A smarter approach to criminal records?

On the 16th September the Ministry of Justice (MoJ) published it’s much anticipated white paper “A Smarter Approach To Sentencing”. It is a mixed bag, offering  ‘tough on crime’ sentencing measures along with some more positive reforms to criminal record disclosure periods.    

The MoJ says that they want to improve employment prospects for people with convictions, and so reduce reoffending, which sounds great. Given that they have also announced some positive changes you could be forgiven for thinking that reducing disclosure periods might actually ensure better access to employment. Unfortunately it’s a bit more complicated than that. 

Seen in a vacuum the proposals are somewhat progressive. A significant number of people, 15,000 per year, would see their convictions become spent more quickly, and no longer have to disclose them for most jobs. Many other people who have been living with an unspent criminal record for decades would finally be able to move on, as the proposed changes would enable some sentences over four years to become spent. That’s a strong start.  

Here are what the proposed disclosure periods look like in more detail:

There are three things that really jump out.   

Firstly, some sentences over four years would have the opportunity to become spent. The asterisks are quite significant, with most violent, sexual and terrorist offences excluded, which means only about 30% of longer sentences are eligible. But in spite of this, it would still be a big change. At the last review in 2014, even this limited version seemed impossible. 

Secondly, disclosure periods would be generally shortened, which would reduce the period people face discrimination for. This is certainly better than nothing, but the periods are still quite long even compared to other proposals from within Parliament. Lord Ramsbotham’s 2017 bill proposed cutting four year periods to two years, for example, but the MoJ has chosen to ignore this despite cross–party support.  

Finally; the shortest period of disclosures would cover sentences under 12 months, instead of only six months. This is in line with the changes we saw in Scotland, with all magistrates sentences being spent at the same rate . This would result in far fewer cases where the differences between regions and judges leads to a major difference in disclosure length.  

To put these changes into perspective; MoJ figures show 7,980 people were given sentences between six months and one year in 2019/20. At present they have to disclose their convictions for four years; under these proposals they would only have to disclose for one year. Around 7,500 people receive sentences of over 30 months each year, and they would only disclose for four years instead of seven after these changes. 

However, while shortened disclosure periods will certainly help thousands of people get their lives back on track, the white paper still seems to have missed the point. The proposals are a general relaxation, but they do little to actually improve employment prospects.  

The critical time for employment is at the beginning of the disclosure period, not the end. Finding the first job is the hardest part, when discrimination is most felt. Reducing the period of discrimination is positive, but the discrimination is still there and will still hold people back. Even while the MoJ is making the right argument about employment, they don’t offer proposals to tackle this core issue. 

This can be seen in other places, especially in the rationale given for preventing most longer sentences becoming spent. The white paper justifies shortened disclosure periods by arguing that employment reduces reoffending. We completely agree, and the evidence backs this up. But a few paragraphs later, the paper says lifelong disclosure, and lifelong discrimination, is justified because reoffending would be particularly harmful. Surely if reoffending would be so bad it is even more important to do everything we can to reduce it, including improved access to employment? 

People with more serious convictions face more serious discrimination, and for longer. The MoJ knows this is a big factor in reoffending, but they are not doing anything to change it. Most alarmingly, by continuing with lifelong disclosure the MoJ is signalling that many thousands of people cannot be rehabilitated and always present a risk to the public, even after 40 or 50 years. 

In the end, while this paper says all the right things about employment and reoffending, the MoJ are content to leave the old system intact and not consider a genuinely new approach. They argue that discrimination is severe and needs to be addressed; but their proposals are only for less discrimination for some, and they don’t consider the possibility of zero discrimination. 

Of course, Unlock will be pushing for any change that helps people with convictions, even small ones. Better is still better. But our real goal over the coming year or two as the paper moves forward is to push the Government to be bolder and less restricted in their thinking, and to deliver a criminal records system that works for everyone.  

Written by Sam Doohan, Unlock Policy Officer

Read more:

• The Government’s White Paper
• Recent Scottish updates to the Rehabilitation of Offenders Act 
• Our campaign for reform   
• Join the #FairChecks movement for disclosure reform