Aim of this guidance
If you ask applicants about criminal records you will need to assess any information disclosed. This guidance will explain what factors to consider when assessing an applicant’s criminal record.
Start with the role
Any assessment of a criminal record should start with the role. Understanding the duties and responsibilities of the role will determine whether a job is covered by the Rehabilitation of Offenders Act and the right level of DBS check (if any).
The answers to the following questions will form the basis of your assessment.
- What are the responsibilities of the role? (for example, the role may involve looking after cash or entering customers’ homes)
- Are there any clear links between the responsibilities of the role and the circumstances of the offence?
- 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?
- What 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?
- What measures are in place to mitigate any concerns?
Identifying concerns related to the role will help you make a better assessment of the relevance of an applicant’s criminal record.
Factors to consider
Having established the duties and responsibilities, there are a number of factors to consider when assessing a criminal record. These include:
- Age / time
- Circumstances at the time
- Change in circumstances
- Why it’s being disclosed
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 working with children, offences involving serious violence, sexual abuse or serious drugs offences will often be relevant, whereas many offences involving dishonesty (such as fraudulently claiming benefits) will generally not be.
- For roles 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.
If you decide a criminal record is not relevant, you can appoint without any further assessment. If it is relevant, there are some other factors to consider.
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 consider the details.
- 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?
After looking at what offences might be relevant, you should consider the seriousness of what has been disclosed. A DBS certificate will list the name of the offence and the disposal (the punishment) but it won’t provide information about the circumstances. That’s why it’s essential to ask applicants what actually happened and to consider the other factors discussed here.
The sentence can be a way of determining seriousness. A caution indicates the circumstances were less serious. Magistrates Court deals primarily with more minor offences, whereas a Crown Court mostly deals with more serious offences. However, 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.
Similarly, a prison sentence is generally a strong indication of the seriousness. However, we now know that people from minority ethnic groups are sentenced more harshly than white people who have committed the same offence. Sentencing also varies depending on where the court is – rural locations are more likely to hand down prison sentences than city courts.
The progress of a case through the courts can also affect sentencing. A woman in fear for her safety who assaults her abusive partner may be convicted of ABH. However, an abuser 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.
A serious offence doesn’t mean someone is automatically a risk to your business or to others. People who have served long sentences for serious offences reoffend less often than people who serve short sentences.
- Burglary can range from breaking into shops to targeting elderly people and stealing from their homes.
- The offences of “common assault” and “actual bodily harm” can range from slapping a friend on a night out (often recorded as common assault) to intentionally attacking someone.
- 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 a teenage relationship where one party is under the age of consent to sexual 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 cocaine (a class A drug). Supply offences range from sharing with a friend to trafficking drugs into the country.
Consider whether the person has multiple offences, or whether they committed a single offence. Don’t assume that multiple convictions is a pattern of offending – many people receive multiple convictions for a single incident. If there is a pattern, consider any underlying factors and what has changed since.
- 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.
- 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 since
Look at the person’s age and the length of time since the offence was committed. People tend to ‘age out’ of crime naturally and an offence committed as a young adult does not indicate the person is a risk indefinitely. If someone has committed an offence later in life, it may indicate that something changed at that time. In general, the more time that has passed since, the less likely someone is to commit a crime.
- The law on criminal records disclosure considers the length of time since a key factor in recognising that people can and do stop committing crime. For example, the Rehabilitation of Offenders Act is based primarily on the time passed to determine whether a conviction becomes spent. Likewise, the DBS filtering system for standard and enhanced checks.
- Offences 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, especially where 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 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 is different. 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 that helps reassure you.
- 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.
- Someone whose offence took place against a backdrop or domestic abuse, or other trauma may find it very emotional to talk about what happened.
- Every offence, and every situation, is different. You might not need to consider all of the above for every situation.
Try to understand the applicant’s attitude to their offences.
- Looking back, what is their attitude about what happened?
- Consider whether you think the applicant is being open and honest.
- Bear in mind that there is no reliable way to assess whether someone is remorseful, and remorse is not indicative of whether someone will commit a further offence. Someone who has talked about their past many times, or is describing something from a long time ago, may find it difficult to convey emotion about it.
- How genuinely 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.
- If the conviction is recent, can a reference be sought from their probation officer or support worker 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 all convictions after they become spent, unless they become filtered, 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
- 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.
- 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.
- It’s up to you: Very few people are banned from working with children and/or vulnerable adults.
- Dates: Take into account the fact that the conviction date can often be much later than when the offence was committed.
- Assess: Focus on the concerns you have and consider what measures you can put in place to mitigate these.
- 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
- We have a criminal record assessment template that you can use and tailor to your organisation.
- Find more information about assessing criminal records here
- For further advice about this guidance, please contact us.