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Category: News on policy issues

Unlock comment: Government announces scrapping of ‘disqualification by association’ in schools

Commenting on today’s news of changes to the childcare disqualification arrangements, Christopher Stacey, co-director of Unlock, said:

“Today’s announcement to scrap the ‘disqualification by association’ rule from schools is long overdue but very welcomed. We’ve been calling for it to be scrapped for nearly 4 years because it did nothing to contribute towards safeguarding in schools. The arrangements were disproportionate, unfair and ineffective.

 

Yet the fallout should not be underestimated – we know significant numbers of people have been unnecessarily suspended and some have lost their jobs as a result. Only two weeks ago we featured the story of Donna, whose conviction meant her children lost their jobs in schools. These changes will make a huge difference to the families and loved ones of people with convictions.”

In draft guidance published by the Department of Education, it states that “schools should not ask their staff questions about cautions or convictions of someone living or working in their household.” In response to the change, schools should “review their staffing policies and safer recruitment procedures, and make changes accordingly”.

The changes will come into force on the 31st August 2018. The ‘disqualification by association’ element will be removed from schools and other non-domestic settings; it will remain in place for roles such as home-based childminding. We will be updating our practical guidance for individuals and supporting schools to ensure that they properly implement the changes.

Notes

  1. Read our submission to the government consultation in 2016
  2. More information about our policy work on ‘disqualification by association’, including case studies of people affected.
  3. 78% of respondents to the government’s consultation felt that the current ‘disqualification by association’ arrangements were unfair and disproportionate to the risk to children. Read the government’s consultation response.

Landmark case on disproportionate criminal records disclosure regime reaches Supreme Court

The Supreme Court will tomorrow hear the Government’s appeal in a long running case about the disclosure of criminal records. The Government is arguing that their current approach to disclosing old and minor cautions and convictions on standard and enhanced criminal record checks, often decades later, is fair. We disagree. And so did the High Court when in January 2016 it ruled that the current system is unlawful. Appealing against the ruling, the Government lost again at Court of Appeal in May 2017. The Government is now taking the case to the Supreme Court. The hearing will run from Tuesday 19 to Thursday 21 June 2018.

Unlock has intervened in the case to help to make sure that the Supreme Court understands the importance of the issue, the failings of the current system, and how it could be changed for the better. This is a first for Unlock; it is the first time we have acted as an intervener before the courts, reflecting the importance of this issue and these appeals.

We’ve put forward strong arguments on behalf of people who are unfairly affected by the criminal records disclosure regime because of its blunt rules which result in, for example, indefinite disclosure in all cases where someone was convicted of more than one offence, no matter how old or minor those offences were.

Christopher Stacey, Co-director of Unlock, a charity for people with convictions, said:

“Our research shows the significant number of people who are being unnecessarily anchored to their past as a result of a DBS filtering system which is blunt, restrictive and disproportionate. 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 over 30 years’ ago.

 

“The current system has multiple, harsh consequences and damaging effects on individuals – in particular it deters people from applying for employment, and for those that do apply it brings high levels of stress, anxiety and feelings of shame and stigma. It acts as an additional sentence that often runs for life. It desperately needs reform.

 

“A fairer, more proportionate and flexible system should be developed that protects the public without unduly harming people’s opportunity to get on in life. 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.”

Rosie Brighouse, Lawyer for Liberty and solicitor for P, one of the individuals in the case, said:

“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 has chosen to fight this all the way to the Supreme Court.

 

“All P wants to do is move forward with her life. She is unable to do so because of two extremely minor offences committed nearly 20 years ago. We hope judges will agree that this situation is deeply unfair and disproportionate, and that it’s time for the Government to put things right.”

ENDS

Notes 

  1. 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.
  2. There are over 11 million people in the UK that have a criminal record.
  3. Unlock’s website is unlock.devchd.com.
  4. High-resolution images for media use are available from Unlock’s Flickr account.
  5. 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/
  6. 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
  7. Unlock is represented in these appeals by Salima Budhani and Theodora Middleton, Bindmans LLP, and barristers Caoilfhionn Gallagher QC and Jesse Nicholls, Doughty Street Chambers.
  8. There is no date for when the judgment will be handed down. It is not likely to be until late 2018, at the earliest.

 

About the cases

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). In all four cases, the Government is appealing, 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 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.

New paper published: University admissions and criminal records – Lessons learned and next steps

Today Unlock has published a paper, University admissions and criminal records: Lessons learned and next steps.

For the last two decades, access to higher education in the UK for people with a criminal record has been seen to be much more difficult. This is, in part, because of the way that the Universities and Colleges Admissions Service (UCAS) has required all applicants to disclose whether or not they have a certain criminal record when completing the standard UCAS application.

But that is now changing. UCAS has announced that it is removing the requirement for applicants to disclose if they have relevant unspent convictions on the application form.

That is why this paper is so timely; it brings together three short essays that look at the lessons that can be learned from the US, and what is next for university admissions and criminal records in the UK.

Drawing on newly published research (by Bradley Custer), sharing lessons from the US (by Dr Alexandra Cox), and looking at the UK context (by Christopher Stacey), this paper provides some useful insights that will be helpful in the work that will now need to be done to ensure that the changes announced by UCAS are followed through by individual institutions to remove unnecessary barriers to higher education for students with a criminal record.

Commenting on the paper, Christopher Stacey, co-director of Unlock and author of one of the essays, said:

“These three short essays collectively show why the change that UCAS announced last week is the right way forward. The starting point should be that criminal records should not be a part of a university’s assessment of academic merit. The change by UCAS sends a strong signal to universities that they should not be collecting criminal records from all potential students at application stage, and I expect to see the majority of institutions decide not to ask about criminal records for admissions purposes for most courses.”

Bradley Custer, from Michigan State University and author of one of the essays, said:

“Research on the use of criminal histories in university admissions in the UK and the US casts serious doubt as to whether the practice yields any net benefit to campus safety, as intended. Rather, more signs point to the process being harmful barriers to prospective students who seek second chances and opportunities to pursue higher education. Dropping the criminal history question was the right move by UCAS, and thousands of people with criminal histories can now access higher education because of it.”

Dr Alexandra Cox, from University of Essex and author of the one of the essays, said:

“Universities should not create any extra barriers to participation in higher education beyond those that relate to legally enshrined aspects of a criminal conviction.  At State University of New York, we recognised that there would be a number of degree programs, from nursing to law, which involved career paths that would require criminal background checks and, in some cases, exclude applicants with convictions.  However, should an individual with a conviction apply to a law program, for example, we felt that they should not be barred from participating in a program even if the barriers to entry in the profession were high. It also recognises the evolving common sense about risk and public safety in the professions.”

 

Download: University admissions and criminal records: Lessons learned and next steps

Unlock is taking forward many of the areas discussed in the paper as part of its Unlocking students with conviction project.

Details of the Supreme Court hearing

As part of our work to wipe DBS clean of old and minor criminal records, I wanted to post the details of the Supreme Court hearing. (We’ll update this post with more specific details as and when we have them.)

The case is listed to be heard over 3 days, starting Tuesday 19th June.

The case numbers are as follows:

  1. P G W – Case No. UKSC 2017/0121
  2. Gallagher – Case No. UKSC 2016/0195

You can watch the hearing through the Supreme Court website.

Members of the public can attend the Supreme Court. Find out more details about visiting the court.

We’ll be at the court for all three days, and we’ll be tweeting using the hashtag #DBSfiltering.

There is no date for when the judgment will be handed down. The latest developments will be posted here.

New research finds thousands of people every year struggle because of youth criminal records from decades ago

Unlock, the country’s leading charity for people with convictions, has today published research on the impact of criminal records acquired in childhood and early adulthood.

New data in the report, A life sentence for young people, shows that hundreds of thousands of people are being affected every year, and often many decades later, because of mistakes they made when they were children or young adults. In the last 5 years alone, over 2.25 million youth criminal records were disclosed on standard/enhanced checks by the Disclosure and Barring Service (DBS) that were over 15 years old.

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

“This report shines a spotlight on the sheer number of very old and minor criminal records being routinely and unnecessarily disclosed on standard and enhanced DBS checks, raising serious questions about the effectiveness of the criminal record disclosure regime and in particular the DBS filtering process.

 

“From employment, volunteering and studying at university, to travelling abroad and buying home insurance, this report shows how a criminal record represents a significant barrier to thousands of people, even decades later. In the last 5 years, nearly 1 million youth criminal records on standard/enhanced checks were over 30 years old. This shows that the regime is in desperate need for reform.

 

“That’s why we’ve today launched a CrowdJustice appeal. Money raised will help cover Unlock’s legal costs for intervening in a landmark Supreme Court case next month. We will make sure that the court understands the importance of the issue, the failings of the current system, and how it could be changed for the better.”

 

The report was featured today by the Guardian.

 

Key findings in the report

In the last 5 years alone on standard/enhanced DBS checks:

  1. Nearly 850,000 people have been affected by the disclosure of a youth criminal record on a standard/enhanced check.
  2. Over 3.5 million youth criminal records have been disclosed
  3. Over three-quarters of youth criminal records disclosed (almost 2.75 million) were over 10 years old.
  4. Over 2.25 million youth criminal records disclosed were over 15 years old.
  5. Nearly 1 million youth criminal records disclosed were over 30 years old.

 

CrowdJustice appeal

Today’s report coincides with the charity launching a crowdfunding appeal to help raise money to pay for the charity’s legal costs in intervening a landmark Supreme Court case next month.

In June, the Supreme Court will hear the appeal of the Government which is arguing that their current approach to disclosing old and minor criminal record on standard and enhanced DBS checks, often decades later, is fair. Unlock disagrees. In fact, a criminal record that someone gets in their youth can, in effect, be a life sentence of stigma and discrimination.

This is the first time in its 18-year history that Unlock has intervened in a legal case. 

Update: We are pleased that we reached our crowdfunding target. Thank you for your support. 

 

Notes

  1. 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.
  2. There are over 11 million people in the UK that have a criminal record.
  3. Unlock’s website is unlock.devchd.com.
  4. High-resolution images for media use are available from Unlock’s Flickr account.
  5. The report is available to download at https://unlock.org.uk//wp-content/uploads/misc/youth-criminal-records-report-2018.pdf. A summary of the report can be downloaded here.
  6. Unlock has been granted permission by the Supreme Court to intervene in the case. We want to put forward strong arguments on behalf of everyone who is unfairly affected by the criminal records disclosure regime because of its blunt rules which result in, for example, indefinite disclosure in all cases where someone was convicted of more than one offence, no matter how old or minor those offences were. Intervening will help us to make sure that the Supreme Court understands the importance of the issue, the failings of the current system, and how it could be changed for the better. So we’re raising money now to pay for the legal costs that will help us to do this.

 

Case studies

Under the current system for jobs involving standard or enhanced DBS checks, Michael & Anita’s criminal record will be disclosed for the rest of their lives

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.

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.

Unlock submission on proposals to amend disclosure rules in Scotland

Unlock has made a submission to the Scottish Government in response to their call for views on the Management of Offenders (Scotland) Bill. The focus of our response is on Part 2 of the Bill – Disclosure of convictions.

Download Unlock’s submission.

Unlock comment: High Court judgment on ‘Right to be Forgotten’ and spent convictions case

Commenting on the High Court ruling on the Right to be Forgotten and spent convictions case, Christopher Stacey, co-director of Unlock, a national charity for people with convictions, said:

“The judgment from the High Court represents a key victory for people with a criminal record. More and more in recent years, people with spent criminal convictions have found their past mistakes have continued to haunt them because employers, insurers and members of the public have been able to use internet search engines such as Google to get to old media reports relating to their now spent record.

 

“The purpose of the Rehabilitation of Offenders Act 1974 is to protect people from stigma and discrimination once their conviction becomes spent, with the convictions then only lawfully subject to disclosure in accordance with strict rules in relation to specific roles, such as working with children.

 

“Internet search engines play a key role here because they control what results will be returned when a person’s name is searched, and it is open to them to delete or “de-index” links which are old and out of date.  However, we have seen a significant number of instances of internet search engines refusing such requests, and the Information Commissioner’s Office then rejecting an appeal from the affected person. The High Court’s judgment means that internet search engines such as Google will need to review their approach so as to ensure that sufficient weight is attached to the fact a conviction is spent”

The High Court judgment relates to two cases involving individuals with spent convictions that brought claims against Google for refusing to de-list search engine results. One case was successful (NT2) and the other failed (NT1) – extracts of the judgment are below.

 

Notes

  1. The High Court judgment is available online.
  2. The High Court judgment has been covered in articles by the BBC and Guardian as well as by Carter Ruck, the solicitors who acted for the individuals in this case.
  3. Unlock is working closely with the solicitors Carter Ruck and have several other individuals with on-going de-listing and take-down complaints.
  4. In its submissions, the ICO endorsed the principle that “once a criminal has served his or her time, it is important that the ability of that individual to rehabilitate themselves is not unduly prejudiced.”
  5. Key extracts of the judgment are copied below.
  6. Find out more about our policy work on the ‘google-effect’ and spent convictions.

 

NT2 case – Succeeded 

[Paragraph 223] My key conclusions in respect of NT2’s delisting claim are that the crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order should be made. The conviction was always going to become spent, and it did so in March 2014, though it would have done so in July of that year anyway. NT2 has frankly acknowledged his guilt, and expressed genuine remorse. There is no evidence of any risk of repetition. His current business activities are in a field quite different from that in which he was operating at the time. His past offending is of little if any relevance to anybody’s assessment of his suitability to engage in relevant business activity now, or in the future. There is no real need for anybody to be warned about that activity.

 

NT1 case – Failed

[Paragraph 170] The key conclusions I have drawn are these. Around the turn of the century, NT1 was a public figure with a limited role in public life. His role has changed such that he now plays only a limited role in public life, as a businessman not dealing with consumers. That said, he still plays such a role. The crime and punishment information is not information of a private nature. It was information about business crime, its prosecution, and its punishment. It was and is essentially public in its character. NT1 did not enjoy any reasonable expectation of privacy in respect of the information at the time of his prosecution, conviction and sentence. My conclusion is that he is not entitled to have it delisted now. It has not been shown to be inaccurate in any material way. It relates to his business life, not his personal life. It is sensitive information, and he has identified some legitimate grounds for delisting it. But he has failed to produce any compelling evidence in support of those grounds. Much of the harm complained of is business-related, and some of it pre-dates the time when he can legitimately complain of Google’s processing of the information. His Article 8 private life rights are now engaged, but do not attract any great weight. The information originally appeared in the context of crime and court reporting in the national media, which was a natural and foreseeable result of the claimant’s own criminal behaviour. The information is historic, and the domestic law of rehabilitation is engaged. But that is only so at the margins. The sentence on this claimant was of such a length that at the time he had no reasonable expectation that his conviction would ever be spent. The law has changed, but if the sentence had been any longer, the conviction would still not be spent. It would have been longer but for personal mitigation that has no bearing on culpability. His business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. The information retains sufficient relevance today. He has not accepted his guilt, has misled the public and this Court, and shows no remorse over any of these matters. He remains in business, and the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past. Delisting would not erase the information from the record altogether, but it would make it much harder to find. The case for delisting is not made out.

Unlock letter to Justice Committee on Government’s response to report on youth criminal records

Unlock and the Standing Committee for Youth Justice (SCYJ) have written to the Justice Select Committee (JSC) regarding our concerns over the Government’s response to the JSC’s inquiry into the disclosure of childhood criminal records.

Christopher Stacey, Co-director of Unlock, sets out our concerns that the Government is using the Supreme Court case on DBS check filtering, expected to be heard in June, as an excuse for not addressing the recommendations made by the JSC.

The letter also discusses specific concerns, for example that the proposed new guidance by the Government on criminal records disclosure will simply have to be reviewed once reform takes place. We ask the Government to publish the Civil Service’s Ban the Box implementation plan, and to commit to undertake research into the costs of unemployment among people with a criminal record, as recommended in the Lammy review. We also raise concerns around clarifications needed in housing allocation guidance.

The full letter is available here.

Blog – The answer to Oxfam’s safeguarding problems is not enhanced DBS checks

The latest blog by Christopher Stacey (published on the Huffington Post) questions the use of enhanced DBS checks as the answer to Oxfam’s safeguarding problems.

Read it here.

Government guidance on homelessness makes it clear that spent convictions should be ignored

In the government’s updated Homelessness code of practice, it has made clear that convictions that are spent under the Rehabilitation of Offenders Act 1974 should be ignored.

Chapter 23 focuses on “people with a offending history”, and section 23.29 reads:

“23.29 People with an offending history face barriers to accessing accommodation across tenures. Housing authorities providing help to secure or securing accommodation should be aware of the provisions of the Rehabilitation of Offenders Act 1974 (as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012). The Rehabilitation of Offenders Act 1974 sets out timescales for when convictions become spent, after which it is unlawful for social and private landlords to take spent convictions into account when determining whether the person is suitable for housing.”

The government had recently consulted on updating this guidance, which we submitted a response to. As part of our submission, we made the point that the earlier version of this guidance should be strengthened. This is particularly important given a recent case where a local authority were challenged in court because they took into account an applicant’s spent criminal record.

Find out more information about our policy work on housing.

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