The guidance will help charities in England and Wales understand the automatic disqualification rules (‘the rules’) for trustees and some senior managers with criminal records. The rules do not apply to people working or volunteering for social enterprises and other forms of voluntary organisations. We have published separate guidance for people with criminal records hoping to become a trustee or senior manager.
More than 11 million people in the UK have a criminal record and it is important that the rules do not discourage charities from recruiting them. Inclusive recruitment, along with service user involvement, are increasingly important to charities. The rules make this harder to achieve – both because they disqualify a larger group of potential trustees and because they create an administrative burden for charities. Clinks State of the Sector survey in 2017 found that 20% of charities working with people in the criminal justice system recruited service users to their board. By 2019, just 12% of charities reported doing so.
Roles covered by the rules
The rules apply to all trustees and some senior managers including the roles of Chief Executive and Chief Finance Officer (and their equivalents). These roles are referred to as ‘restricted positions’. If someone is disqualified they will need a waiver in place before they can take up the position.
Identifying restricted positions
Roles with responsibility for the overall management and control of the charity’s finances are covered by the rules. Each charity is different and you will need to identify which positions in your organisation are affected. Guidance from the Charity Commission includes examples of roles covered.
Things to consider
- Trustees are covered by default
- A chief executive (or equivalent) is likely to be covered if they have overall responsibility for day to day management and control of the charity and/or they are directly accountable to the board of trustees
- A chief finance officer (or equivalent) is likely to be covered if they are in overall management and control of the charity’s finances and/or they are directly accountable to the chief executive or the trustees
- Job titles are irrelevant – it is the function and responsibilities of the position that matter
- It is likely that only a small number of positions will be covered – these will usually be paid positions, but it is possible for volunteer positions to be covered too, as well as permanent, temporary, part time or interim roles
- The size of the charity and the number of its staff or volunteers are not relevant.
- The automatic disqualification rules do not apply to any other paid or voluntary roles in charities.
Criminal records that the rules apply to
A person is disqualified if they have a relevant criminal record. There are two groups affected:
- People with an unspent conviction for a disqualifying offence
- People subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (often referred to as being “on the sex offenders register”), regardless of whether the conviction is spent or unspent.
Where a person has an unspent conviction for an offence in one of the following categories, they will be disqualified.
- A dishonesty or deception offence
- including theft, fraud by false representation, and fraud by failing to disclose information.
- Terrorism related offences
- to which Part 4 of the Counter-Terrorism Act 2008 applies; or
- under sections 13 or 19 of the Terrorism Act 2000 under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) in relation to the offence
- Particular money laundering offences * – An offence within the meaning of section 415 of the Proceeds of Crime Act 2002
- An offence under sections 1,2,6 or 7 of the Bribery Act 2010
- An offence under section 77 of the Charities Act 2011 – contravening a Commission Order or Direction
- Offences for misconduct in public office, perjury or perverting the course of justice
- Attempting, aiding or abetting these offences – In relation to offences at 1-6 above, an offence of:
- attempt, conspiracy, or incitement to commit the offence
- aiding or abetting, counselling or procuring the commission of the offence
- (under Part 2 of the Serious Crime Act 2007) encouraging or assisting in relation to the offence
Offences not covered by the rules include TV licence evasion, most motoring offences, benefit fraud, assault, violent or drug possession or supply offences.
Dishonesty or deception offences
The majority of people disqualified by the rules will have an unspent conviction for a dishonesty or deception offence. This means that dishonesty or deception form an element of the offence in legislation that has to be proved for someone to be convicted of the offence. Dishonesty and deception may form part of the circumstances of many offences, but this is not the same.
There is no definitive list for charities to check against. If an individual tells you about something, you can look at the official legal reference to see if dishonesty or deception forms an element of the offence that has to be proved for someone to be convicted of the offence.
If unsure whether a conviction is categorised as dishonesty or deception contact the Charity Commission .
If someone is disqualified they can still be involved with charities in other paid and volunteer roles, or in advisory positions. They can also apply for a waiver.
Read more: recruiting to restricted positions