Police interviews, cautions and convictions

Always seek legal advice if you are a suspect in a criminal investigation.  You are always entitled to legal aid in the police station so the advice will be free.  If the allegation is work related, we can help you so contact us.

If you are asked to attend the police station or meet with an officer, it is important to clarify whether you are being asked to give a statement as a witness or to attend an interview under caution as a potential suspect. If the alleged offence is work related and you have been invited to an interview under caution or are arrested, please contact us without delay. You should be represented by one of our agent solicitors or by the duty solicitor, unless we advise otherwise.

Please do not discuss the case with police officers outside the formal interview setting (usually at the Police station). Assume that all custody areas are covered by CCTV with audio save for the room that you will use to discuss matters with your solicitor. The interview itself will be recorded and can be used as evidence in any future prosecution as can any significant statement about the offence which you make to the police at any point. Before the interview begins, you will hear ‘The Caution’, this is a formal warning which states that:  

• you do not have to answer police questions
• any information given can be used as evidence against you
• if you choose not to answer questions it may harm your defence as the court will consider your potential reasons for remaining silent.

As a suspect you may be asked to attend an interview voluntarily (known as a “Caution plus three” interview). If this happens you should still contact us to discuss your circumstances. You should bear in mind that if you decline to attend a voluntary interview, you may be arrested if the police believe it is necessary.

Occasionally, as a suspect you may be arrested prior to interview. The police may take DNA samples, fingerprints and photographs. Information about the arrest is also likely to appear on an enhanced criminal records certificate and must be declared on international visa waiver applications. The police should only make an arrest if arrest is necessary (S.24 Police and Criminal Evidence Act 1984). 

All registered nurses and nursing associates attending police interviews may have their interview contents disclosed to the NMC. This also applies to material given to any prosecuting authority in your capacity as a witness or informant, and whether or not an arrest has been made. If the police choose to disclose this information they should, if it is practicable or desirable, inform the registered nurse and give them time to seek advice.

Registrants are reminded of the Duty of Candour and the requirement under the NMC code that they have an obligation to assist with investigations as witnesses. 

If you have concerns that you have been asked to assist as a witness but have actually committed or might be suspected of committing a crime which would come to light if you assist, please contact us to discuss. If you have no reason to believe your status will change from witness to suspect, you do not usually need to seek legal advice.

Being arrested does not mean that you will be charged however, these cases can be complex and require more time with your appointed solicitor. If you are involved in a case of this nature, please contact us immediately. Although it can be a distressing time, we are here to help you.

Always seek advice from a solicitor or accredited police station representative on what to say, or not say, in an interview.

We use the word 'caution' differently here:

• a 'caution' is a formal acknowledgment of guilt
• 'under caution' is the term given to the warning about your words at an interview being used at a trial.

Do not accept a police warning or caution before talking to an RCN legal adviser or Duty Solicitor. If you are receiving support from a Duty Solicitor, please also ask them about the possible implications for your registration. Bear in mind that criminal lawyers do not always have experience in regulatory law and the NMC code in particular.

A police caution can be offered at the discretion of the police where a suspect makes full admissions in interview.  It provides an alternative to prosecution in Court where you will have to pay costs or a fine. Although this may seem like an attractive option, it can have similar implications for your career to a conviction.  This is because by accepting a caution you are agreeing to the facts behind the allegations and these facts cannot be challenged at an NMC hearing or DBS/DS decision-making process. If you are in this position, please contact us without delay.  

A caution will be kept on police records permanently and can be used in court when sentencing is considered in any future incidents that may arise. You will usually sign a form acknowledging that you agree to the caution and admit to the offence. For some sexual offences, even the administration of a caution can trigger compulsory entry to the Sex Offenders’ Register.

As a health care worker, any caution or conviction is likely to appear on your Enhanced Criminal Record Check. If you are considering challenging the inclusion of a caution or conviction in your ECRC, please see our advice on disclosure and barring services and contact us if you would like to pursue the matter further.

A ‘conditional caution' is identical in its long term implications to a 'simple caution' except that it requires you to fulfil certain conditions to avoid the matter going to course and resulting in a potential conviction. If you receive a conditional caution, you will have to comply with the specified criteria of the caution which will be explained to you by the police or your solicitor. If you do not comply with the conditions, you could be charged with the crime and go to Court for plea and sentencing.

Refusing a police caution does not automatically mean that you will face a prosecution for the allegations you face, however, that is almost always the case because the police can introduce your admissions in interview as evidence of guilt before a Court.

Registrants are under a duty to report police cautions to the NMC. Before speaking to the NMC please contact us. 

The NMC code, rule 23.2 states that you must tell the NMC and your employers:

"as soon as you can about any caution or charge against you, or if you have received a conditional discharge in relation to, or have been found guilty of, a criminal offence (other than a protected caution or conviction)”.

If you accept a caution, the NMC will treat the facts within it as proven. Please see the NMC’s information on cautions and convictions.

Penalty notices are issued for some criminal offences. Although you do not have to disclose these to the NMC, you should be aware that the enforcement agency, or a third party involved in the case, may refer the issue to the NMC. 

On the spot fines may be recorded on the Police National Computer and are likely to appear on any Enhanced Criminal Record Check. 

If you have already reported the matter to the NMC and they are seeking to investigate further, please contact us.

Driving offences - Speeding

The NMC will not usually require you to inform them of a  speeding penalty or fine. See the NMC's guidance on Criminal offences we don't investigate. The NMC will only investigate a driving offence if it is closely linked to your professional practice, or if there is a health concern.

The RCN legal team will not support motoring offences but we will support you if the offence affects your NMC registration.

If you are considering self-referring to the NMC, please see our guidance on NMC: Fitness to practise concerns. If you have already reported the matter to the NMC and they are seeking to investigate, please contact us.

Driving offences - Drink driving

Drink-driving, drug-driving and other offences that result in disqualification could call your fitness to practise into question, but only where they are closely linked to your practice or call your health into question.  They are dealt with by the NMC on a case by case basis.  Read more about this on the NMC’s website. 

The RCN legal team will not support motoring offences but we will support you if the offence affects your NMC registration.

If you are considering self-referring to the NMC, please see our guidance on NMC Fitness to practise concerns. If you have already reported the matter to the NMC and they are seeking to investigate, please contact us.

If your employer wishes to hold an investigation/disciplinary process at the same time as an ongoing police investigation, please contact us immediately. We believe that the fairness of any criminal proceedings could be jeopardised by any employer investigation and would usually request that any internal processes are paused until the police matter is closed. However, if you employer insists upon proceeding with a disciplinary process and has a reasonable belief and sufficient evidence to proceed, then they are entitled to do so.

If you are a registrant, your NMC code (section 23.2) places an obligation on you to inform your employer about “any caution or charge against you, or if you have received a conditional discharge in relation to, or have been found guilty of, a criminal offence (other than a protected caution or conviction)”.

In addition, your employer could be advised about your caution or conviction by the police or third party. It would also be revealed in your next Disclosure and Barring Service (DBS) check. Failure to disclose a caution or conviction may be seen by your employer as breach of contract, and may lead to an investigation by the NMC in relation to your honesty and integrity.

If you are not an NMC registrant the general rule is that it is better to be honest and up front with your employer. It is best practice to inform your employer immediately if you have received a caution or conviction. You can then choose the best moment for making a disclosure and will have the opportunity to put forward any mitigating circumstances.

In July 2013 the Ministry of Justice suggested that employers should use the following question as a template for their recruitment and hiring processes: ‘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) by SI 2013 1198’.

Whether a matter is not ‘protected’ is beyond the scope of this advice.  If you believe that this may apply to you please contact us for further advice.

If you receive a caution or conviction whilst you are a student, you should inform the appropriate person at the university before it is revealed in a future Disclosure and Barring Service (DBS) certificate.

Your programme provider must consider how the caution or conviction may impact on your nursing. They are acting on behalf of the NMC when they select students and must make decisions with public protection in mind.

You will also need to personally inform the NMC about any convictions, cautions or matters relating to your character when you apply to the register for the first time. You cannot rely on the university to do this for you. if you have any concerns, please contact us.

The NMC website offers you further guidance.

If you have a caution or conviction and need to renew your registration, please read the relevant NMC guidance.

Failure to report convictions or cautions correctly at the time of registration or renewal may be treated by the NMC as an incorrect or fraudulent entry and as a result they can remove you from the register or not allow you to re-register.

If you are considering taking part in any type of protest, there are a few things you may wish to consider, particularly if you might be risking arrest.

If you are a registered nurse or nursing associate, your NMC code requires you to ‘keep to the laws of the country in which you are practising’. Any caution, conviction or charge must also be declared to the NMC and your employer and may have consequences for your registration. The NMC will  form a view about the seriousness of any breach of this professional standard on a case by case basis. Even if the NMC does not impose a sanction, most employers will ask if you have ever been referred to the NMC in their application form.

Similarly, if you are a student, you will probably have to declare convictions and cautions to your university, and it might affect your right to remain on your course. You will have to declare them as part of your ‘good character’ declaration when you apply to join the NMC register.

Additionally, cautions and convictions show up on DBS certificates, which may affect registrants and non-registered nursing support workers. DBS certificates have to be seen by employers before they can confirm your appointment.

Some countries ask for a declaration about your criminal record when you seek a visa to travel there.

If you are in the UK on a visa any caution or conviction may also impact on your immigration status. 

Gov.uk  - Disclosure and Barring service

RCN advice guide on the Disclosure and Barring service