Do I have to declare my conviction/caution?
Professionals with cautions or convictions will see that information appear through DBS checks and will need to declare it - with some exceptions.
For many healthcare professionals who received a caution or were convicted as an adult, that information will appear on your DBS certificate and will need to be declared in applications for employment. However, there are important exceptions where a declaration may not be required.
Enhanced DBS checks
For any doctor or dentist looking to secure employment it will be necessary as part of the application process to provide an enhanced DBS. This can cause some anxiety for those who have received a conviction or caution in the past. In a highly competitive job market there may be an understandable about the potentially prejudicial effect of declaring offences which may have occurred long ago.
Historically, healthcare professionals did not benefit from the protection offered by the Rehabilitation of Offenders Act 1974, because jobs in that sector were exempt for the purposes of the Act. This exemption meant that applicants had to declare spent convictions and cautions when applying for such roles. However, reforms in recent years have resulted in changes to the regime. A key feature of those changes is the introduction of ‘protected’ convictions and cautions that mean even healthcare professionals will not be required to disclose convictions and cautions which meet certain criteria.
Subject to certain other requirements (set out in further detail below), protected convictions and cautions will be ‘filtered’ from a DBS check. In order to determine whether a conviction or caution is protected reference must be made to the list of offences which are exempt from the protection. This list contains offences that will not be filtered out. A copy of the exempt list can be obtained from the Government website.
The position in respect of disclosing adult convictions/cautions is summarised here:
An adult conviction will not be declared on your DBS certificate if:
- 11 years have elapsed since the date of the conviction, and
- it is your only conviction, and
- it did not result in a custodial or suspended sentence, and
- it does not appear on the list of offences which will never be removed from a certificate (the exempt list).
If you have more than one conviction then the details of all your convictions will be included.
In the event that you are 18 years or older and have received an adult caution (including reprimands and warnings), such a caution will not be declared on your DBS certificate if:
- six years have elapsed since the date of the caution, and
- the offence for which the caution was received does not appear on the list of offences which will never be removed from a certificate (the exempt list).
There is no limit to the number of cautions that can be filtered.
Please note: there are alternative provisions for juvenile convictions or cautions, but above is the position where a conviction or caution has been received as an adult.
Employers are also prohibited from requiring applicants to declare convictions or cautions which are ‘protected’ and must take care with the wording of questions on application forms. The recommended wording for any application form for a position requiring enhanced disclosure is:
‘Do you have any convictions, cautions, reprimands or final warnings that are not ‘protected’ as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)?’
Provided the criteria set out above are satisfied and the offence remains protected, no declaration in response to this question needs to be made.
However, healthcare professionals should also keep in mind that, for any role requiring enhanced disclosure, there is the potential for the police to disclose information on your enhanced DBS if the Chief Police Officer reasonably believes that such information is relevant and ought reasonably to be disclosed. This could be any information held on the Police National Computer and may include information related to a filtered protected caution or conviction.
Quality Assurance Framework
When deciding whether to make a disclosure, the Chief Police Officer must follow a decision-making framework, known as the Quality Assurance Framework. However, prior to including any such information on your enhanced DBS certificate, the police may contact you to advise of their intention to disclose such information and ask you to provide representations if you oppose the inclusion of such information. Providing a response can help to frame the information included, even if the Chief Police Officer does not accept your representations that no information should be disclosed.
See your personal criminal record before the check
If you are unsure as to what information might be held as police intelligence, or indeed, what you should be disclosing, you should obtain a copy of your personal criminal record by submitting a subject access request to the police. This can take up to 40 days to be returned so please consider this timeline when making your request.
For further guidance on declaring cautions, contact our employment law solicitors.