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For people with criminal records
For people with criminal records

Category: News on policy issues

Parliament Committee agrees to further restrictions on people with convictions becoming trustees and senior managers of charities

 

On the 6th January, the House of Commons Public Bill Committee discussed the Charities (Protection and Social Investment) Bill.

This was when the Committee got to look at Clause 10 of the Bill, which relates to the issues we’ve raised that will have an impact on people with convictions.

It was positive to see a number of the concerns we raised with the Committee brought up in the session. For example, Anna Turley MP said:

“Some issues remain to be ironed out, not least further understanding and mitigation of its impact on charities working in the criminal justice sector which help to support and promote the rehabilitation of offenders and which employ ex-offenders or—as with the excellent charity Unlock, for example—aim to have at least 50% of trustees with some experience of living with a criminal record. While these provisions pertain to unspent convictions, we have some questions that we hope the Minister will answer.

 

How many people employed in the charitable sector does the Minister expect to be affected by the extension of the disqualification framework to senior management positions? What assessment has been made of the impact of the new disqualification framework on former offenders employed in the charitable sector, including on their career prospects and long-term rehabilitation and resettlement? What assessment has been made of the impact of the legislation on charities that work with former offenders who are employed by community rehabilitation companies as part of the Government’s transforming rehabilitation reforms?”

We welcome the clear commitment from the Government to work with us. Rob Wilson, Minister of State for Civil Society, said:

“The commission has set up a working group to review its current staff guidance and the process of issuing waivers, as well as how information about waivers is communicated to those disqualified, so as to make it as clear and simple as possible. That has already involved rehabilitation charities, such as Unlock, and will continue to do so. The working group will also review the commission’s published information on this subject to ensure that it is consistent with its conclusions.”

We remain in opposition to the Bill and its proposals. However, we also recognise the need to take a pragmatic stance towards the changes on the horizon.

We have written to the Minister for Civil Society to seek further clarity about the numbers of people likely to be affected, and to seek assurances about the waiver process. We will also be working with the Charity Commission to improve this process.

Whatever happens, we plan to closely monitor the impact of the legislation.

We will continue to keep the trustee section of our website up to date with news and developments as they arise.

 

Useful links

Extension of disqualifications in charities bill are unnecessary

Charities working with offenders say tougher disqualification rules are a ‘direct threat’ to their mission, and could see 50,000 people automatically banned from being trustees. Unlock comments in this Third Sector article, click here to read it in full.

Unlock supports legal challenge to disproportionate criminal records disclosure scheme

The High Court will tomorrow hear a legal challenge, with the support of Unlock, to the Government’s criminal records disclosure scheme.

There are two cases being heard on Tuesday 8th December, both focusing on how the system forces people with more than one conviction to disclose them forever when applying for areas of work that involve standard or enhanced DBS checks – regardless of specific circumstances.

One case is being brought by Liberty. Their client – referred to in this case as P – committed two extremely minor offences in 1999 while suffering from a then undiagnosed mental illness. P has committed no crimes since and – more than 16 years later – is seeking voluntary positions in schools with a view to achieving her aim of working as a teaching assistant. However, under current rules, she is forced to disclose her two convictions when applying and – in explaining the circumstances of the offences – to reveal details of her medical history. Liberty will argue that this represents a breach of P’s rights under Article 8 of the Human Rights Act – the right to a private and family life. Liberty will also argue that the system is too arbitrary and disproportionate, and requires urgent reform to allow for greater consideration of individual circumstances.

Unlock is supporting this case by providing a witness statement for the High Court.

The second case is being brought by Stephensons. Their client – referred to in this case as A – was convicted of two minor crimes in 1981 and 1982 when aged 17 and 18. He has since worked as an accountant, a company finance director and now project manager – work that often requires due diligence and criminal record checks – and is concerned that he may be forced to disclose his convictions.

The current system

The Police Act 1997 created the Disclosure and Barring Service (DBS – formerly the Criminal Records Bureau), which provides details of a job applicant’s previous convictions. For certain types of work, particularly work with children or vulnerable adults, standard or enhanced certificates issued by the DBS used to list all the job applicant’s previous convictions.

However, in 2013, the Government amended this scheme following a Court of Appeal ruling to introduce a “filtering” process. Single convictions for non-violent, non-sexual offences that did not lead to a suspended or custodial sentence will be “filtered” (i.e. not disclosed) after 11 years (five-and-a-half years if the person was under 18 at the time of the offence).

The new filtering process does not apply if a person has more than one conviction – regardless of the minor nature of the offences or the person’s circumstances at the time.

The Rehabilitation of Offenders Act 1974, which governs the circumstances in which a person has to admit to a previous conviction if asked, operates in a similar way. A person applying to work with children or vulnerable adults does not have to disclose a conviction which is “filtered”.

James Welch, Legal Director for Liberty, said:

“Too many people find their work prospects blighted because of minor offences committed in their distant pasts.

 

“The Government accepted the logic of letting people move on when it introduced “filtering” two years ago. But, in restricting this to those with only one conviction, it has created a scheme which is deeply unfair to people like my client, with two very minor – and, in this case, connected – convictions.

 

“We need a system that’s flexible enough to consider individual circumstances – and we hope the High Court will agree that the DBS scheme still needs reform.”

Christopher Stacey, Co-Director of Unlock, a charity for people with criminal records, said:

“Since the filtering scheme was introduced in 2013, we know it’s helped many people with old and minor criminal records to be free of the stigma and discrimination that so many face when they have something on their criminal record. However, it simply doesn’t go far enough. We’ve had thousands of people contact us who continue to have old and minor records disclosed to employers when they have no relevance to the role they’re applying for. That’s why we’re supporting this legal challenge.  The current system is blunt, too restrictive and disproportionate.”

More information

Extension of disqualifications in charities bill ‘unnecessary’

Today, we have published a briefing that we’ve produced in advance of a debate in the House of Commons this coming Thursday, 3rd December, when the Charities (Protection and Social Investment) Bill is due its Second Reading.

The concerns raised in this briefing focus on issues relating to criminal records, and represent the views of Unlock. Unlock is an independent award-winning charity that supports ex-offenders (a group which we refer to as “people with criminal records”) and seeks to remove the barriers that result from criminal records. Unlock is a peer-led charity – this means that we recruit staff, volunteers and trustees that have criminal records. At a board level, we aim to have at least 50% of our trustees who have personal experience of living with a criminal record.

These concerns have the support of a number of charities; the Prison Reform Trust, Clinks, User Voice, The Howard League for Penal Reform, Transform Justice, Centre for Crime and Justice Studies, and the Criminal Justice Alliance.

The concerns that we’re raising in this briefing were featured in an article by Third Sector last Wednesday.

Download the briefing here

There are proposals within the Bill that represent a direct threat to Unlock and to other charities that work to rehabilitate people with criminal records, many of whom employ former offenders either as trustees or in senior management positions. At the heart of the voluntary sector is the principle of working with our service users, rather than doing things to them. This is no less important with people in the criminal justice system than with any other group. Any unnecessary barriers to the recruitment of people with convictions as trustees and in senior positions is a threat to the core mission of our sector.

As the Secretary of State for Justice himself has stated, we should not judge individuals by the worst moments in their lives. Instead of seeking to narrow opportunities for ex-offenders to reintegrate and contribute to society, we should be supporting efforts to contribute to civil society through paid employment in the voluntary sector or as volunteers.

The provisions of the Bill, which extends the disqualification framework to a broader range of offences and roles within charities, will undermine the ability of people with criminal records to participate actively in society through legitimate voluntary and paid work. The automatic barring of people on the sex offenders register from becoming charity trustees is a crude and ineffective means of safeguarding children and vulnerable adults.

Although the Government acknowledges the potential for waivers to be issued in cases where an individual seeks to be a trustee of an “ex-offender” charity, our own direct experience and the support we’ve provided to other organisations shows the waiver process is woefully inadequate and not workable in a way that allows charities like Unlock to fulfil their charitable purposes. This briefing seeks to address these concerns as well as others that we have about the Bill.

In a comment I provided to Third Sector for their article last week, I said:

“The Bill represents a direct threat to Unlock and a number of other charities that work to rehabilitate people with criminal records, many of whom employ former offenders either as trustees or in senior management positions. The provisions of the Bill, which extend the disqualification framework to a broader range of offences and roles within charities, will undermine the ability of people with criminal records to participate actively in society through legitimate voluntary and paid work for charities.

Although the Government acknowledges the potential for waivers to be issued in cases where an individual seeks to be a trustee of an “ex-offender” charity, our own direct experience (and the support we’ve provided to other organisations) shows the waiver process is woefully inadequate and not workable in a way that allows charities like Unlock to fulfil their charitable purposes.

The automatic barring of people on the sex offenders register from becoming charity trustees and senior managers, a provision which was opposed by the former coalition government, is a crude and ineffective means of safeguarding children and vulnerable adults. It also defies rehabilitation legislation, as it would have the impact of taking into account convictions long after they become ‘spent’ under the Rehabilitation of Offenders Act.

We’ve put forward alternative proposals that would help achieve the important aim of safeguarding charities from abuse without the unintended consequences of the current provisions. Automatically barring people with criminal records from volunteering or working for charities is no way to help them lead a law-abiding life.”

Useful links

Unlock responds to review of education in prison

In September, Michael Gove announced a review of education in adult prisons.

Unlock as a charity focuses on the problems that people face as a result of their criminal record. We do not provide education in prisons or in the community to individuals. However, we run a Helpline that deals with over 5,000 people with convictions each year. We also run training for practitioners, including prison education providers, on criminal record disclosure.

As a result of this work, we believe we have some valuable comments to make to this consultation process, particularly in ensuring that people leaving prison are properly prepared for life with a criminal record through improved education in prison.

You can download our response to the review here.

Unlock responds to Scottish filtering consultation

In September, the Scottish Government announced a consultation on a Remedial Order that they’d brought into force on the 10th September.

This, in practice, brought into force a filtering process that applied to standard and enhanced checks processed by Disclosure Scotland, similar to the filtering process operated by the Disclosure & Barring Service.

Although our work as a charity doesn’t directly extend into Scotland, we felt it was important to respond to this consultation to make a number of comments based on the approach that the UK Government took in England & Wales when it introduced a similar process in 2013, as well as raising a couple of practical considerations which we believe are important when reflecting on the current approach of the UK Government.

You can download our response to the consultation here.

 

Useful links

Unlock speak at ICO policy conference: “The Google effect – Criminal records and the ‘right to be forgotten’”

I was pleased to be invited to speak today at the ICO’s Data Protection Policy Conference.

With the title “Privacy versus the right to know: balancing privacy and access to personal information in the internet era”, I was asked to come and take part in a panel discussion, “Technology, information and its consequences”, speaking alongside Timothy Pitt-Payne QC and Daniel Tench.

The ICO are planning to publish a report on the conference in the coming months, but for the meantime, below are the opening comments that I’d prepared for the discussion. You can get a good sense of the rest of the conference by taking a look at the twitter hashtag #ICOpolicyconf15

Opening comments

There are over 10.5 million people in the UK with a criminal record. The vast majority have put their former mistakes behind them and are living crime-free and law-abiding lives. However, their criminal record can restrict their enjoyment of full and inclusive citizenship – in some cases, many years after the offences for which they have already served their sentences in full. Examples include discrimination in the field of employment, difficulties obtaining insurance and other financial services, restrictions on travel and access to educational opportunities and exclusion from participation in aspects of civil society.

Unlock is an independent, award-winning charity for people with convictions which exists for two simple reasons. Firstly, we assist people to move on positively with their lives by empowering them with information, advice and support to overcome the stigma of their previous convictions. Secondly, we seek to promote a fairer and more inclusive society by challenging discriminatory practices and promoting socially just alternatives.

Today, my focus is on how people (and by that, I include employers, insurers and other organisations, as well as the public) access or use information about criminal records that they shouldn’t be using.

Discrimination and ‘legal rehabilitation’

People with convictions are the least likely disadvantaged group to be employed. They make up between a quarter and a third of unemployed people. 75% of employers discriminate against applicants on the basis of a criminal record.

Since the launch of the Police National Computer, criminal records have evolved from being used merely for crime detection purposes, to becoming a means of categorizing people as potentially ‘unsuitable’, ‘risky’ or even ‘undeserving’.

The Rehabilitation of Offenders Act is designed to enable people with convictions to move on their lives once they have become ‘rehabilitated’ in the eyes of the law.

In theory, once you’ve stayed out of crime for a certain time, your record can in most cases become spent. This means that for most jobs it no longer needs to be disclosed to most employers. Although that doesn’t apply to many sensitive roles (particularly working with children or vulnerable adults, where most people with convictions will have to disclose all their convictions for the rest of their life), on the whole, for many jobs, spent convictions do not need to be disclosed. This allows people who have stayed out of crime to start with a clean slate. It means you can apply for jobs without having to disclose it.

Google effect

However, that law first came into force over 40 years ago. Times have changed. Nowadays, it’s quite common for employers to use the internet as a key part of their recruitment process. To some, it’s human nature to ‘google’ somebody.

Modern forms of online news reporting are compromising the extent to which even spent convictions can remain private.

The so-called ‘google effect’ can lead to information about criminal offences remaining publicly accessible for many years, undermining the purpose of the Rehabilitation of Offenders Act.

So what happens in your criminal record details are online? In theory, once it’s spent, if an employer finds out about it, they are legally obliged to ignore it. Even further, an employer is legally required to not take into account spent convictions unless it’s for a job that is exempt, However, in practice this is very difficult to enforce – as an applicant, you have very few rights, and we often find employers using spent convictions to withdraw job offers or sacking employees many years later.

The reporting of convictions online, and the lack of regulation in this area, means that many people find that they face judgement and discrimination long after their convictions legally become ‘spent’. The fact that around a third of the cases ICO received on this issue involving criminal convictions in some way shows how important this issue is.

Right to be forgotten

So the Google Spain judgement, and the concept of ‘a right to be forgotten’ is one which, in theory, is very promising. However, like the ICO, we’ve been surprised at the low number of enquiries to our Helpline,

But what’s clear is that this is an area that is constantly evolving. Having seen a number of responses from Google to requests made by individuals, there seems to be some improvement in how they’re dealing with requests. However, we’re still seeing standard template responses from Google. They’re failing to properly consider whether convictions are spent. They also don’t seem to be providing direct links to the ‘data protection authority’ (i.e. the ICO) – so to many people, that’s the end of it. And the response of some newspapers to reprint the cases of those they’ve been notified by Google having been delisted has certainly created a fear amongst applicants of, instead of removing details, unintentionally drawing more attention to their details online. The absence of ‘success stories’ understandably makes many people question whether there’s any point.

So perhaps it’s useful to speak about a success story. This will perhaps emphasise the issue.

Sonia

“8 years ago I was convicted of Arson. I set fire to my own home as part of being in an abusive relationship.

As a result of having a very understanding boss, I had kept my job and just wanted to move on and concentrate on my career so I completed a degree. A fantastic job opportunity came up and I applied. I was totally honest and disclosed my conviction as I knew it was going to show up on my DBS which they requested. I was delighted to get the job and knew my life was now going in the right direction again and I was never going to look back.

In the meantime I had met a ‘nice’ man and we married. The relationship seemed to be going well, but I eventually found out he was leading a double life.  I told him to leave and I moved back in with my parents. I filed for divorce as I felt I couldn’t ever trust this man again and that is when my life came crashing down again.

He suddenly decided that he wanted revenge and told my employer that they were employing a very dangerous person who was a risk to others because of my conviction.. He had also printed off the newspaper article he had found on Google about me and said he was going to post it around the city so everyone could read it and destroy me. His attacks on me were malicious and it was terrifying not knowing what this man could do and the lengths that he would go to. I was advised by my solicitor and my employer to file for a Harassment Order and inform the Police of his allegations and intentions. My employer could see what this man was trying to do to me and supported me wholeheartedly.  Despite having a spent conviction, that terrible newspaper article was being used against me again. It just wasn’t fair and I felt that enough was enough. I had to fight to get the past ‘put to bed’.”

After making her request through Google’s online process, they agreed to remove the links. She used this success to contact the newspaper directly and they agreed to remove the source content.

This shows how this system has the potential for it to benefit individual. But there are issues.

Issues

  • How can the Rehabilitation of Offenders Act be enforced in a digital age?
  • The ‘right to be forgotten’ is not very well known
  • Not many people are taking their requests to the ICO after refusals from Google
  • The process
    • The need for it to apply across all domains – ICO’s enforcement
    • The need to apply to multiple search engines
    • The need to also remove the source content

Conclusion

Whilst the ‘right to be forgotten’ is slowly being established as a legal principle, Unlock remains concerned that employers and others are routinely able to access information about people to which they are not legally entitled.

We are keen to see the ICO strengthen their response to Google and others that continue to link to, or host, personal details of old and minor criminal records online, as well as taking action against those employers and others that use spent conviction details they’ve found out about online (or through other methods, such as enforced subject access).

 

Written by Christopher Stacey, Co-Director of Unlock

 

Useful links

  • You can follow the twitter discussion about the conference at #ICOpolicyconf15
  • For details of our policy work on the ‘google effect’ and criminal records, click here
  • For our practical information for people with convictions on how to remove links to search results, click here

New guidance for insurers on (not) using enforced subject access to get details of criminal records

We’re pleased to see that the Association of British Insurers has produced guidance for insurers which clarifies the position for insurers after section 56 of the Data Protection Act 1998 came into force earlier this year.

For far too long now, some insurance companies have relied on dubious practices when dealing with claims, relying on individuals to get a copy of their full police record, which runs the risk that they take into account spent convictions which the individual didn’t need to disclose. Since earlier this year, this practice was made illegal.

This guidance should help insurers to make sure that they operate fairer practices when dealing with individuals that have criminal records.

 

Useful links

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