a caution?

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

Home Office guidance on cautions states that:

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

Example of a simple caution from Thames Valley Police

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

What happens if I don’t accept a caution?

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

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

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

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

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

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

Personal experiences

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

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

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

Discuss this with others

Read and share your experiences on our online forum.

Key sections include:

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

More information

  1. For practical information – More information can be found on simple cautions (including youth cautions) and conditional cautions
  2. To discuss this with others – Read and share your experiences on our online forum
  3. Questions – If you have any questions about this, you can contact our helpline.

Get involved

Help us to add value to this information. You can:

  1. Comment on this page (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum

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

 

 

Serious Crime Prevention Order (SCPO)

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

 

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

Issued by the court – contact the administering court.

Does it involve guilt?

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

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

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

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

Yes

Is it classed as a conviction?

Yes

How long will it be on my record?

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

When does it become spent?

After the length of the order.

When do I have to declare it?

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

Is it disclosed on DBS checks?

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

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

What guidance is there on fair process?

There is CPS Guidance on Serious Crime Prevention Orders.

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

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

What can a SCPO include?

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

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

An SCPO cannot require a person to do the following:

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

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

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

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

Getting a SCPO changed or removed

Discharging a SCPO

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

Application for discharge may be made by:

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

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

Varying a SCPO

An application to vary a SCPO may be made by:

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

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

Additional information

Determining when a SCPO is appropriate 

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

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

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

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

 

Applying to a court to end a court order

Aim of this page

This page aims to set out the implications of being given a court order, especially if it has no end date (i.e. an indefinite order). It also looks at how you can apply to have an order varied or discharged and what you can do to improve the chances of your application being successful.

Although this page concentrates on varying and discharging Sexual Offences Prevention Orders and Sexual Harm Prevention Orders, much of the information can be applied to other types of court order.

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

Why is this important?

Court orders can have a devastating impact on a person’s private and family life, not only because of the prohibitions that they impose but because, as long as they are in force, a person’s conviction cannot be spent under the Rehabilitation of Offenders Act 1974.  This means that you would be required, if asked, to disclose your conviction when seeking employment or purchasing any financial products.

If you believe that the conditions on your order are too restrictive or you would like to have the end date amended, then it may be worth applying to have it varied or discharged.

What do we mean by a court order?

A court order is an official judgement or ruling issued by a court which sets out what a person can or can’t do. They are often referred to as ancillary orders and are imposed in addition to other sentences or disposals.

Some orders are aimed at redressing the harm caused, for example a compensation order, whilst others aim to prevent re-offending or repeat victimisation such as restraining orders.

In certain situations, a judge must impose an ancillary order, for example a person found guilty of causing death by dangerous driving must be disqualified. In other situations, it’s up to the judge to decide whether it’s appropriate to give an ancillary order, taking into account the circumstances and seriousness of the offence. In these cases, the prosecution will ask the judge to make an order.

There are a number of different ancillary orders including:

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

What are the implications of having a court order?

As far as the Rehabilitation of Offenders Act is concerned, an order can impact on when a conviction becomes spent. For example, a compensation order would only be regarded as spent once it’s been paid in full.

If an order is given a specific lifespan, say 2 years, it will be spent at the end of that period. However in an email to Unlock in February 2015, Disclosure Scotland confirmed that if an order has no duration or no time specified then the default rehabilitation period would be two years. If an order is indefinite (‘has no end date’) then it will remain unspent until you return to court to have it varied or discharged.

If you are given an indefinite order it will also mean that any other disposal given at the same time will never be spent.

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

Varying or discharging a court order

Whatever order you have been given, there will be legislation in place that allows anybody mentioned in the order (for example you, the prosecution or anybody protected by the order) to request a hearing to vary or discharge it.

The process

To apply to have an order varied or discharged you will need to:

  • Apply in writing to the court in which the order was given stating that you wish to make an application to have your order varied or discharged. Your application should explain how your circumstances have changed since the original order was made and the reason why you believe it should be varied or discharged.
  • If applicable, the court may ask for a Victim Personal Statement before the case is heard in order to get a better understanding of what has happened since the order was granted.
  • You will usually be given the opportunity to make representation at the hearing.

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

It is possible to apply to have a SOPO or SHPO varied or discharged at any time. However, a court will only have the power to discharge a SOPO/SHPO 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 5 years, the court does not need the consent of the police to discharge an order in its entirety.

If you are seeking an amendment or discharge of an order, you should try to seek the support of your nominated Public Protection Unit police officer. It may be that an amendment can be achieved by mutual consent and negotiation in advance of any court hearing.

What information will I need to include in an application?

When considering what prohibitions to include in an order, the courts should ensure that it:

  • Minimises the risk of harm to the public or to any particular members of the public
  • Is proportionate and necessary
  • Can be policed effectively

If you feel that any of the conditions imposed on your order are disproportionate, unnecessary or cannot be policed effectively, then you’ll need to explain the reasons why. For example, if you’re trying to find employment, then having a prohibition which states that you can’t access or attempt to access the internet would cause you huge problems.

In any application to vary this condition, you would need to explain the type of job that you’re looking for and provide examples of job sites that would assist you in your search for employment.

If you’re claiming Jobseekers Allowance or Universal Credit, you could provide evidence of your Job Seekers Agreement and explain how difficult it is to meet the target job applications if you’re unable to use the internet.

If you’re looking to have an order discharged completely then there are several things you may wish to consider to improve your chances of success. These include:

  • Providing evidence to show that you have sought help to deal with any issues which led to your offending.
  • Explaining the positive changes you’ve made since the original order was given. This might include moving to a new area to avoid mixing with ‘the wrong crowd’, getting a job or improving your relationship with friends or family members.
  • If you want to have a SOPO/SHPO discharged then you’ll need to show that you have fully co-operated with the terms of the Sex Offenders Register and the requirements of your SOPO/SHPO.
  • If the police regularly inspect your electronic devices ask your supervising officer if he can provide you with the ‘clean bill of health’ given by the police after any unannounced inspection visits.

Will I need to use a solicitor?

Not necessarily. Varying or discharging a court order is achieved through a court acting in a civil capacity rather than as a criminal court. Therefore, representing yourself is a realistic possibility and court staff should be able to advise you on the correct process.

In some cases, solicitors will be able to represent you using the same legal aid certificate which related to the original court hearing.

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

Discuss this with others

Read and share your experiences on our online forum.

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

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

For information

  1. For practical information – More information can be found on our sections on sexual offences and understanding your criminal record
  2. To discuss this issue with others – Read and share your experiences on our online forum
  3. Questions – If you have any questions about this, you can contact our helpline.

Get involved

Help us add value to this information. You can:

  1. Comment on this page (below)
  2. Send your feedback directly to us
  3. Discuss your views and experiences with others on our online forum

 

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