Confidentiality clauses have been routinely used in many employment settlement agreements and other disputes and are usually described as being Non-Disclosure Agreements, or “NDAs” in which the parties to a disagreement settle their differences.
Often this is a monetary payment to the claimant who then undertakes, in lieu of such, not to make certain disclosures.
The Victim and Prisoners Act 2024 comes into effect on 1st October 2025 and will have significant impact upon the usage of such clauses.
Section 17 of the Act applies to any NDA made on or after 1st October 2025. Under the new regime, any confidentiality clauses are void and unenforceable if they prevent anyone who is the victim of a crime, or who reasonably believes that they are the victim of a crime, from making any disclosures to “permitted” bodies, including:
- Law enforcement: Police or other bodies investigating or prosecuting crime.
- Legal advisors: Seeking legal advice.
- Regulated professionals: Obtaining professional support, such as therapists.
- Victim support services: For obtaining support.
- Regulators: Cooperating with regulatory investigations.
- Authorised representatives: Persons authorized to receive information on behalf of the above.
- Close family: For the purpose of obtaining support (child, parent, or partner of the person making the disclosure).
Disclosures will be permitted to the police or other bodies which investigate or prosecute crime, for the purpose of allowing those bodies to investigate or prosecute the crime.
Previously an NDA did not routinely allow the discussion to extend to support agencies.
Under the Act, a Victim of Crime is defined as someone who has suffered harm as a direct result of being subjected to conduct which constitutes a criminal offence in England and Wales, or any of the circumstances outlined in section 1(2) of the Victims and Prisoners Act 2024. This includes physical, mental or emotional harm and economic loss. It also extends to those who have seen, heard or directly experienced the effect of criminal conduct.
This is regardless of whether they have told anyone about that crime, including reporting it to the police. There does not have to be a formal investigation or a conviction for someone to be a victim of crime or to reasonably believe they are a victim of crime. It also extends that definition to someone who reasonably believes that they are the victim of a crime.
What the act makes clear though is that certain disclosures will still not be permitted and will still attract confidentiality. By way of example, the following would still be protected under an NDA:
- A disclosure that is not made for the specified purpose related to the relevant conduct. For example, you cannot make a disclosure to a permitted person (ie qualified lawyer) for the purposes of placing the conduct within the public domain.
- A disclosure not covered by the exemptions, for example the release of financial or commercial information.
- A disclosure to any person, group or body not specified in the legislation unless otherwise exempt.
The important thing for most businesses is to make sure that settlement agreements and any NDAs are now up to date and compliant. Keith Wood has decades of defending Serious Organised Crime and serious fraud cases. He has an excellent reputation for client care and immaculate case preparation.
Contact Lewis Nedas on tel. 020 7 387 2032 or via our website online enquiry form