Category: News on policy issues

Bloomsbury Institute breaks new ground with ban the box for staff and students

Bloomsbury Institute becomes the first higher education provider to Ban the Box for all.

Bloomsbury Institute in London is the first higher education provider in the UK to adopt Ban the Box principles for staff as well as students, a move that could encourage other universities to follow suit.

The Ban the Box campaign is about giving law-abiding people with convictions a fair chance to compete for jobs. Applicants are not required to tick the box and disclose criminal convictions when they apply, so employers don’t miss out on talented applicants who might be put off, or be sifted out at the first stage because of misconceptions about what a criminal record really means.

Rachel Tynan, Policy and practice lead at Unlock, a founder member of the Ban the Box campaign said:

“Ban the Box can give people with convictions the confidence to apply. They know they’ve got more of a chance because they’ll be judged on their skills, strengths and experience, before their past.”

Diversity and inclusion are buzzwords in higher education, but what’s often overlooked is that many of the students universities are looking to recruit are disproportionately criminalised. Care leavers, forced migrants, first in family and students from some ethnic backgrounds are identified as under-represented at university – yet these are groups that are over-represented in the criminal justice system.

Whilst there has been progress on student recruitment, with many universities no longer asking applicants about criminal records unless there is a legal need to do so – for example, for teaching or healthcare courses – the sector has not yet done the same for staff. Until now. Rachel Tynan continued:

“Think about it, a graduate with a previous conviction wants to go on to teach where they studied – yet they’re faced with having to tick a box about their conviction and the possibility of rejection. That’s the reality of most universities’ recruitment at the moment. Banning the box is the first step to an open, fair and inclusive recruitment policy, ensures that universities are recruiting from the widest pool of talent, regardless of background.”

The issue of reducing reoffending and supporting those with convictions is clearly on the public and political agenda, with Home Secretary Sajid Javid acknowledging the need to act on the Supreme Court’s ruling that parts of the disclosure regime are unlawful. The court described the disclosure of warnings and reprimands given to under 18s for minor offence as ‘an error in principle’. These punishments were devised so that young people who committed minor crimes were not disadvantaged by a criminal record for the rest of their life.

By extending their Ban the Box commitment to both staff and students, Bloomsbury Institute has taken a timely and important step in encouraging other institutions to open their doors to anyone with the determination to fulfil their potential.

At a ceremony celebrating Bloomsbury Institute’s new approach, Academic Principal and Managing Director John Fairhurst said:

“I’m delighted that Bloomsbury Institute has Banned the Box not only for students, but for employees as well. If our stated purpose – and the purpose of education – is to unlock potential, who are we to deny anyone the opportunity to rebuild their life because of a previous criminal conviction?”

Lord Neuberger, former President of the UK Supreme Court said:

I am proud to have been invited to Bloomsbury Institute’s Ban the Box signing ceremony. Educating, training, and, where appropriate, rehabilitating people of all ages is of inestimable value not only to the people concerned, but also to society. And that includes giving any former offender the opportunity to gain access to higher education.

Sarah Bailey, Deputy Director, Student Engagement, Wellbeing and Success at Bloomsbury Institute comments:

“We know there are numerous barriers that prevent thousands of talented, ambitious students from enjoying the opportunities of higher education. And we know that with the right support, people who may have been written off in the past can succeed and go onto achieve great things.”

We’ve published a guest blog from Senior Lecturer in Law, Joe Stevens, explaining more.

Notes

Unlock

Unlock is an independent, award-winning national charity that provides a voice and support for people with convictions who face stigma and obstacles because of their criminal record, often long after they have served their sentence. There are over 11 million people in the UK with a criminal record.

Unlock is a founder member of the Ban the Box campaign in the UK and we continue to promote it as part of our Fair Access to Employment project. We support employers to put the principles of the campaign into practice, using our knowledge and experience of working with both individuals who have convictions as well as employers who are actively looking to improve their recruitment policies and practices. In the last five years over 120 employers have signed up.

Unlock also campaigns for reform of the criminal records disclosure regime. In 2014 changes to the Rehabilitation of Offenders Act 1974 came into force which reduced the time it takes for most convictions to become ‘spent’ and so longer need to be disclosed when applying for most jobs and education courses. However, we think more fundamental reform is needed – for example, sentences of more than four years in prison can never become spent.

In 2018 Unlock intervened in a case at the Supreme Court which involved the disclosure rules that apply to standard and enhanced criminal record checks. The Government appealed against earlier rulings in the High Court and Court of Appeal that found the rules to be incompatible with the law. The Supreme Court ruling in January 2019 found against the government and identified two areas in particular that must be amended. Currently anyone with more than one conviction automatically has all their convictions revealed on standard or enhanced checks, no matter how minor or how much time has passed.

The Supreme Court found this rule did not achieve its intended purpose of indicating propensity as it applies irrespective of the nature, similarity, number or time intervals of offences.

The Court also found that disclosure of warnings and reprimands, given to under 18s for minor offences, was in conflict with their aim of rehabilitation, rather than punishment.

Media contact: Ruth Davies Ruth.davies@unlock.org.uk / 07458 393 194

Bloomsbury Institute

We are a higher education institute specialising in business, law and accountancy. Established in 2002 as the London School of Business and Management, we now have 2,000 students on our foundation and full-time degree courses. We changed our name to Bloomsbury Institute in 2018 to better reflect our connection with London’s academic and cultural heartland and to signal our plans to award our own degrees in the coming years.

As an Associate College of the University of Northampton (UoN), our degrees are internationally-recognised and awarded by UoN after being designed and taught by Bloomsbury Institute lecturers.

If a student is struggling to adapt to life as an independent learner, we have the commitment, expertise and networks to offer the support they need through our sector-leading Centre for Student Engagement, Wellbeing and Success. That means tailored support covering everything from academic skills through to employability, disability and help with visa applications.

As a pioneering and progressive organisation that celebrates difference, our commitment to diversity and inclusion applies equally to colleagues and students. An individual’s potential, not their past, is what secures a place here. That’s why we’re recognised for our strong commitment to widening participation which, for us, means fair access for everyone and helping students overcome any barriers that may be holding them back.

Media Contact: Lydia Hesketh lydia@bil.ac.uk / 07730 041890

Appointing a trustee with a criminal record: reflections of a successful applicant and charity

This blog is the lived experience of a charity working within the criminal justice system that was recently successful in getting a waiver from the Charity Commission for a Trustee applicant that was “disqualified” because of their criminal record.

The blog has been written by the charity itself (including input from the charity’s chief executive and the individual that needed to get a waiver to become a trustee), but the details have been anonymised where necessary to protect the identity of the individual and charity concerned.

Context

“There are rules which disqualify certain people from being a trustee or senior manager of a charity. Being disqualified means that a person can’t take on, or stay in, a charity trustee position or senior manager position – even on an interim basis, unless the Charity Commission has removed (or ‘waived’) the disqualification.” (gov.uk)

“Automatic disqualification” (as it’s officially known) was extended to cover significantly more crimes through the passage of the Charities (Protection and Social Investment) Bill 2015. The background to the Bill was the very public failings of The Cup Trust and The Kids Company. The failing at both of these charities was driven by the senior management and Trustees of the organisations, none of whom had criminal records. In fact, no-one with a conviction had anything to do with these failings, yet they were the ones impacted by the resulting legislation.

Most people we speak to want those with convictions to reintegrate into society and to find a way to legally contribute to their communities as much as they are personally able to. Ironically, most people we know with convictions want to do the same.

Whilst it is entirely understandable that failings need actions, these actions can prohibit someone with a conviction from rehabilitating. Barring an individual with a criminal record from becoming a Trustee will not eliminate the risk that someone without a conviction may still cause a failing.

To help future applicants produce successful Trustee waiver applications, we aim in this blog to provide as much information as possible on how we approached the process (see Part two – Helpful hints & tips) but we will start by sharing the perspective of our Trustee applicant and charity CEO.

Part one – Our perspective

As challenging as we found the required work (we spent two months trying to decipher the requirements, drafting and redrafting the forms), as time-consuming as we found the process (it took nearly four months for what we were told would be a four-week turnaround), this was not as difficult as the emotional turbulence we had to navigate while applying.

Was this an appropriate and necessary level of scrutiny? Surely, there are much better ways of achieving the same intended outcome.

1. Positive intentions & negative experience

Charity CEO: “Despite the stated positive intention behind this process of protecting the best interests of the charity, it didn’t feel that way.

“The process itself felt degrading and patronising. Putting together the required documentation meant that all of our existing Trustees had access to information on the worst decision that the waiver applicant had ever made. That imbalance of information could warp the power dynamic present on the Board and unintentionally manifest all sorts of implicit biases.

“In addition, the way in which the letters had to be written further puts the waiver applicant in a degrading position: instead of taking an asset-based approach, beginning with the reasons why the applicant should be considered for a Trustee position, it takes a deficits and risk-based approach, requiring the charity to defend itself against the harm this person could cause going forwards.”

Waiver trustee applicant: “When a process is difficult, intrusive and drawn out it is only natural to get frustrated but remember it’s not directly the fault of the people you are dealing with. For me I handled this by remembering the ‘why’.

“Why am I doing this? I’m doing it because I am deeply passionate about helping people in a difficult situation. If I get frustrated or take anything too personally it risks me being able to do something that I passionately want to do. So be smart, work with the people involved and not against them. Be humble and grateful for anything they do to help you accomplish your goals.”

2. Contribution barriers

Charity CEO: “People with convictions are told (and often believe) that it’s important to give back to the community through volunteering. Charities are told (and often believe) that their governance bodies should include people with lived experience of the issues that they’re working on. For charities like ours working in the criminal justice sector, accountability to our stakeholders means we should have strong representation of Trustees with lived experience of the system.

“And yet, the barrier to doing so is high – potential Trustees with convictions need to go through a charity’s normal application process without any guarantee of being able to accept the role, even if it is offered to them, given the waiver requirement. They must then go through a non-transparent waiver application process, which could take any number of months, handled virtually by the Charity Commission without a stated contact for questions. For applicants who have recently left prison and are trying to navigate the challenges of re-entry to society, this would add even more uncertainty and instability at a pivotal stage in their lives.”

Waiver trustee applicant: “As anyone with a conviction will tell you, one of the things you have to learn quickly and accept, is that life will be harder from the moment you return to society. You will have to work harder than anyone else; likely have to accept lower compensation than everyone else; prove yourself far more than others have to – but you won’t be able to change this. The only approach that made sense to me was to see it as a challenge.

“Each hurdle I overcome gives me great satisfaction and enduring strength. Becoming a trustee is certainly one of those challenges and I would encourage any applicant to develop the same mind-set.”

3. An uneven playing field

Charity CEO: “In many ways, the waiver requirement felt like yet another restriction placed to curtail the power of charities to hire and recruit the talent we need to do our work well. Otherwise, why would this restriction only apply to charities and not to other types of organisations? I’m not recommending that it should; but if companies can freely choose their Board of Directors, why can’t charities?”

Waiver trustee applicant: “It is entirely proper that the governance and management of charities continues to improve, as indeed it should for any corporation. I very much support due process but wonder why it is applied to one group of people in exclusion. Why is it acceptable that companies can freely choose their Board of Directors but charities cannot?

“Vetting for positions of responsibility should be fair and unbiased and most importantly based on the merit of the individual. The Trustee recruitment process this charity ran was one of the most inclusive and comprehensive processes I have ever been a part of – public or private.

“Whilst I respect the due process of the Charity Commission in this regard, it should be aware of just how much importance charities place on good governance themselves.”

Part two – Helpful hints and tips

Charity CEO: “Give yourself a good six months for this process (two to comfortably draft the documents, and four to receive the final decision). Ensure you address every point and subpoint, even if it feels repetitive. Prepare yourselves emotionally for the way in which you’ll need to write about a human being, and someone you respect enough to want on your Board (or Senior Management Team).

“And when you successfully complete the process, contact Unlock, and help them to demand change to this process. There is a much better way to ensure charities operate effectively, efficiently and in the best interests of the public without going through a humiliating process like this.”

Waiver trustee applicant: “The reason I wanted to write this blog was to help applicants and charities to understand the process a little better. The charity has done an amazing job laying out the roadmap of what needs to be done and by whom. I am honoured and excited to be joining their Board and look forward to contributing as much as I can.

“Follow this template carefully – it works. I also wanted to encourage all stakeholders to stick with it, the process is long and there are extended periods of radio silence. Charities and applicants alike remember why you are doing this – to be a resource for and to develop structures that really help people in need. Let’s get more Charity Commission waivers granted.”

Tips for approaching the application

Until this process is drastically changed, to save other charities some time, here is an honest take on what, how and why we drafted our application in a certain way in the hope that it can help you too.

The three sections you’ll need to prepare are:

The covering letter
A letter from the board (with e-signatures) – we recommend including an Appendix (see below)
A letter from the waiver applicant (and application)

1. Covering letter

This was the easiest part: we’ve included an outline of what we submitted, which you can use to draft yours.

2. Letter from the board

The first obstacle was to understand what the Charity Commission guidance for the Trustee Letter meant. We struggled to find helpful, practical information – it took days of combing through various articles. We leaned heavily on the charity Unlock to support us.

We summarised the information to be covered in the Trustee letter in the list available here. We then drafted a letter with the same subject headings, and addressed each bullet point individually and in depth.

We then took a further step: of thinking through each of the concerns that people at the Charity Commission might have (whether rational or irrational) including stereotypes about people with convictions. We responded to each one proactively e.g. the waiver applicant would not be the treasurer, they would not have access to the bank account, they would not be an account signatory… Yes, it felt demeaning; but also it felt necessary to include to get the waiver approved.

We also included an appendix that had the role specification for the Trustee (skills, expected commitments), information on our charity, and details of the open recruitment process that we underwent to select them.

The whole way through, we worked collaboratively with the waiver applicant, keeping them updated at every stage. We wrote multiple drafts and sent them back and forth, ensuring we were aligned throughout. The final version ended up being 10 pages with some repetition throughout – but we covered everything.

3. Letter from the waiver applicant (and application)

We downloaded the application questions and pasted them into word, a more accessible format – especially as we learned it was possible to email in the form, rather than submit it through the online portal. Some questions were confusing too – we didn’t understand what they meant and kept circling back to Unlock for help. Again, the waiver applicant and I passed the documents back and forth until we felt it was ready to submit.

I want to add that the applicant’s letter requirements (which were required to be focused on their crime and remorse) made me question whether the net harm caused to the applicant, in the discomfort, degradation and patronisation that we were requesting them to go through, was really worth the net benefit to the charity and the public as a result of having them as a Trustee. We envision a society where criminal records don’t come into the employment process, and if they must, they are considered against pre-conviction and post-release records rather than simply the crime itself. Every person must be given a chance to move on.

Covering letter skeleton

To Whom It May Concern:

CHARITY, a registered charity (no. XX) supports the application for a Trustee waiver by APPLICANT NAME.

On behalf of the Board of Trustees of CHARITY, we unanimously confirm that APPLICANT:

Is our agreed and preferred appointment to the Board of Trustees to fill the skillset of XXXX, supporting our strategic growth plans
Has been selected through a comprehensive, rigorous and open recruitment process, including DETAILS OF INTERVIEW/APPLICATION PROCESS
Is uniquely placed to support the charity, DETAIL SKILLS/FIT
Is not regarded as a risk to the charity’s governance or assets
Will not be in the role of Treasurer or be a signatory to the charity’s accounts
Would most effectively support the charity’s governance and strategic growth plans as a Board Trustee.

This reference is signed by the complete Board of CHARITY

Trustee letter

The following sections need to be included in the letter from the Board of Trustees (based on information from Unlock):

Details of the recruitment process that led to the applicant’s appointment or proposed appointment. Here you should emphasise your recruitment process (open is best practice) and this applicant was the best appointment as a result of that.
Support for the waiver by the Board of Trustees. Whether a majority of the trustees support the waiver application
Details of the duties and responsibilities of the trustee position that the applicant holds or wants to take up. Explain any relevance (or otherwise) of the reason the applicant is disqualified to the roles and responsibilities of the position. For example, if an unspent conviction is unrelated to the position, explain this.
The applicant’s unique contributions. Why the trustees consider that the applicant is the best appointment, for example, what special skills does this individual have which are not otherwise available from other applicants? Here you should mention the relevance of your charity objects/purpose, and highlight the user perspective your applicant can provide in this role.
Why the applicant cannot act in an advisory capacity rather than act as a trustee. You should emphasise that you were specifically seeking trustees. You should express your belief that the role you have is one that the charity should have the ability to appoint an individual to.
The view of the board of trustees. The trustees’ views on the position and reputation of the charity if the applicant’s appointment is made or maintained. You should also emphasise here the repercussions on the charity’s reputation if the waiver is refused.
Risk management. Whether the trustees have assessed, and can manage any risk to the charity and its assets in making or maintaining the appointment. For example, if the disqualification reason is financial mismanagement, if you have decided the applicant will not be in a treasurer position.

More information

We have shared this blog to help charities and individuals feel more confident in applying for a waiver for someone who might be disqualified because of their criminal record.

We have more information about doing this through our “Changes to charity rules” project page, in our practical guidance for charities and in our guidance for individuals.

You can also find details of Unlock’s policy work on this issue.

Blog – Westminster Hall debate on the disclosure of youth criminal records

The 28^th March saw a Westminster Hall debate on the disclosure of youth criminal records (read here or watch here). This followed the publication of the Justice Select Committee’s report on the subject, back in 2017. The report itself was a result of the Committee’s inquiry into disclosure of youth criminal records, launched in 2016, and in some ways a follow-up to their inquiry on the treatment of young adults in the justice system.

Bob Neill MP, Chair of the Committee, introduced the debate and thanked Unlock and the Standing Committee for Youth Justice for the evidence we provided. As part of the inquiry, we had arranged a seminar for Committee members and people with convictions to meet and discuss the impact of disclosing criminal records from childhood.

The government had committed to considering the Committee’s recommendations following the Supreme Court’s ruling on the filtering rules.

The debate was well informed and MPs highlighted the effects of disclosure on employment, education, housing, travel and insurance. Key points included:

John Spellar: “Is not there also an overall, macroeconomic issue, particularly as a number of employers are expressing concerns about shortfalls in labour either leading up to or following Brexit? Artificially restricting people from working and, indeed, from advancing is not just bad for those individuals, shocking though that is, but very bad for society and the economy.”

Bob Neill: “Low-paid and unsatisfactory jobs create burdens at every level, so the point is entirely true”.

David Lammy: “Trident – They were the ones who said to me, “Could you put this [criminal records] into your review? We are aware of a group of offenders who reach about 25 or 26 years old and want to move away from their criminal past but continue to reoffend because, as they grow up, they cannot get a job due to the [disclosure] regime that we have.”

This, in particular, resonates at a time when serious youth violence is dominating the headlines. What hope is there of reducing violence if young people with even minor criminal records see that it is impossible for them to get into legitimate, sustainable employment? This has an impact on these young men, their communities and wider society. As Victoria Prentis said:

“Does ruining their lives serve any real, practical purpose for the rest of society?”

The fundamental issue is the purpose of ongoing disclosure, and whether the existing regime delivers on that purpose – or actually hampers other good work going on in the justice system.

As David Lammy said, the Supreme Court judgment provides an opportunity:

“The Supreme Court decision could be interpreted narrowly by the Government, but from reading the report, the Committee’s mood suggests that it is an opportunity, notwithstanding all that is going on in Parliament, for the Government to take a broader view and to review our criminal records regime.

“My view is that there should be a balance between a rules-based system, which is largely what we have, and which is clearly cheaper—that is effectively why we have it, because there is time and one makes a judgment about spent convictions and disclosure—and a system that is slightly more sophisticated and might cost slightly more. There is a question about who pays. In the Canadian jurisdiction, the individuals seeking to get their criminal records looked at again pay for the system. In my view, a parole board, a magistrate or a judge could make the assessment.”

David Hanson has recently published his review into prison education provision in Wales. In the debate, he said:

“We focus in the report on training, employment and through-the-gate services, including prison and youth offender institution training and community rehabilitation companies in adult prisons and elsewhere…but whatever the system does with that training, someone ultimately has to get a job with a public sector body or an employer.”

Ban the Box was supported by all contributors – it’s not a silver bullet, said Bob Neill, but a base on which to build.

The Civil Service has now rolled out Ban the Box across all departments, and Liz Savile Roberts MP asked how many people with criminal records were employed in the Ministry of Justice – more on this later.

David Hanson is a keen advocate for Ban the Box. As he put it:

“The simple idea…is that disclosure happens after the job interview and job offer. The right to refuse is still there, but the judgments are made on the merits of the application and the individual in front of the employer—not on a conviction that may have happened some years ago.”

This is exactly the approach Unlock advocates: ask about criminal records only after an offer has been made (although we know not all Ban the Box employers do it this way).

As David Lammy highlighted, it’s important to understand where Ban the Box sits within reform of criminal records disclosure:

“…the problem with that initiative is, first, that it is voluntary and, secondly, that it is about the recruitment stage? The fundamental point about the work by the Select Committee and others who have raised this issue is that, beyond recruitment, there are questions about whether things should be disclosed to employers in the first place. It would be important for the Government not to lose that principle.”

There were many other excellent points made but I want to turn now to the responses from Edward Argar, Parliamentary Under-Secretary of State for Justice, on behalf of the government. The government has yet to formally respond to the Supreme Court’s judgment in the cases of P and others. No formal response was forthcoming here either, instead the Minister said:

“We work closely with the Home Office to give these things proper consideration. Although that judgment has been handed down, the order behind it has not yet been sent over to us. We await that order. When it is received, it is important that we are speedy and timely in addressing it.”

The Minister agreed that employment is a crucial factor in reducing reoffending – which costs 15bn a year on some estimates.

“…employers should not regard the disclosure of a criminal record as an automatic barrier to employment. A balanced judgment should be exercised, having regard to factors such as a person’s age at the time of the offence, how long ago it was, and the relevance to the application or post in question.”

Unfortunately, all the evidence shows that employers do regard a criminal record as a barrier to employment. This point was made several times during the debate, and also by Lord Kerr in the Supreme Court judgment. Given the government’s efforts to get prisoners into work on release, and their manifesto commitment to incentivising employers to recruit people with convictions, it seems odd to not acknowledge the real difficulties people face in gaining employment.

Perhaps the Minister’s perception is skewed by the apparently impressively inclusive approach of his own department. In response to Liz Savile Roberts’ question on the number of people with convictions employed at the Ministry of Justice, he said:

“My understanding is that of those people with a previous conviction who applied through the approach that has been taken in the civil service since 2016, 92% subsequently secured employment, which is a positive outcome.”

That certainly seems like a positive outcome. However, there doesn’t appear to be an official source for that figure, and we would welcome publication of the data because it’s important to understand this is context, such as the numbers it involves, what types of criminal records, how long ago, and why the 8% were refused.

I was pleased to see that the Minister agreed that the judgment – and the actions that must follow – creates an opportunity to consider the Committee’s recommendations for reform of the criminal records system. I hope this will mean that the Ministry of Justice (along with the Home Office) taken an holistic view of the current regime, its aims and the evidence, and look to make changes that benefit individuals with convictions, their communities and wider society.

Written by Christopher Stacey

Find out the latest on reform of the criminal records regime in our policy section on DBS filtering.

Request for participants (now closed) – Understanding the influence of an early life criminal record on adult life courses

Update – The request for participants is now closed. See the message below from Nicola, the researcher:

“Thank you to everyone who has been in contact with me with their generous offer to take part in my PhD research. I have been overwhelmed with responses and now have enough participants that fit the criteria, so the call for participants is now closed. This closure is based entirely on my capacity as a postgraduate researcher working alone on this project. I would like to thank everyone who has responded so positively and I will be working with Unlock to provide updates on the research as it progresses.”

Original request for participants

Unlock is pleased to be supporting the following research.

Nicola Collett, a PhD student at Keele University, is currently researching the potential influence of a criminal record acquired between the ages of 10-25, later on in adulthood.

She would like to talk to people aged 25 and over, to see what they have to say about their experiences of living with a criminal record relating to one or more non-custodial sentence(s) or out-of-court disposals attained between the ages of 10-25. This may include, but is not limited to, cautions, conditional cautions, fines, behaviour orders and suspended sentences. Experiences may be positive or negative. For some, it may be experiences are neutral. There is no upper age limit for this research.

Do you fit the following criteria?

Aged 25 or over
Received one or more non-custodial sentence(s) or out-of-court disposals, aged 25 or younger
Currently living in the Midlands or North West England

If you choose to take part, you will be interviewed by Nicola twice, for approximately 60 minutes each time. For your convenience, interviews will be conducted in your local area.

Participants will be offered a £10 voucher at the end of the second interview to thank you for your time, and for sharing your experiences with Nicola.

Press and media coverage of the Supreme Court judgment

There has been a significant amount of press and media attention on the judgment of the Supreme Court which ruled that the criminal records disclosure scheme as it applies to multiple convictions and childhood warnings/reprimands was found to be disproportionate.

Our co-director, Christopher Stacey, gave interviews on the day of the judgment which were featured on BBC News at 10, Sky News, Channel 5, Radio 4, BBC Essex and LBC. You can listen again to Christopher speaking on Radio Kent (listen below, 1m 35s in) on how the ruling will help many thousands of people with old and minor convictions.

More coverage of the ruling. including quotes from Unlock, can also be found in the following publications

There has also been a number of helpful commentary pieces that look more closely at the judgment. These include:

A criminal record, or a clean slate? (UK Human Rights Blog)
The Times view on background checks: Second Chance – A Supreme Court ruling will help ex-offenders into work (The Times)
P, G & W – A significant step forward, but still a significant way to go (Hodge, Jones & Allen Solicitors)

A personal response to today’s Supreme Court ruling

Elli has been actively involved in our work to push for changes to the DBS filtering rules and she featured in a BBC Newsnight piece that aired the night before the Supreme Court hearing started in June 2018 (watch again). Here, she responds to the news about the judgment in that case…

I’m pleased with the Supreme Court ruling and am hopeful that the government will change this system that holds back adults from work because of mistakes in youth.

Imagine being told that something reckless you did when you were an 11-year-old would impact the rest of your life?

At 19, I knew precisely what I wanted to do – to teach. My first step was to get some experience working with children so I applied to volunteer with a charity. This was the first time I read the words I now dread seeing on an application, “all volunteers are required to have an Enhanced DBS Disclosure”. At the time, I didn’t know what that meant, so happily awaited the paper back.

When it finally arrived, the enormity of seeing two criminal records, there in writing, hit me. I had forgotten all about that sorry episode when I was fresh out of primary school. Now though, panic coursed through me. How was I going to get into university? How was I going to tell the charity? How was I ever going to move on? How would I even get a job?

Arson. ABH (Actual Bodily Harm). On paper, two of the most severe offences a person can commit. Yet there they are. On the piece of paper which has to go to every future employer. Fortunately, in this instance, I was lucky. I was able to explain that the cautions I had were mistakes from when I was a child. 11 and 15 years old.

Like most children, I was impressionable and pushing boundaries. Fire is simply fascinating to a child. I had just started secondary school when a friend and I were playing with a lighter in the girls’ bathroom and set a toilet roll alight causing a small amount of damage. I was arrested (yes, arrested as an 11-year-old) for Arson – not criminal damage as my parents were told it would be – and told that the reprimand that I was given would come off when I turned 19. This still seemed harsh but was reasonable enough as it simply would be forgotten about when the time came.

A few years later in a different school, after months of being bullied, I was involved in a fight with another pupil in the school playground. The mother of the other pupil called the police rather than let the school deal with what it was – a cat fight between two teenage girls – where the only damage was some loose hair and few scratches, not to mention the embarrassment. I was arrested for Actual Bodily Harm (as was the other pupil) and encouraged by the police to accept the reprimand rather than fight it in court as it would come off in five years. Again, taking the advice of the police seemed appropriate as there would be no long term consequences.

Now approaching 30, and a qualified English teacher, I have faced hurdle after hurdle because of the childhood mistakes I made. From nearly being thrown off my teacher training course midway through when the university found out I had a criminal record, to countless job applications not even reaching interview stage. On the rare occasion I got to an interview stage, I have had to clarify my criminal record – constantly dragging up an embarrassing, irrelevant and juvenile piece of my past – to potential employers, strangers to me.

Fed up of working zero hour contracts with little stability, my husband and I made the decision to teach abroad at an international school last year. This will be our indefinite future because there is no guarantee that every time I apply for a teaching job in the UK, that my application will not go straight in the bin as the criminal record box is ticked – it is often just a box on the first page. They are not to know that this happened when I was a child, and I am given no chance to put the record straight.

Although my offences are reprimands they will never be filtered off under the current system because they are considered violent crimes. All this despite them being more than half my life ago.

The sad reality is that I am one of the lucky ones. I have had a supportive background, gone to good schools, lived in a nice cul-de-sac, and I am white. I have met countless others from broken homes, people growing up in the care system, who have not been so lucky – purely down to misfortune where they haven’t had the chances. These are the people that are sorely needed in the public sector – be it social care or teaching – where their experience would benefit so many others who find themselves in the same shoes. Surely that’s what we want as a society, and particularly from a justice system? To prevent these things happening. To educate and rehabilitate. To not judge, and to give second chances. Surely the primary aim for the justice system is to reduce crime and reduce reoffending. By giving these people jobs, it could go a long way.

Now that the Supreme Court has rules that the scheme as it applies to childhood warnings/reprimands is disproportionate, I hope that reforms of the justice system can be made – for the betterment of so many people, and indeed British society as a whole.

Find out more about Unlock’s campaign to wipe DBS checks clean of old/minor records, including our response to the Supreme Court judgment.

Unlock response to Supreme Court judgment on criminal records disclosure regime

Unlock, the leading charity for people with convictions, has today responded to the judgment of the Supreme Court on the criminal records disclosure regime. The charity provided an intervention to the court to highlight the unjust consequences of the current regime and the alternative, fairer systems available.

Commenting on the judgment, Christopher Stacey, co-director of Unlock, said:

“We welcome today’s judgment by the Supreme Court. Unlock intervened in this vital case to help the court understand the importance of the issues. We are pleased the court has ruled that two aspects of the criminal records disclosure scheme are disproportionate and in breach of Article 8 of the European Convention on Human Rights; in particular, the blanket rules which require the automatic disclosure of all convictions where a person has more than one conviction, and the requirement that some childhood cautions be disclosed indefinitely. This is an important ruling which stands to affect many thousands of people with old and minor criminal records who have been unnecessarily anchored to their past.

“Today is a crucial step towards achieving a fair and proportionate filtering system that takes a more calibrated and targeted approach towards disclosing criminal records. Recent reviews by the Law Commission, Justice Select Committee, Charlie Taylor and David Lammy MP have all stressed the need to look at the wider criminal records disclosure regime. It is now time for the government to act. We strongly urge the government to take prompt and considered action on the filtering system, as well as committing to carrying out a fundamental review of the wider criminal records disclosure regime.”

In the last 5 years alone, over 1 million youth criminal records were disclosed on standard or enhanced criminal record checks that related to offences from more than 30 years’ ago. The current system has multiple, harsh consequences which can have damaging effects on individuals. It deters people from applying for employment, and causes high levels of stress, anxiety and feelings of shame and stigma for those who do apply. The current regime acts as an additional sentence that often runs for life. It desperately needs reforming.

While certain offences clearly should be disclosed to employers, it is plain common sense that a fair system should not unnecessarily blight the lives of people who are trying to get on in life by disclosing old, minor and irrelevant information which holds them back and stops them from reaching their potential.

Some of the shortcomings of the current filtering system have today been recognised by the Supreme Court. The court described the rule for disclosing multiple convictions and its impact on individuals as ‘capricious’ (para 63). The inclusion of youth warnings and reprimands in the disclosure regime is described as a ‘category error’ and an ‘error of principle’ (para 64).

A fair, proportionate and flexible filtering system should be developed which protects the public without unduly harming the ability of people to move forward positively with their lives. The Supreme Court accepted that a fair system can be based on rules and pre-defined categories. We believe it is possible to develop an acceptable system which operates principally with automatic rules, but these must be the right rules with the right outcomes. There are a number of practical steps that the government can take which we would support, including:

Removing the ‘multiple convictions’ rule and so enabling more than one conviction to be filtered
Reducing the list of offences not eligible for filtering
Creating a distinct system for the disclosure of criminal records acquired in childhood, and taking a more nuanced approach to those acquired in early adulthood.

Crucially however, we believe that the system must have a discretionary filtering process with a review mechanism which could be accessed by people whose criminal records do not benefit from the automatic filtering rules. Although the Supreme Court did not consider this to be necessary for the regime to be in accordance with the law, we believe this is vital to allow some cases to be considered on a case-by-case basis, to ensure that the rules do not operate unfairly. We urge the government to take this opportunity to look at introducing such a scheme that incorporates lessons from other similar schemes, like that in Northern Ireland.

More broadly, there is an overwhelming case for a fundamental review of the criminal records disclosure regime. Reviews by the Law Commission, Justice Select Committee, Charlie Taylor and David Lammy MP have all concluded that there is a need to look at the wider regime. The criminal records disclosure system and the Rehabilitation of Offenders Act 1974 are increasingly unfit for purpose and is open to abuse by employers and others. We encourage the government to take this opportunity to commit to carrying out a fundamental review to address these systemic issues.

Enver Solmon, CEO of Just for Kids Law, said:

“We are delighted that the Supreme Court has upheld the decision of the Court of Appeal in favour of our client and are proud to have secured a landmark judgement that will benefit thousands of children issued with cautions each year, a shocking disproportionate number of whom are from Black and Minority Ethnic backgrounds.

“Our client should never have been given a criminal record that stays with him for life. The judgement makes clear that the disclosure of reprimands and cautions, the legal equivalent of a slap on the wrist, is disproportionate and damaging to the future rehabilitation of children preventing them from moving on from their past. A parliamentary inquiry reached the same conclusion nearly two years ago when it stated that children were being unfairly denied a second chance. There is now an overwhelming view shared by the higher courts and MPs that the government should act immediately to ensure no child who is given a caution ends up with a criminal record that stigmatises them for life. The government should also now conduct a wide-ranging review of the entire criminal records disclosure regime for children and and young people.”

Corey Stoughton, Advocacy Director of Liberty, said:

“P made a mistake a long time ago and has been unfairly punished ever since. Using overly broad bureaucratic rules that deny people meaningful careers by forcing them to to carry a scarlet letter for life is both cruel and pointless”

“Today’s court decision holds the promise of a fresh start for thousands of people who deserve a second chance. The Government must finally reform this arbitrary scheme”

Notes

Unlock is an independent, award-winning national charity that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence.
There are over 11 million people in the UK with a criminal record.
Unlock’s website is unlock.devchd.com.
High-resolution images for media use are available from Unlock’s Flickr account.
More information about our policy work on the DBS filtering system is available here.
Unlock’s report, A life sentence for young people, was published in May 2018 and can be downloaded at https://unlock.org.uk//youth-criminal-records-report/
Unlock has published a briefing on the DBS filtering process – available to download at https://unlock.org.uk//wp-content/uploads/misc/DBS-filtering-Briefing-May-2018.pdf
Unlock was represented in these appeals by Salima Budhani and Theodora Middleton, Bindmans LLP, and barristers Caoilfhionn Gallagher QC and Jesse Nicholls, Doughty Street Chambers.
Unlock’s intervention in the Supreme Court can be downloaded at https://unlock.org.uk//wp-content/uploads/misc/1-Gallagher-2-P-G-W-Unlock-Case.pdf
The judgment was handed down on Wednesday 30^th January 2019. Press summary here.
Press and media coverage of the judgment can be found here.
Warnings and reprimands are now known as youth cautions.

About the cases before the Supreme Court

These appeals consist of 4 cases: P, G, W (appeals from the Court of Appeal of England and Wales) and Gallagher (an appeal from the Court of Appeal of Northern Ireland). Unlock intervened in the case.

In all four cases, the Government appealed, having lost in the Court of Appeal. There are summaries of the cases on Unlock’s website – https://unlock.org.uk//policy-issues/specific-policy-issues/filtering/cases-challenging-dbs-filtering-system/

The current filtering 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 to prospective employers. For certain types of work, particularly work with children or vulnerable adults, the 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 (T v Chief Constable of Greater Manchester) to introduce a “filtering” process. Single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence (including a suspended one) 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 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.

Support for reform

The Law Commission, in its review of criminal records disclosure and non-filterable offences (published January 2017), said: “Given the vast array and magnitude of the problems identified by our provisional assessment of the disclosure system as a whole, there is a compelling case to be made in favour of a wider review. Our conclusion is that the present system raises significant concerns in relation to ECHR non-compliance and, what may be considered to be, the overly harsh outcomes stemming from a failure to incorporate either proportionality or relevance into disclosure decisions. An impenetrable legislative framework and questions of legal certainty further compound the situation. This is an area of law in dire need of thorough and expert analysis. A mere technical fix is not sufficient to tackle such interwoven and large scale problems.” See https://www.lawcom.gov.uk/project/criminal-records-disclosure/
The House of Commons Justice Select Committee, in its report into the disclosure of youth criminal records (published October 2017), concluded that the aim of the youth justice system was being “undermined” by the system for disclosure of youth criminal records “which instead works to prevent children from moving on from their past and creates a barrier to rehabilitation.” See https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/416/41607.htm
In his review of the youth justice system (published December 2016), Charlie Taylor, who is now Chair of the Youth Justice Board, said “It remains the case that a criminal record acquired in childhood can have far-reaching effects that go well beyond the original sentence or disposal. Certain sentences will never become spent, and certain convictions or cautions will always be disclosed when an individual seeks employment in a particular field. A key principle underpinning my approach to the review is that children who break the law should be dealt with differently from adults. In my view the current system for criminal records lacks a distinct and considered approach to childhood offending.” See https://www.gov.uk/government/publications/review-of-the-youth-justice-system
David Lammy MP, in his review into the treatment of, and outcomes for Black, Asian and Minority Ethnic individuals in the criminal justice system (published September 2017), said: “It must be recognised that a job is the foundation for a law-abiding life for ex-offenders, but that our criminal records regime is making work harder to find for those who need it the most. The system is there to protect the public, but is having the opposite effect if it sees ex-offenders languishing without jobs and drawn back into criminality. A more flexible system is required, which is capable of recognising when people have changed and no longer pose a significant risk to others.” See https://www.gov.uk/government/publications/lammy-review-final-report

Case studies

Anita (not her real name). When she was 11, she was playing with a lighter in the girls’ bathroom at school and set a toilet roll alight causing around £100 of damage. She was arrested for Arson and told that the reprimand she was given would come off her record when she turned 19. Then after months of being bullied in secondary school, she was involved in a fight. She and the other pupil were both arrested for Actual Bodily Harm. She was encouraged by the police to accept a reprimand rather than challenge it in court and was told it would come off her record in five years. Now nearly in her thirties, she’s a qualified English teacher. However, not only was her record not removed like she was told it would be, but her two reprimands come up on enhanced DBS checks and will do under the current DBS rules for the rest of her life. The hopelessness of trying to find work has led her to working abroad and to bouts of depression and anxiety.

Michael (not his real name). When he was 17, Michael was convicted of theft of a coat from a market stall. He was fined £30. Ten months later, 23 days after turning 18, he was convicted of stealing a motor cycle and driving without insurance. He was fined £50 and sentenced to 24 hours at an attendance centre. That was 36 years ago; he’s come a long way since then. He’s now in his fifties. However, Michael’s long-forgotten past has come back to haunt him and he’s concerned about his work as a finance director. He could lose his job and a career that he’s worked hard for.

Under the current filtering system, Anita and Michael’s criminal record will be disclosed on a standard or enhanced DBS check for the rest of their lives. That’s what we’re trying to change.

More case studies can be found in our youth criminal records report and in our briefing on the DBS filtering regime.

Supreme Court to issue judgment on landmark criminal records disclosure regime case on Wednesday 30th January

On Wednesday 30^th January at 9.45am, the Supreme Court will hand down its judgement in the case of R (on the application of P, G and W) and R (on the application of P) v Secretary of State for the Home Department and others.

The criminal records disclosure scheme has twice been ruled unlawful – but instead of putting in place the urgent reform that’s so desperately needed, the Government chose to fight this all the way to the Supreme Court.

The case was heard in the Supreme Court in June 2018. For the first time in Unlock’s history, we intervened in the case because we wanted to help the Supreme Court understand the importance of the issue, the failings of the current system, and how it could be changed for the better. We believe the current filtering system that applies to standard and enhanced criminal record checks doesn’t go far enough; it is blunt, restrictive and disproportionate.

We hope that the Supreme Court will reject the Government’s appeal. We stand ready to work with the Government to reform and implement a system that takes a more calibrated and targeted approach towards disclosing criminal records.

Our response to the judgment will be on our website – at unlock.devchd.com/filtering – once the judgment is published on Wednesday. We’ll also be tweeting using the hashtag #dbsfiltering.

In the meantime, you can read a blog about the Supreme Court hearing from our co-director, Christopher Stacey, which gives an interesting overview and some reflections on when the case was heard in June 2018.

And whatever the outcome on Wednesday, we will be calling on the government to fundamentally re-look at their position on the criminal record disclosure regime.

Please help us with this work by supporting our campaign to wipe DBS checks clean of old/minor criminal records.The money we raise will go towards our campaign work to make sure the government takes action. This will take our time and resources over the coming months – crucial if we are to make most of the opportunity and get the best possible outcome for people with old and minor criminal records. We really need your support to do this!

Google settles out of court with individual who has spent conviction, in the UK’s first ‘right to be forgotten’ case involving criminal records

The problem of spent convictions appearing online is a real and significant problem for many people.

Two individuals with spent convictions brought claims against Google for refusing to de-list search engine results that contained details of their now spent convictions. The cases, the first in the UK on the so-called ‘right to be forgotten’, had a judgment from the High Court in April this year. One case was successful (NT2) and the other one failed (NT1).

The one that failed had appealed to the Court of Appeal and the case was due to be heard today, the 20^th December, but the appeal has been withdrawn as the case has been settled. This could be because Google has agreed to de-list. It could be because NT1 has decided not to proceed with the appeal.

We will be doing more work in early 2019 to better understand the implications of the High Court judgment from back in April.

As it stands, we continue to suggest that people with spent convictions apply to Google and other search engines if there are search results that link to articles with spent convictions. If the request to de-list is refused, we encourage people to raise a formal complaint with the ICO and we’re still collecting evidence of responses to these types of requests.

Unlock speaks to Radio 4’s Law in Action – Should having a past block a child’s future?

Unlock talks to Joshua Rozenberg about the issues affecting those who receive criminal convictions in childhood. They also discuss the impending result of the Government’s appeal to the Supreme Court against a Court of Appeal decision which ruled that the current system of people having to declare old and minor records is unnecessary, disproportionate and unfair.

You can listen to the programme here or below.