Practical guidance – Factors to consider when assessing criminal records

Aim of this guidance

This guidance is aimed at supporting you in assessing the criminal records of applicants. It deals with a number of factors that you should consider.

It’s part of our guidance on assessing criminal records, and is closely linked to guidance on carrying out a criminal record assessment.

This particular guidance is focused on how to base your assessment on actual concerns that are relevant the role. That’s why it’s broken down into the following sections:

  1. Factors to consider for a particular role
  2. Factors to consider when assessing an individual’s criminal record

These concerns can be documented as part of a criminal record assessment.

Why this is important

There are details on why it can be important to consider factors relating to criminal records here.

Factors to consider for a particular role

How relevant an applicant’s criminal record is to the role they’ve applied for will vary depending on lots of things, including the responsibilities, tasks and circumstances of the work.

There are questions below that cover the types of considerations that you might want to give when deciding on the relevance of certain offences to a particular role.

Some of these might have been considered when determining what level of criminal record check should be carried out. However, the purpose of considering these questions again at this stage is to enable you to consider them in light of an applicant’s criminal record;

  1. What are the responsibilities of the role? (for example, the role may involve looking after cash)
  2. Are there any specific links between the responsibilities of the role and an opportunity for the applicant to re-offend in the workplace?
  3. Does the role involve direct contact with third-parties (customers or clients), or other colleagues, who are children or who are vulnerable? If so, how often would this happen and in what context? (for example, is there direct contact with children away from other adults, or is there only passive contact in open spaces?)
  4. What is the level of supervision that the person will receive? Are there significant parts of their role that are unsupervised? If so, what’s the nature of this unsupervised work? (e.g. depending on the level of supervision, a role working with children might be classed as ‘regulated activity’ and so a person barred from working with children would not be legally allowed to do it. However, they wouldn’t be prevented from roles that are not classed as ‘regulated activity’, such as working in a call centre or in a supermarket)
  5. What measures are in place to mitigate any particular concerns?

These are factors that can be considered as part of the assessment process.

Factors to consider when assessing an individual’s criminal record

On the basis of the information that the applicant provides about their criminal record, both on the self-disclosure form and disclosure discussion, you should take into account the following: (there’s more information on each below)

  1. Relevance
  2. Nature
  3. Seriousness
  4. Pattern
  5. Age / time
  6. Circumstances at the time
  7. Attitude
  8. Changes in circumstances
  9. Why it’s being disclosed

Relevance

You should consider whether an offence is relevant to the role in question. Every role is different.

  • For roles involving finance, financially-related offences and offences involving dishonesty will often be regarded as relevant, whereas offences involving violence may not be if the position doesn’t involve contact with members of the public.
  • For driving roles (e.g. a coach driver), drink-driving offences will often be relevant, yet offences involving money may not be.
  • For roles that involve working with children, offences involving serious violence, sexual abuse or serious drugs offences will often be regarded as relevant, whereas offences involving dishonesty (such as fraudulently claiming benefits) will generally not be.
  • For roles involving working with vulnerable adults, violent and sexual offences will generally be regarded as relevant. For work with older people, minor drugs offences will generally be less relevant than if the work involves working with teenagers. Offences involving dishonesty (such as theft from an individual) may be regarded as more relevant to working with vulnerable people because of the position of trust that the individual may have, but offences such as shoplifting might not be.
  • There are a range of offences (such as most driving and public order offences) that have little relevance to most roles working with children or vulnerable adults.

Nature

Applicants shouldn’t be discounted simply because they have a certain type of offence on their record. You should look at the actual offence the individual committed and then look at how relevant it is the role (see above).

  • Financial offences – Was it theft or fraud?
  • Violent offences – What was the nature of the violence? Was it against a vulnerable person?
  • Drugs offences – Was it possession or did it involve supply?
  • Sexual offences – Was physical contact involved?

Seriousness

After looking at what offences might be relevant, you should consider the seriousness of what has been disclosed. Offence categories and codes cover a wide variety of offences. The name of the offence can often make the offence sound more serious than it actually was. That’s why it’s extremely important to gain further details of what actually happened and to consider other factors.

  • Burglary can range from breaking into shops to targeting elderly people and stealing from their homes.
  • The offences of “common assault” and “grievous bodily harm” can range from slapping a friend on a night out (often recorded as common assault) to intentionally attacking someone (which may be recorded as grievous bodily harm).
  • Arson can range from making a fire to keep warm to intentionally setting out to destroy property and endanger lives.
  • Sexual offences can range from urinating in the street on a night out to indecent assault, rape and other very serious offences.
  • Motoring offences can range from speeding to causing death by dangerous driving
  • Drugs offences can range from possessing cannabis for personal use to possessing heroin (a class A drug) and selling it in a nightclub (which can result in a conviction for possession of a controlled drug with intent to supply).

It’s also important to consider how it was dealt with at court. This is often a useful way of determining seriousness. A Magistrates Court deals primarily with more minor offences, whereas a Crown Court mostly deals with more serious offences (although some people choose for their case to be heard in a Crown Court if it is a triable either way offence – so it’s important not to assume that simply because it was dealt with in a Crown Court that it means it was a serious offence. ).

Whether an offence results in a prison sentence is also worth bearing in mind. Although there can be sentence fluctuations (for example during the London riots in 2011, a number of people were sentenced to prison), generally it is a strong indication of the seriousness.

There can also be sentencing factors to consider. Take, for example, an individual who is in fear of their safety and assaults somebody who was threatening them. They may convicted of ABH. However, an individual who caused serious injury with intent (i.e. they committed GBH) may also be convicted of ABH (a lower level of seriousness) as a result of agreeing to plead guilty at court.

Pattern

You should look at whether the person has a pattern of offending, or whether they committed a single offence.

  • If they committed a number of offences, is there a significant gap between the offences, or were they over a particular period of time? Those with a pattern of offending up until quite recently might not be able to demonstrate that they have stopped offending. Clear evidence of a break in the pattern of their offending can be important, especially for drink and drug related offences.
  • Even if there was a pattern of offending, you should consider how much time has passed since (see below) and what their motivation was for offending, and why they are no longer doing so. The vast majority of people stop offending at some point, and the time since their last offence is an important indicator of this.

Age / time

You should look at the person’s age and the length of time since the offence was committed. Most people that commit offences do so when they are in their teens and early twenties.

  • Disclosure legislation takes into account the length of time as being a key factor in recognising that people can and do stop committing crime. For example, the Rehabilitation of Offenders Act is based primarily on time that has passed to determine whether a conviction becomes spent. The DBS filtering system for standard and enhanced checks does likewise.
  • Offences that are disclosed on official criminal record certificates can be very old. They may not be relevant for most roles because of how long ago they were and it being clear that the person has not offended since.
  • The highest rate of reoffending is in the first year of release from prison. After 2 years has passed, the reoffending rate drops dramatically.
  • Research shows that criminal convictions that are more than 7 years old are not predictive of a person’s likelihood of committing a further offence.

Circumstances at the time

You should look at the circumstances surrounding the offence and the explanation provided by the applicant.

  • Each offence will have circumstances surrounding it. It may not be necessary to go into each offence in detail, but some questions about what happened, who was involved (if appropriate) and why it happened might be helpful.
  • In most cases, you should be looking for a clear explanation. This explanation should help to reassure you about what the offence actually involved.
  • Did they show any remorse? Did they try to make reparation to any victims involved?
  • Where there any aggravating or mitigating circumstances? There may have been personal circumstances involved at the time, including issues with accommodation, education, employment, management of finances and income, lifestyle and associates, relationships, drugs and alcohol, emotional well-being or health.

Every offence, and every situation, is different. You might not need to consider all of the above for a particular situation.

Attitude

You should try to understand the applicant’s attitude to their offences.

  1. Looking back, what is their attitude about what happened?
  2. Consider whether you think the applicant is being open, honest and taking responsibility, rather than making excuses or minimising their offences.
  3. How genuine do they come across? Are they sincere?

Changes in circumstances

Having reviewed the circumstances at the time of the offence (above), you should then look at the  applicant’s circumstances at the time of them applying for the role.

  • The vast majority of people (including those with a pattern of offending) eventually turn their lives around and stop committing crime. There will often be clear evidence of this by the length of time it’s been since their last conviction.
  • You should take into account whether the applicant’s circumstances have changed since they last offended. Talking to them about what they’ve done since their last conviction will give you a better understanding. Even if it was quite recent, significant changes could have take place.
  • What responsibilities have they taken on? Many people stop offending once they have family responsibilities.
  • Have they addressed past issues that led to their offending?
  • People with recent convictions can still reach the point where they want to put their offending behind them and put their skills towards a more positive lifestyle. Even if the offences are quite recent, if the offence is not related to the role, you should still consider.
  • Can a reference be sought from their probation officer or support worker to provide a secondary source to support the efforts they’ve made?

Why it’s being disclosed

You shouldn’t assume that because an individual has had to disclose their offence for the role in question, that it is automatically relevant to the role.

For most jobs, spent convictions do not need to disclosed. However, the law that determines this can result in some strange anomalies.

For example, an individual is applying for a job in a supermarket. Just under 5 years ago, they were sent to prison for 8 months for theft from their employer. This is spent now and so it wouldn’t need to be disclosed.

However, another individual is applying for the same job. 4 years ago they were given a fine for drink-driving. This is still technically unspent and so would need to be disclosed.

For roles that involve standard and enhanced checks, the official disclosure will reveal pretty much all convictions, even long after they become spent, even if they have no direct bearing on the role in question. For many offence categories, you might want to consider whether the offences are ‘spent’ as a helpful indication of whether they are relevant, as many spent convictions, due to length of time and nature of offence, are no longer relevant even though they still appear on the official disclosure.

Good practice tips

  1. Deal with each individual on a case-by-case basis: No two individuals have exactly the same criminal record and circumstances. Avoid banning specific categories of offences.
  2. Tailor your approach: Don’t have a long list of irrelevant questions. Ask questions that you think might help you to better deal with the concerns you have.
  3. It’s up to you: Very few people are banned from working with children and/or vulnerable adults.
  4. Dates: Take into account the fact that the conviction date can often be much later than when the offence was committed.
  5. Assess: Focus on the concerns you have and consider what measures you can put in place to mitigate these.
  6. Get support: If somebody is on licence, or being supervised in the community, there may be a role for their probation officer to assist in providing further information.

Examples of good practice

Internal recruitment processes can be difficult to share publicly. However, we’re keen to feature anonymous examples of good practice here, so if you’ve got a suggestion, please get in touch.

Examples of bad practice

To illustrate why this guidance is important, we’re looking to include some examples where practice could (and should) be improved.

  • We regularly see employers that refuse applicants on the basis of seeing something in writing – whether that be a self-disclosure form or official disclosure – without taking the opportunity to consider all of the factors that this guidance suggests.

Frequently asked questions

This section will be added to over time, responding to the common questions we receive about this guidance.

Useful resources

We have a criminal record assessment template that you can use and tailor to your organisation.

More information

  1. There is more information about assessing criminal records here
  2. For further advice about this guidance, please contact us.

Has this been useful?

Let us know if this guidance has been useful. Have you used it in your organisation? Has it helped you to change your policy or practice? Please let us know so that we can show the impact of this guidance and continue to help others.

You can let us know by:

  1. Writing a comment on this page (see below)
  2. Sending your feedback directly to us
  3. Emailing us at recruit@unlock.org.uk

 

This guidance was last updated in February 2016

Is there anything wrong with this guidance? Let us know – email recruit@unlock.org.uk

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  • james

    i have a shpo and on licence now finding employment is hard soon as i say i have it its a no how do i improve my chances of getting work?

  • spompeytransportvideo

    Can some one tell me for CERTAINTY, if an SHPO/SOPO can be given on conviction to lengthen the period of Notification on the SOR? I was given 5 years on the SOR but at the same time an indefinate SOPO back in 2015. This was for a minor breach of my SOPO so I was already subject to the register ONLY because I recieved a SOPO back in 2007 for absolutely NO OFFENCE! I need some one to guide me to definitive legislation so I can appeal to the High Courts over this matter….Many thanks

  • Darren

    Hi,
    There is a link above to challenging a court decision but no information on how to apply for a variation to my SHPO.
    What is the process if I want a variation to remove unnecessary restrictions?

  • Josh

    At sentencing I was placed on the sex offender’s register for 5 years, on a probation order for 3 years and 5 years on a SHPO,I did not take much notice of what the judge were saying cos I was shaking and crying and very scared because this was to be my first ever conviction, anyways during my time at probation,because I weren’t sure about things I’ve asked my probation officer about how long my sentence would be and my probation officer said that I was subject to the sex offenders register for 5 years(which I already knew) and they said I was subject to a SHPO until further notice,which I don’t understand because the courts said 5 years and probation say until further notice, I’ve always taken it as that I’m on a SHPO for 5 years, can you advise me on what to do? Also, when my time on the sex offender’s register ends on 14/10/2021 do I automatically come off it, will I be notified by post phone etc.. .or do I have to go to the police station to make an application to come off