Clarify your status: witness or suspect?

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. 

Important: 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 please contact us or complete our online form. You should be represented by one of our agent solicitors, or by the duty solicitor, or a solicitor of your choice, unless we advise otherwise.

Registrants are reminded of the duty of candour and that they have an obligation under the Nursing and Midwifery Council (NMC) code 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 that would come to light if you assist, please contact us or complete our online form. If you have no reason to believe your status will change from witness to suspect, you do not usually need to seek legal advice.

Outside the interview setting

The interview

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). You should bear in mind that if you decline to attend a voluntary interview, or if you try to leave a voluntary interview, you may be arrested if the police believe it is necessary.

Some regulatory bodies, for example the Care Quality Commission, can use enforcement powers that include cautions and criminal prosecutions. If you are asked to attend an interview under caution, please contact us as soon as possible.

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.

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 your RCN appointed legal adviser or duty solicitor, or solicitor of your choice. If you are receiving support from a duty solicitor, please also ask them about the possible implications for your NMC 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 would 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 Disclosure and Barring Service (DBS) or Disclosure Scotland (DS) decision-making process.

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 through the DBS or DS. If you are considering challenging the inclusion of a caution or conviction in your DBS/DS check, please see our advice on disclosure and barring services and contact us if you would like to pursue the matter further.

Conditional caution

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 court 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 caution

Refusing a police caution does not automatically mean that you will face a prosecution for the allegations against you; 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. Please see NMC: Self-referrals for more information and guidance. 

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

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 DBS/DS 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 they 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 provide support for motoring offences, but we will support you if the offence affects your NMC registration and you were in the correct category of membership at the time of the incident.

If you are considering self-referring to the NMC, please see NMC: Self-referrals for more information and guidance on what to do next. If you have already reported the matter to the NMC and they are seeking to investigate, please contact us.

Driving offences: drink or drug-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 provide support for motoring offences but we will support you if the offence affects your NMC registration and you were in the correct category of membership at the time of the incident.

If you are considering self-referring to the NMC, please see NMC: Self-referrals for more information and guidance on what to do next. If you have already reported the matter to the NMC and they are seeking to investigate, please contact us.

If your employer wants to hold an investigation or disciplinary process at the same time as an ongoing police investigation, please contact us immediately.

The RCN believes 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 your 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, the 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 informed about your caution or conviction by the police or a third party. It would also be revealed in your next Disclosure and Barring Service (DBS) or Disclosure Scotland (DS) 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.

'Protected' matters

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 while you are a student, you should inform the appropriate person at your university before it is revealed in a future Disclosure and Barring Service (DBS) or Disclosure Scotland (DS) 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.

Please see our guidance for members on attending a demonstration or protest. 

Gov.uk  - Disclosure and Barring service

RCN advice guide on the Disclosure and Barring Service (DBS) or Disclosure Scotland (DS)