Clampdown on NDAs being used to mask criminal activity

Non-Disclosure Agreements (NDAs) and Criminal Conduct: Legal Implications of the Government’s New Reforms

The government has announced significant reforms to the use of non-disclosure agreements (NDAs), ensuring that victims and direct witnesses of criminal behaviour can no longer be legally silenced by confidentiality clauses.

While the change is primarily designed to support victims, it also carries important legal implications for individuals and organisations who use or are bound by NDAs – particularly where alleged criminal conduct may later come to light.

The amendment to the Victims and Courts Bill forms part of the government’s wider Plan for Change to restore public confidence in the justice system and tackle violence against women and girls.

It follows growing criticism that NDAs have been misused to prevent victims from speaking out about criminal offences, including sexual assault, harassment, or misconduct in professional environments.

What the Reform Means

Under the new law, victims and direct witnesses of crime who have signed an NDA will be free to share their experiences with anyone – including journalists, employers, lawyers, and support organisations – without fear of civil or criminal repercussions.

Previously, many victims believed that speaking publicly or even confiding in close family could expose them to breach of contract claims.

The reform replaces the temporary protections introduced under Section 17 of the Victims and Prisoners Act 2024, expanding their scope and simplifying the legal test.

The key change is that victims and witnesses will have absolute legal protection to disclose information relating to alleged criminal conduct for any purpose, overriding any contractual confidentiality clauses that seek to prevent this.

Understanding NDAs in the Criminal Context

Non-disclosure agreements are legitimate legal tools used to protect commercial information, settle disputes, or maintain confidentiality in sensitive matters.

However, they cannot and should not be used to conceal criminal activity.

In recent years, the misuse of NDAs has attracted public scrutiny following high-profile cases in which victims of harassment or abuse were allegedly paid to remain silent.

This reform aims to ensure that no contractual clause can be used to obstruct justice or prevent disclosure of potential criminal behaviour to the authorities.

From a criminal defence perspective, however, these reforms also create new challenges.

Defendants, employers, or organisations accused of offences must recognise that previous agreements may no longer offer protection over sensitive discussions or settlements involving criminal allegations.

Statements, correspondence, or financial arrangements previously covered by confidentiality could now be disclosed in full.

Potential Implications for Defendants and Organisations

For individuals and companies who have entered NDAs relating to workplace disputes, professional conduct, or other allegations, the implications are significant. In particular:

• Victims or witnesses may now speak freely to the police, press, or third parties about alleged criminal conduct, even if an NDA was signed as part of a prior settlement.
• Employers or institutions that used NDAs to manage reputational risk could face renewed scrutiny, reputational damage, or even criminal investigation if prior agreements are revisited.
• Statements made during negotiations or mediation could potentially be used as evidence in future criminal or regulatory proceedings.
• Defendants must exercise caution when engaging in settlement discussions that include confidentiality clauses relating to alleged misconduct.

While the law does not retrospectively invalidate all NDAs, it makes clear that confidentiality cannot override the public interest in exposing or investigating criminal acts.

“Excepted NDAs” and Limited Confidentiality

The amendment still recognises that some parties may legitimately wish to maintain confidentiality about certain personal or business details.

To this end, the Secretary of State will have powers to establish criteria for “excepted NDAs” – allowing limited confidentiality in defined circumstances, such as protecting commercial information or personal privacy.

Even in these cases, disclosures will always be permitted where they relate directly to criminal conduct or the reporting of suspected offences.

The government has confirmed that the reforms will not affect laws protecting sensitive state or national security information, such as the Official Secrets Act 1989.

Balancing Victims’ Rights and Defendants’ Protections

While the reforms are a positive step toward transparency and accountability, they also raise complex questions for those facing allegations of criminal conduct.

Defendants are entitled to a fair trial and protection from prejudicial pre-trial publicity – both of which could be impacted by expanded disclosure rights for complainants and witnesses.

It will therefore be crucial for courts to balance the need for openness with the fundamental rights of defendants to privacy and due process.

Statements made publicly under these new freedoms could influence investigations or jury perceptions, making early legal intervention vital to ensure fair handling of evidence and media coverage.

Seeking Early Legal Advice

Anyone involved in a dispute or investigation that involves an NDA – whether as a signatory, employer, or accused person – should seek immediate legal advice.

Understanding the boundaries of lawful disclosure, and the implications of the new legislation, is essential to avoid inadvertent breaches or self-incrimination.

Our expertise covers complex areas such as misuse of NDAs and parallel criminal investigations.

How We Can Help

If you – or someone you know – is in need of legal representation for anything mentioned in this article call us now on 0161 477 1121 or email us.