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 call us.

The RCN can help you with finding a solicitor if you are suspected of a criminal offence that is related to your work as a nurse. 

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 call 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, that you make to a police office 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 call us to discuss your circumstances.

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 PACE). 

All registered nurses 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.

Nurses are reminded of the Duty of Candour and the requirement under the NMC Code of Conduct 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.

We are seeing an increase in investigations and arrests under this heading. 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 call 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.

A police caution can be offered at the discretion of the police where a suspects makes full admissions in interview.  It provides an alternative to prosecution in Court where you will have to pay costs or a fine and can be an attractive option.  However it can have similar  implications for your career to a conviction.  This is because the NMC is likely to look at the facts of the offence alongside the outcome.

By accepting a caution you are agreeing to the facts behind the allegations, and these facts cannot be challenged at the NMC hearing or DBS/DS decision-making process. If you are in this position, please call us without delay.

A caution will be kept on police records permanently and can be used in court when sentencing is considered. However, it will be considered separately from any convictions if the cautioned person is later convicted of an offence. 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 nurse or HCA, any caution or conviction is likely to appear on your Enhanced Criminal Record Check. If you wish to challenge the inclusion of a caution or conviction in your ECRC please contact us and see our advice on disclosure and barring services.

If you receive a ‘conditional caution', you will have to comply with certain rules and restrictions as part of your caution. 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.

Nurses 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. This may lead to an investigation. If you accept an on the spot fine you are not admitting to, or have been found guilty, of the crime. Some offences, for example shoplifting, may be recorded on the Police National Computer and should 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 call us for advice on 0345 772 6100.

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 registered Nurse or Midwife, 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 seek further advice from us.

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.

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.

If you have a drug or alcohol related conviction which is your first offence, the NMC will request a written reference from your GP, occupational health doctor or nurse practitioner seeking confirmation that you are medically fit to practise.

If you declare a second or subsequent offence, you will be invited to attend medical testing and/or a medical assessment.

For more information see the NMC guidance.   

Please call us if you are in this situation and feel you need help – we are here to support you.

Gov.uk  - Disclosure and Barring service

RCN advice guide on the Disclosure and Barring service