“Have you ever been convicted” or “Do you have a criminal record” — is there a difference?

Do you spot the difference?

To the unlearned eye, they might seem to mean the same thing? But they’re not. And I think there’s something to be said for how we should understand the difference better.

One of the problems I often see in the UK is a lot of confusion about whether somebody needs to disclose something for a particular job. That’s often because they’re confused by the different levels of checks, but also by the weird and wonderful range of questions that they get asked — there’s thousands of different varieties floating around.

It’s also not helped by some of the “overly legalistic” way that employers are often advised to “ask” people — this in itself can send people into a frenzy.

For example, here’s two that I’ve seen in the UK recently:

  1. For insurance — “Have you ever been convicted or received any other court disposal, or police caution? Please note this is subject to the Rehabilitation of Offenders Act 1974.”
  2. For a teacher — “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)?”

Essentially, the first question is trying to ask for “unspent” convictions. But it says “have you ever”, so saying “no” feels uncomfortable. It also makes reference to the ROA, but doesn’t explain what “subject to” means.

The second question is trying to ask for things that wouldn’t be “filtered” by the DBS. But “protected” is a legal phrase, and listing an Exceptions Order hardly makes this easier to understand.

Here in Spain, they have one main form of ‘criminal record check’ — it’s known as a ‘Criminal record certificate’. I’ll go into detail in another post about how these work, but in short, they’re a bit like ‘basic disclosures’ that we have in England and Wales, but instead of ‘spent’, they have a concept of ‘cancelling’ (not deleting!).

Now, going back to the questions in the title — imagine answering the first question — “Have you ever been convicted”;

  1. What do we actually mean by “convicted”? I’m not sure if they have equivalents in Spain, but ‘absolute discharges’ are not technically ‘convictions’ in the UK.
  2. What do we mean by “ever” — do we mean “ever” — i.e. at any point in their life? What if someone’s conviction is now “spent” or “cancelled” — do they have to say “yes” to this?
  3. To me, this question is a very “personal” one — it’s a direct question to an individual, asking them whether they’ve been convicted. That sounds simple — basically, if you’ve been convicted, you say “yes”. But this is confused when we introduce the concepts of “spent” and “cancelled”.

Now, looking at the second question in the title — “Do you have a criminal record”;

  1. The only question that is important here is what we mean by “criminal record”. If we’re clear about that, it should be quite simple
  2. Basically, you have to disclose anything that is defined as “a criminal record”
  3. In Spain, this is fairly simple. So far, I’ve only discovered one type of ‘criminal record check. So, if you’ve got things on here, you have to disclose them if you’re asked this question. If you’ve got nothing on here, you have nothing to disclose.

This seems fairly straight-forward.

The added complication in the UK (and I suspect possibly in Spain too, although I’m only guessing there) is that we have a number of different “levels” of criminal record check — namely, basic, standard and enhanced. So how does that work?

The answer is that you might have a number of answers. But the question, broadly, stays the same. Everything that gets disclosed on any of these checks is that your ‘criminal record’ is in that context.

One important point here would be to make sure that it was clear what “level” the question related.

So, instead of the “Have you ever” for insurance applications, you would have a question like; “Do you have a criminal record (that would be disclosed on a basic disclosure)”

For a teacher, instead of a long, convoluted question about “protected” stuff,you would have a question like; “Do you have a criminal record (that would be disclosed on an enhanced disclosure)”

It might not be immediately obvious why this might be important. For me, it’s critical.

Many employers ask misleading questions, they don’t make it clear what people do and don’t have to disclose, and many people are forced to “legally lie” to questions that are inappropriate — for example, many “basic-level” jobs (like working in a supermarket) will ask “Have you ever been convicted”. Technically, if it’s “spent”, you don’t have to disclose. This is known as a ‘legal lie’. But people feel uncomfortable about this, and a lot don’t even realise that’s the law.

There’s also another reason. Legally, there’s no getting away from the factual accuracy of “have you ever been convicted” — if you have, then you answer “yes”.

But, if you focus on “do you have a criminal record”, this forces you away from whether you’ve been convicted, and instead you look at whether it’s on your record. One little-publicised area of criminal records in the UK is the concept of ‘recordable’ and ‘non-recordable’ offences. I won’t go into them in detail here, but in short, it means that many minor offences are not recorded. With this in mind, it means your answer to the two questions are different — for non-recordable offences (generally), you were convicted, but it’s not on your criminal record.

Confused yet…..? Exactly!

Part of our job is to make sure that employers and others asking for criminal records are doing so in a fair and transparent way. It’s also critical that individuals understand what they do and don’t have to disclose.

One of the problems with our criminal records system is that it’s very confusing. We have to explore ways of keeping it simple. To me, shifting away from some of the “legal” approach that has been taken in the past, and moving towards a much more simple way of asking for this information will be better all round.

Of course, this means that, behind the question, there’s a need to make sure people know where to go to easily find out what will and won’t be disclosed, but that’s the next step…..

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