Information for students on the fit and proper person checks

You have a duty to disclose any ongoing criminal investigations, pending prosecutions and spent or unspent criminal convictions, cautions, or final warmings, except those which are “protected” by law. Subject to your ongoing duty to self-disclose matters whilst you’re a student member of an Inn, disclosures are required at two separate points: at the point of admission to an Inn, via self-disclosure; and at Call to the Bar, via self-disclosure and, from 1 July 2021, a Standard DBS check; where relevant, the international equivalent checks will also be required. Disclosure of a criminal matter will not automatically result in an application being refused.

As the regulator of barristers in England and Wales, we have powers to require all students to disclose any criminal offences they may have committed in the past. These powers are set out in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“the Exceptions Order”) as amended by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013. These powers apply equally to applicants from the UK or overseas.

Protected and filtered convictions and cautions

Certain minor offences will become protected and are automatically removed or filtered from Standard DBS criminal record certificates, if certain criteria are met.

The following time periods must have passed in order for a conviction or caution to become protected.

• Cautions (for over-18s) - six years from the date of caution
• Cautions (for under-18s) - two years from the date of caution
• Convictions (for over-18s) - Eleven years from the date of conviction
• Convictions (for under-18s) - five and a half years from the date of conviction

Only certain offences are capable of being protected or filtered and some offences, known as listed offences, will never be protected or filtered. Listed offences must be disclosed, regardless of the above. Listed offences include serious violent or sexual offences and other certain offences. These can be found on the Disclosure and Barring Service website.

Convictions will only be protected if the offender received a non-custodial sentence and has no other convictions. Suspended sentences involving a custodial sentence are classed as ‘custodial offences’ even if no time was spent in custody.

If you have a previous conviction, caution, reprimand or final warning which is capable of being protected, you will not be asked to disclose this information and you are legally entitled to withhold the details of anything that would now be considered protected when self-disclosing for the purposes of being admitted to an Inn or being Called to the Bar.

If you have a protected conviction, caution, reprimand or final warning, it will automatically be filtered, and it will not appear on a Standard DBS certificate that is undertaken before you are Called to the Bar. Although information that is filtered will be removed by the DBS from a Standard DBS certificate, it does not get ‘removed’ or ‘wiped’ from police records.

Regardless of your nationality, if you are applying to be Called to the Bar, you will need to state whether you have lived in another country continuously (or in total) for twelve months or more in the five years preceding your application and, if you have, you will also be required to undertake the equivalent to the Standard DBS criminal record check in all relevant jurisdictions.

Those applying for admission with convictions, cautions or final warnings from jurisdictions outside England and Wales are advised that the same protections will apply. However, if you are unsure whether you have protected criminal matters, we advise you to seek advice or obtain an equivalent criminal record check to ensure that they are equivalent to those in England and Wales before making disclosures. The Home Office has prepared guidance for obtaining criminal records checks from overseas.

If you are still unsure whether you should disclose a criminal record matter, you can:

• seek advice from a specialist organisation such as Unlock or Nacro (see below);
• obtain a copy of your record by completing a subject access request (this can be done online or through a local police station); or
• speak to your Inn’s relevant officer.

Disclosure and Barring Service (DBS) reports       

When you complete your Admission Declaration, you will need to agree to your Inn undertaking a Standard DBS criminal record check. Applications from candidates to be Called to the Bar at the ceremonies being held from 1st July 2021 onwards will include a requirement to undertake a Standard DBS criminal record check and an equivalent check in all relevant jurisdictions, where appropriate.

What will be contained in the ‘Standard’ DBS certificate?

Standard DBS checks will disclose all convictions and cautions (including youth cautions, reprimands and warnings) held on the Police National Computer (PNC) which are not protected, ie filtered.

You can find the list of offences that will never be filtered from a criminal record. These can be found on the Disclosure and Barring Service website.  For those requiring overseas criminal records checks, the Disclosure and Barring Service advise it is not possible to capture a definitive list of all equivalent offences under the law of all other jurisdictions.

You must disclose any other matters (other than protected convictions and cautions), which might reasonably be thought to call into question your fitness to become a practising barrister. Your Inn or the ICC will take into consideration if you have:

• been responsible for behaviour:
  • which is dishonest;
  • which is threatening, violent or harassing; and/or
  • where there is evidence of unlawful discrimination towards others;

• misused your position to obtain advantage;
• misused your position of trust in relation to a vulnerable person;
• been responsible for other forms of behaviour which demonstrate that you cannot be relied upon to discharge your duties as a barrister;
• been declared bankrupt, entered into an Individual Voluntary Agreement (IVA), or have had a Relevant Order made against you; and/or
• have received treatment or a diagnosis for a condition (including addition to drugs or alcohol) which means you may pose a risk to any member of the public or which may impair your judgment as a practising barrister.

Disclosures regarding treatment or a diagnosis for a condition (including an addiction to drugs or alcohol) will not automatically result in an application being refused.

You must disclose any previous academic or disciplinary findings against you by a higher education institution, particularly deliberate action which amounts to plagiarism or cheating to gain an advantage for yourself or others.

You must disclose any previous or pending supervisory action, complaint, investigation, disciplinary proceedings or disciplinary findings against you by a professional or regulatory body, including in any jurisdictions outside England and Wales. This will also include whether you have:

• failed to disclose information to a regulatory body when required to do so, or have provided false or misleading information;
• been refused registration by a regulatory body; and/or
• failed to comply with the reasonable requests of a regulatory body.

Following a disclosure, your Inn will consider the extent to which your conduct calls into question whether you are a fit and proper person. They have a number of powers, which include dismissing the matter or advising you about your future conduct.

If your Inn is concerned that your conduct could call into question whether you are fit and proper, and their powers are insufficient, they will refer your case to a screening panel of the ICC.

In the event of a referral, your case will be reviewed by a screening panel. The panel will either conclude that the matter referred does not bring into question whether you are a fit and proper person and, in those circumstances, will remit it to the referring Inn. If the screening panel does conclude that there is evidence to suggest that you are not a fit and proper person, it will refer your case to a hearing panel.

If your case is heard at an ICC hearing, it will consider all of the evidence and you will have the opportunity to make either an oral or written submission. The hearing panel has a number of sanctions which it may impose, depending on the severity of your conduct. These range from a warning to expelling you from your Inn (see below). The rules and procedure governing this process can found here.

Evidence can be provided via a self-disclosure, DBS report or third-party report, as outlined above. Your Inn or the ICC will consider all other evidence and may consider the below information (where relevant):

• references;
• where appropriate and/or available, an independent report relating to the event(s), such as sentencing remarks following a criminal conviction;
• evidence of any rehabilitation (eg probation reports, references from employers and/or tutors);
• your attitude towards the event(s);
• credit check information (in relevant circumstances); and
• actions you have taken to clear any debts, satisfy any judgments and manage your finances.

This is not an exhaustive list and we would encourage you to read through the decision making guidelines for further information.

The onus is on you to provide any evidence you consider necessary and/or appropriate. Your Inn has the right to carry out their own investigation and (unless and until the matter is either referred back by a screening panel or determined by a hearing panel) to refuse your application for admission or Call to the Bar.

Your Inn or the ICC will assess all evidence to assist their decision as to whether you are a fit and proper person. The below factors will also be considered (where relevant):

• your age at the time of the behaviour under consideration;
• the length of time which has passed;
• whether it was an isolated incident;
• whether there has been more than one incident;
• whether the incident(s) were linked to professional practice;
• whether there was substantial financial harm to vulnerable creditors or others;
• whether the circumstances were beyond your control and/or could not have been reasonably foreseen;
• whether use of drugs or alcohol was a factor;
• whether the matter was disclosed to your employer, educational establishment and/or regulator;
• whether you pose a risk to clients or members of the public; and
• whether there is evidence that your judgment was or continues to be impaired.

The above is not an exhaustive list and we would encourage you to read through the decision making guidelines for further information.

When considering any criminal offences, the ICC will consider any aggravating or mitigating factors, such as:

• the nature of the offence;
• the seriousness of the offence;
• the sentence received;
• whether there is a pattern;
• circumstances at the time; and
• your attitude towards the events.