Author: Harry CHD

An insight into Northern Ireland’s consultation on spending periods

The Northern Irish government has just completed their initial consultation on changing spending periods for criminal offences, spurred by a judicial review brought by the Northern Ireland Human Rights Commission (NIHRC). While that is outside of Unlock’s normal catchment area, we have been following the case closely and working with our colleagues at NIACRO to try and make the most of this opportunity for change.

While any real changes in Northern Ireland are still some way off, this is a good opportunity to talk about the nature of government consultations, and what we can learn from Northern Ireland.

The biggest take away is that strategic litigation really is an effective tool in creating change, and vindicates Unlock’s goal to continue using it. The NIHRC case is extremely meaningful in its own right, but even before the arguments have been heard Stormont have rushed to address some of the concerns. Whatever decision is reached, this one case will result in meaningful changes that impact thousands of people. This is extremely encouraging, and Unlock was happy to support the NIHRC case.

Next, the policy options that the Northern Irish government consulted on were an interestingly mixed bag. Northern Ireland hasn’t had a significant change for spending periods since 1978, and Stormont is not required to follow along with England and Wales, so it’s understandable they have come up with their own options – but they were still a bit odd.

They did offer two possible reforms to address concerns about longer sentences never becoming spent. However, each one was only half of the proposed version in England and Wales. Option one was to simply raise the threshold for a sentence that can’t become spent from two and a half to four years. This update would match the present England and Wales system, but not include any changes from the sentencing bill.

The other proposal was to allow some longer sentences to become spent, depending on the conviction – but offences classified as violent, sexual or terrorism related would still have to be disclosed for life if the sentence was longer than two and a half years.

The proposed version in England and Wales is to use a list of offences and a longer threshold for lifelong spending, and it was not initially clear why Stormont would break these two aspects apart. If they were going to follow the England and Wales system, it would make more sense to copy it fully. However, Unlock sat in on some of the Department of Justice’s feedback sessions, and it seems that the concern for the civil servants is drawing up reforms that can be actually be passed through parliament.

To some degree that is disappointing, because a really ambitious set of reforms seems unlikely. At the same time, we do need to stay grounded to this reality. Reforms are unlikely to go as far as we might like, and both MPs and the general public might well be less well informed than we might hope. However, positive reforms are still positive, and we should be aiming to make them happen. It might not be ideal, but changes that actually happen help more people than those which are too radical to be accepted.

Another interesting factor in Northern Ireland is that certain terms have a different meaning, highlighting that language can be much more politicised than we might think. In England and Wales, ‘terrorism’ is a little contentious but in Northern Ireland that is an extremely emotive term, with decades of history and injustice behind it. We don’t even have to leave the UK to see that the question of who exactly is a terrorist is not easily answered.

This is even more relevant because most conflict-related convictions are really quite old at this point, and so would immediately become spent if they were ever eligible. That means that charging decisions made in the 1960s would come back to haunt the justice system yet again, with questions about unequal application of the law to different communities.

This same effect is just as true with the other categories of offences that will be exempt from becoming spent. What is a violent crime? And what is a sexual offence? In Northern Ireland the Department of Justice at least intend to write a new list to address this, which is something. In England and Wales, the government are proposing to use a pre-existing list drawn from 20 year-old legislation. Again, you do not have to travel far to see how these dodgy definitions will cause problems, and may create systematic injustices.

The flurry of activity in Northern Ireland is a microcosm of what we are seeing in Westminster, and helps to show how even relatively small differences actually become huge concerns for this area of law. Simple rules that reduce the length of spending periods are clearly better than the periods we have at the moment – both in England and Wales and in Northern Ireland – but we can already see the difficulties in applying them on a large scale.

It seems increasingly clear that whatever changes are made to either system in the coming year, there is going to be a lot more work to do. We are seeing more and more that very broad categories just don’t work well and that we need a real paradigm shift. Creating an independent review mechanism seems the obvious first step, although few politicians ever want answers that will cost them money.

Unlock will continue to push for these changes until all people with criminal records the chance to live a normal life. It may be a hard fight, but we do believe it can be won.

Written by Sam Doohan, Policy Officer for Unlock.

Further reading

Unlock responds to the Ministry of Justice sentencing white paper

Unlock have today published our full response to the government’s recent white paper proposing amendments to the Rehabilitation of Offenders Act.

Read our full response here

After many years of campaigning for real reforms, the MoJ white paper is a frustrating read both for Unlock and for anyone who is concerned about criminal records.

The white paper does propose that disclosure periods should generally be reduced, and Unlock certainly support these measures. We also support the MoJ’s goal to improve employment prospects and reduce discrimination.

However, we believe that the proposed changes are fundamentally limited. They do not even apply to everyone who has served a custodial sentence, let alone the hundreds of thousands each year who are given a fine.

Most importantly, the proposals do not consider whether criminal records disclosure is actually a useful approach, or whether it offers any positive sides at all. The MoJ just assume that disclosure does something of value and only set out to make small adjustments without asking if a wholly different approach would deliver better results.

In 2012, the government of the day looked at criminal record disclosure and promised “radical” reforms in their “Breaking the cycle” white paper, but they did not make any structural changes and as a result the gains never materialized. Today’s MoJ are making the same mistakes; tweaking the numbers instead of looking at deeper issues.

Unlock does believe that the reductions to spending periods will be positive, but we also believe that this alone is not enough to make a real difference. As long as all people with criminal records are required to disclose their convictions once they have served their sentence, there will always be a substantial level of discrimination. Shortening the length of discrimination is positive, but all people who receive a criminal record will still suffer from it.

In our response, Unlock urge the MoJ to consider a more substantial package of reforms which will enable people with criminal records to live a normal life after they have served their sentence.

Unlock also encourage all of our supporters to contact their MP and the MoJ and put the case for more significant change. It is critical that this opportunity for change does not fall victim to a lack of vision and ambition. This may well be a once in a generation opportunity to make real change to the ROA, and it is critical that we push for as much change as possible.

Unlock want to hear from anyone that the MoJ have excluded from their changes – particularly those who’s convictions will still never become spent. Click here to tell us your story, and help us build the case for reform.

Read our other posts about the white paper

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

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

Author: Harry CHD

An insight into Northern Ireland’s consultation on spending periods

Unlock responds to the Ministry of Justice sentencing white paper

A smarter approach to criminal records?

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