Our helpline was recently contacted by an individual who was concerned about the statement and question being asked on a charity’s volunteer application form about criminal records. Their policy stated:

Recruitment of ex-offenders – Because of the type of volunteering role, involving contact with vulnerable people, you are required by the Rehabilitation of Offenders Act (ROA) 1974 to disclose all convictions including spent convictions. Having a conviction will not necessarily prevent you from becoming a volunteer.”

The application form asked:

Have you ever been convicted at a court or cautioned by the police for any offence?”

Most of the volunteer roles with the charity were exempt from the ROA and therefore applicants could be asked to disclose both spent and unspent convictions. However, applicants didn’t have to disclose any protected (filtered) cautions/convictions and therefore the statement and question were misleading.

We contacted the charity on several occasions but didn’t feel that they were addressing the issues that we had raised with them. We felt that we should refer the matter to the Information Commissioners Office (ICO) which led to the charity amending the wording on their volunteer statement and form. It now stated:

Recruitment of ex-offenders – The role description for this position clearly states that this position is exempt from the Rehabilitation of Offenders Act 1974 and so requires applicants to disclose all convictions and cautions, even if they are spent, unless they are filtered. Please complete the section and sign the declaration below; the information will be kept confidential.”

And asked:

Have you ever been convicted in a court or cautioned by the police for any offence (unless they would be filtered from a DBS check)  Yes/No”

The statement and question made it clear that applicants don’t need to disclose any protected (filtered) cautions or convictions.

Lessons

This case demonstrates that even charities who are permitted to ask for disclosure of spent and unspent convictions can make the mistake of failing to be clear that ‘protected’ cautions/convictions don’t have to be disclosed. This could potentially lead applicants to over-disclose and the charity holding information unlawfully under the Data Protection Act 2018.

By changing the wording in their statement and question, the charity are now fully compliant with data protection regulations.

Links

There’s information on wording questions about criminal records on our Recruit site.

Notes about this case study

This case study relates to our work with other organisations

Names and details have been changed to protect the identity of those involved.