Author: Unlock Admin

New articles on theRecord

We’ve just published a roundup of recent articles that have been posted on theRec0rd, our online magazine for and by people with convictions.

Read the summary of new posts here.

Do you have a caution or conviction that can never be filtered?

The filtering rules set up following Supreme Court’s judgment in R (On the application of T and another) [2014] UKSC 35 mean some cautions and convictions can be filtered from standard and enhanced DBS checks after a period of time. Convictions for specified offences, custodial or suspended sentences and multiple convictions could not be filtered.

In R (On the application of P, G and W) [2019] UKSC 3, it was argued that the rules didn’t go far enough. The court ruled that multiple convictions ought to be filterable, and we’re gathering evidence to show how important it is that these changes are made quickly.

We’d like to hear from you if:

you’ve only been to court once, but you were charged for two ‘counts’.
you have two separate convictions.

We still don’t think these changes go far enough to help people move on positively with their lives. The court did not rule that the list of offences that can never be filtered should be changed. None of the cases addressed the question of whether custodial or suspended sentences should be filtered. We are gathering evidence to show why this should change. We want to hear from you if you:

served a short prison sentence, or suspended sentence, for an offence that could be filtered
have a caution or conviction for an offence that currently cannot be filtered – such as
- Assault occasioning ABH (s.47 Offences Against the Person Act 1861)
- Robbery (s.8 Theft Act 1981)
- Loitering for purposes of prostitution (s.27 Sexual Offences Act 1992)

What we need from you

If you are affected by the filtering rules, contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: DBS filtering’. Please include:

Your name
Your date of birth
Contact details (email and telephone) and how you’d be happy for us to contact you
Which example above you think your case fits into
Details of your cautions/convictions including the dates and a DBS certificate if you have one
The difficulties you’ve faced, recently or in the past, as a result of your criminal record not being filtered.
Whether you would be willing to contribute to any media coverage on this issue in future (this is for our reference, we won’t share your details without consent)

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent.

Find out more about how we handle your data.

Find out more about our work on DBS filtering

Unlock on BBC Radio West Midlands talking about second chances and employers

Last night we contributed to a discussion on BBC Radio West Midlands, which looked at the case of Natalie Atkinson, and looked at the role of employers in giving people with convictions a second chance.

You can listen to the programme below:

Challenging ineligible standard and enhanced checks

We continue to receive many enquiries from clients being asked to do standard or enhanced Disclosure and Barring Service (DBS) checks for jobs which they don’t think are eligible for one.

We are often asked for a ‘list of job titles’ which are eligible – no such list exists. What makes a role eligible depends not only on the work that you will be doing but, the place you are working (i.e. a hospital). In essence therefore, this can be quite a grey area.

Added to this, when recruiting, employers don’t always state very clearly whether they intend to carry out a criminal record check or what level will be applied for. Employer’s often don’t make this clear because they assume that it doesn’t concern the majority of their applicants. However, if you have a criminal record, it can be the most important part of the recruitment process.

Why is this important?

The level of check an employer can carry out is extremely important, particularly if you have spent convictions – these wouldn’t be disclosed on a basic check. Likewise, if the police hold information about you locally, this wouldn’t be revealed on a basic or standard disclosure but might be disclosed on an enhanced disclosure. Details of what can be found on different levels of criminal records check can be found here.

Remember, once a criminal record check is carried out and an employer has the information, then it is difficult to stop them applying the information they’ve received to any recruitment decision that they’re making.

The application for a DBS check for an ineligible position is unlawful under the terms of the Police Act 1997. If an individual knowingly applies for a DBS check for a post which is not included in the Exceptions Order 1975 then they would be committing an offence by knowingly making a false statement for the purpose of obtaining or enabling another person to obtain a certificate.

How do I know if the role is eligible?

As we’ve already mentioned, there isn’t a definitive list. The types of positions which may be eligible for standard or enhanced checks are contained in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. These can be divided into five broad categories: –

Professions
Law & Order
Certain Regulated Occupations
Health and Social Care
National Security

But not every job is eligible. We’ve heard from clients working in clerical roles in offices to mechanics in garages who have all been asked to do enhanced checks. A particular favourite was a guy who, as part of his role, checked whether customer toilets met the company cleaning standards – another enhanced check requested!!

How do I raise concerns about an ineligible check without alerting my employers to the fact that something is likely to be disclosed on a DBS check?

We would always encourage anybody who believes that a check is ineligible to raise their concerns with the organisation if they feel able to. You will need to be careful not to raise suspicions that you have a criminal record and who you need to speak to will vary. It will normally be somebody with recruitment or personnel responsibilities. We have an establishing eligibility section on the Hub that might help.

If the organisation insists on carrying out the check, you are not legally obliged to give your consent. However, if you refuse an employer will normally reject a job application. You may need to consider agreeing to the check, then raising a formal eligibility query with the DBS.

Challenging a potentially ineligible check

The time to use the DBS Eligibility Query process is when:

you have spent convictions, and
you’re applying for a job that says they will do a standard or enhanced check, and
you’ve been offered the position, and
you’ve been asked to consent to a DBS check

Once an application for a standard or enhanced check has been submitted to the DBS, you can use the Eligibility Query process to stop the check whilst the DBS investigate whether the check is lawful. Details of the process can be found in the ineligible checks section of the Hub.

In a case where we helped an individual go through the eligibility process, they found the process relatively easy. The DBS requested additional information from both sides (applicant and organisation) but at all times managed to protect the identity of the applicant. The DBS found in the applicants favour that an enhanced check was ineligible.

The results so far

As the case above shows, the Eligibility Query process is working. It’s fair to say that there are still problems with the overall system – for start, it shouldn’t be left to individuals to have to query individual applications.

However, in a recent Freedom of Information request, we asked the DBS how many times the DBS has written to employers under their Ineligible Applications Process. Between March 2012 and February 2013, they’d written to 3,311. Of those, the results were that 1,385 applications were not completed, which works out at 42% of the ones that the DBS looked into.

So the message we want to give is, if you think a job is carrying out an ineligible check, then challenge it.

As always, we’re keen to hear of examples where you’ve challenged an employer, either formally or informally. Send your examples to policy@unlock.org.uk.

‘Impact report’ published by Unlock on access to banking for people in prison

Unlock has now come to the end of a landmark 9-year project in developing access to basic bank accounts for people in prison before release. We are pleased to publish a report on this work. It reflects on the progress that we have made, and sets out a number of recommendations to the National Offender Management Service (NOMS), prisons and the banking industry, so that the progress is sustained and developed even further.

Back in 2005, we first identified the issue of people coming out of prison who had managed to secure employment, but were losing these opportunities because they didn’t have a bank account to get paid their wages into. The personal testimony below demonstrates the importance of this. It seemed like a simple problem to resolve, to open an account before release, but there were a number of complex underlying issues that stood in the way, not least the lack of engagement from many banks, and the lack of awareness of the issue across prisons.

During the 9 years that followed, we worked at various levels; piloting a process in a small number of prisons; rolling this out into further prisons; working with the banking industry to develop a fair and sustainable process; working with specific banks to develop their operating processes; and providing training/support to prisons. The work took much longer than we had expected. What began as a small charitably-funded pilot project ultimately ended up in a national campaign involving significant political and media attention.

And we are immensely proud of the progress we’ve made. In 2013-14 alone, 5,936 basic bank accounts were opened for people in prison, ready for them to use once they were released. In total, we have helped to set up 74 prison/banking programmes, and overall 114 prisons have links with a high-street bank. Ultimately, all prisons that want and need a basic bank account opening programme now have one in place, which was the principal aim of the project.

This work shows the value of being responsive to the issues that people are facing. Unlock’s independence, and “ear to the ground, voice at the top” approach has enabled us to achieve systemic change to a long-standing problem.

Unlock are now handing over day-to-day responsibility to NOMS for sustaining and developing the project. We look forward to seeing this work continue, so that all people near to release are able to apply for a basic bank account which is set up and ready for them to use when they are released so that they are better able to lead law-abiding lives in the future.

For more information about this work, visit the bank accounts policy section.

The importance of this work – A personal testimony

“I was in an open prison a couple of years ago. Having gone into prison with the loss of everything, I had no bank account, no ID, no anything. I was approached by staff one day and told about this wonderful scheme which would allow me to get started again. Very simply, the bank was Barclays and they had the most amazing very straightforward system for getting a bank account open. I would highly praise them, and Unlock for organising it, and for the way that is done. The account is opened, you have the bank card and details a couple of weeks later, and they are kept in your private property until you are released from prison. So you are actually ready to go the day you get out.

But to me the biggest things are the personal things. Self-esteem is a big thing and the bank account helped a great deal with that. Can you imagine what it is like not to have a bank account? Just for a moment. Not so much the practicalities but what it says about you. Why haven’t you got one? People give you funny looks, or you suspect they do. Getting a bank account in prison made me feel a great deal better about myself; that I belonged, and that reintegration was possible. Prison, for all the wrongs you have done to get you there, is a very lonely place, and that’s one of the problems when it comes to reintegrating when you get out. Anything that can be done to improve things there will help people.

Confidentiality is another thing: the way the accounts are set up. When you go to your branch when you get out, the staff don’t know you are an ex-offender. There is nothing on the system to say: this man is a former criminal; this account was set up in prison. That’s a fantastic feeling: to walk in to a branch as a normal citizen. One of the things that really hit me when I came out of prison, when I got onto the Jubilee line to head home, I was absolutely paranoid, that I had ‘prisoner’ stamped across my forehead. I kept looking round the carriage thinking ’they know’. And I’m not normally a paranoid person. A lot of people go through that. But when you walk into a bank branch and know they will treat you as a normal customer, and that rubber stamp on your forehead is no longer there, that is a fantastic feeling.

There are too many things, emotionally, that drag people back into prison. I know it sounds strange but I think bank accounts and having them set up for you, can help reduce re-offending. It’s one thing out of the way. You’ve got your benefits when you come out, you get paid when you find employment, it’s just one less box you have to tick. I think it’s a fantastic scheme and long may it continue, and be rolled out across the estate.”

Person with convictions, released from prison

Employers’ access to ‘subject access’ records will become a criminal offence

Update – February 2015 – This will now be coming into force on the 10th March 2015. See here for more information.

Update – December 2014 – The Ministry of Justice recently announced that this change to the Data Protection Act has been delayed and is expected to commence early 2015. We will publish a further update once we have an implementation date.

We’ve learnt today that the Ministry of Justice are planning to bring section 56 of the Data Protection Act (DPA) 1998 into force on the 1^st December 2014.

Section 56 prevents employers from requiring people to use their subject access rights under the DPA to provide certain records, such as police records, as a condition of employment. It also prevents contracts from requiring certain records as a condition for providing or receiving a service, such as housing or insurance. Requiring people to provide these records will become a criminal offence, punishable by a fine. In England and Wales the maximum financial penalty on summary conviction in the magistrates’ court is £5,000 (soon to be unlimited). On indictment in the Crown Court the fine can be unlimited.

We’ve long argued that section 56 needs to be brought into force, but this wasn’t ever possible until reforms to the Rehabilitation of Offenders Act 1974 were brought in on the 10^th March 2014.

For people with convictions, this is an important development. Although it doesn’t prevent employers and others from getting access to criminal records through legitimate means (such as a basic disclosure through Disclosure Scotland or a standard/enhanced check through the Disclosure & Barring Service, depending on the job) what section 56 does do is prevent the use of significant amounts of sensitive personal data that can be disclosed as part of a subject access request.

In the past, we’ve come across examples where employers, insurers, education providers and housing providers have required people provide copies of their police record by applying to the police and paying £10 for a subject access request. This type of request discloses all information held on the Police National Computer, including convictions and cautions that are spent, as well as allegations or other ‘local police information’.

The introduction of section 56 on the 1^st December will enable a clearer message to be given to any organisation that is found to be undertaking this type of practice. The legislation only allows requirements of this type where the record is required by law or is justified in the public interest. We understand that the Information Commissioners Office will be publishing guidance nearer to the date of implementation, to better explain how this will work in practice. In the meantime, there is a helpful blog on the ICO website.

This measure follows on from reforms to the Rehabilitation of Offenders Act 1974 announced in a Written Ministerial Statement on the 13^th February 2014.

Employers’ access to ‘subject access’ records will become a criminal offence from December 2014

We’ve learnt today that the Ministry of Justice are planning to bring section 56 of the Data Protection Act (DPA) 1998 into force on the 1^st December 2014.

There’s more information about this in an update on our Information Hub.

Former MP Denis MacShane writes about the role of financial services

Denis MacShane, former MP and former prisoner, argues in a feature for this months’ Financial World magazine, that the financial services industry needs to do more to help discharged prisoners reintegrate into society.

Thanks to Financial World, you can download the specific article here.

The two main issues that Denis raises are that of bank accounts and insurance. We were pleased to be able to speak to Denis when he was writing this article, and we’re glad that he’s raised some of the core issues that remain on these fronts.

Supreme Court ruling on criminal record checks / Filtering process

Today the Supreme Court ruled on a case that’s been going through the courts for some time. An earlier Court of Appeal case is what led to the ‘filtering process’ being introduced by the Disclosure & Barring Service.

The reason for this post is to just make it clear that, as a result of today’s judgement, we don’t expect any changes to be made to the filtering process. It was suspected by some that the reason the Government were appealing was so that they could remove the filtering process all together. The fact that they lost their appeal means that the filtering process stays.

The read more about today’s judgement, read the update on our main site.

For more practical information on the filtering process as it stands, click here.

Supreme Court rules that minor cautions and convictions shouldn’t be disclosed on criminal record checks, and the filtering process remains

The Supreme Court has today ruled on a landmark case, referred to as T. The full judgement can be downloaded here: [2014] UKSC 35.The two individuals involved in the case had originally appealed against the decision to disclose details of their criminal records in job applications. The individuals had been issued warnings and cautions several years ago, and while one of them had been a child. They argued that the disclosure of these warnings and cautions on their enhanced criminal record certificates, which preventing them from getting certain employment, violated their ECHR, Article 8 rights for respect for private life.The Court of Appeal had previously held that the criminal record check process as part of the Police Act 1997 was incompatible with Article 8. This led to theGovernment introducing a filtering process in May 2013. Despite this, the Government appealed to the Supreme Court.

The Supreme Court today unanimously dismissed the appeals against the declaration of incompatibility in relation to the 1997 Act. Although the court did allow the appeal against the declaration by the Court of Appeal that the 1975 Exceptions Order was ultra vires, this is unlikely to have any practical impact, as it’s the first aspect of the appeal, which was dismissed, which has more practical relevance.

The Court said the disclosures in the two cases “were not necessary in a democratic society” and “were not based on any rational assessment of risk”.

Christopher Stacey, Co-Director at Unlock, today said “We welcome today’s decision. The way that criminal record checks have worked in the past were disproportionate and not based on any rational assessment of risk. We were pleased that the Government tried to resolve this by introducing a filtering system in May 2013, and we’re glad that this system will remain in force following this judgement.”

“However, the filtering system doesn’t go far enough. We know from our Helpline that many people with minor cautions and convictions continue to be excluded from the filtering system that the Government set up, simply because they were charged with more than one offence. As a result, in the first 3 months that the filtering system operated, only 15% of people with convictions had a conviction filtered from their record. This means that 85% will continue to have convictions disclosed on standard and enhanced checks for the rest of their lives.”

“We believe that the filtering process must go further. We will be looking at this judgement carefully to look at what can be done to widen the scope of the filtering process to better enable people with convictions to move on positively with their lives once they’ve become law-abiding citizens.”

For a useful legal summary of this case, click here to visit the UKSC Blog.

For more information on the current filtering process that applies to standard and enhanced criminal record checks, click here.

– END –

Notes to editors

1. Press/media

2. Unlock is an independent award-winning charity, providing trusted information, advice and supportfor people with criminal convictions. Our staff and volunteers combine professional training with personal experience to help others overcome the long-term problems that having a conviction can bring. Our knowledge and insight helps us to work with government, employers and others, to change policies and practices to create a fairer and more inclusive society so that people with convictions can move on in their lives.
3. Our website is unlock.devchd.com.