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For people with criminal records
For people with criminal records

Category: State use of criminal records

Northern Ireland makes changes to the disclosure of convictions and cautions in response to Supreme Court ruling

Yesterday, the Department of Justice (DoJ) in Northern Ireland announced it was making changes to what is disclosed on standard and enhanced criminal record checks, in response to the Supreme Court ruling in January 2019.

The criminal record checking process in Northern Ireland (administered by AccessNI) is separate to that in England and Wales (administered by the Disclosure and Barring Service) so these changes will only affect those applying for jobs and volunteer roles in Northern Ireland.

Announcing the changes in Northern Ireland, Justice Minister Naomi Long MLA, said:

“As the result of a ruling made by the Supreme Court in January 2019, I have removed a restriction in the AccessNI scheme whereby if a person had more than a single conviction on their criminal record, all convictions held on their criminal record were disclosed on a standard or enhanced AccessNI check. This change ensures that the scheme is more proportionate in terms of the information released and that individuals will not find obtaining employment more difficult because of old and minor convictions in their past.

 

“In addition, any information about offences committed by persons under 18 which were adjudicated outside a court process (non-court disposals), such as informed warnings, cautions or youth conference plans will be scrutinised by the Department’s Independent Reviewer of criminal record certificates and will only be disclosed where she determines that the offence could undermine the safeguarding or protection of children and vulnerable adults or the protection of the public.”

This important announcement by the DoJ deals directly with the two aspects of the current rules that the Supreme Court found were not in accordance with the law. The changes will be introduced on an administrative basis until legislation has been passed meaning that certificates issued by Access NI will now comply with the law. Unlock has called on Westminster to implement a remedial order as soon as practical so that the DBS can comply with the ruling when issuing certificates in England and Wales. A remedial order should ensure that youth cautions, reprimands and warnings were filtered out, and the multiple conviction rule no longer applied. This is, in effect, what the Department of Justice has announced for Northern Ireland.

It is disappointing that the Department for Justice fell short of committing to a process for considering wider reforms. The Supreme Court is not the only critic of the current regime – the Law Commission, the Justice Select Committee and David Lammy MP have all made recommendations for reform. The changes announced in Northern Ireland have not looked at the list of offences that cannot be removed from standard or enhanced checks (so-called “specified offences”) nor has it changed the fact that any length of prison sentence (including suspended sentences) can never be removed, even by way of some form of review. In addition, in Northern Ireland in particular, the time it takes for convictions to become spent under the Rehabilitation of Offenders (Northern Ireland) Order 1978 remain far too long and are not evidence-based. Unlock continues to call for a root-and-branch review of the criminal records disclosure regime.

That said, we very much welcome the changes announced – they will have a significantly positive impact on people with old and minor criminal records in Northern Ireland. It is deeply disappointing that the UK government has yet to properly respond to the Supreme Court judgment as it applies in England & Wales.

Together with the charity Transform Justice, Unlock launched the #FairChecks movement to help push for a fresh start for the criminal records system. Our outdated criminal records regime is holding hundreds of thousands of people back from participating fully in society. Even a minor criminal history can produce lifelong barriers to employment, volunteering, housing and even travelling abroad, many years after people have moved on from their past. This must change. The #FairChecks movement is calling for the government to launch a major review of the disclosure of criminal records to reduce the length of time a record is revealed.

 

 

Notes

  1. Sign up and support the #FairChecks movement
  2. The announcement from the Department of Justice in Northern Ireland
  3. Find out more about our work on challenging the DBS ‘filtering’ process as it doesn’t go far enough

Blog – The impact of our disclosure calculator and helping the Ministry of Justice to develop one

It’s about a decade since we first started work on developing an online tool to help people work out if they need to tell employers and others about their criminal record.

It was around 2009 when we started to receive an increasing number of calls to our helpline from people wanting to know if – and when – their convictions became ‘spent’ under the Rehabilitation of Offenders Act 1974. This was at a time when the Disclosure and Barring Service didn’t issue basic checks, so it was difficult for people to get this answer from the government. As a small charity with limited resources, and given many people felt uncomfortable ringing up and providing sensitive personal details over the phone, we knew there was a better solution.

The concept was simple – an online tool that worked this out. Ultimately, our aim was that as many people as possible could get instant results online to the question “when does my criminal record become spent”.

In practice, it was a lot more difficult than that. The law is complicated, and so after a lot of hard work, we launched www.disclosurecalculator.org.uk in October 2011, having had a small grant from a foundation to develop it. We were pleased to have Lord McNally, who was the Minister of State for the Ministry of Justice at the time, speak at the launch event. He congratulated Unlock on “achieving what some previously considered impossible”.

It’s been going for over 8 years now, and over 200,000 people have used the calculator in the last 4 years alone. Roughly 55% of users find that all their convictions are spent, with about 40% getting results with some unspent convictions. Perhaps most notably, about 5% of users get a result that means their conviction will remain unspent for the rest of their life.

The calculator itself has been through several phases of development – initially, you had to ‘login’ to use the tool, but we soon realised this was a barrier to use and once we removed this, the number of uses increased significantly. For a long time we also had a way for organisations to set up ‘multiple use’ accounts, because we know many organisations (like probation service providers and employment support organisations) find the tool an important way for their teams to support individuals in working out what they do and don’t need to disclose. This was also an important way for Unlock to cover the costs of maintaining the tool. We also put a lot of time into adjusting the tool in early 2014 so that it was in line with the positive reforms that were made as to when convictions became spent, which came into effect on the 10th March 2014.

We’re pleased that the tool is now fully open to anyone to use. We know that a huge range of organisations – employers, insurers, universities – use the tool, and we know from the feedback that people with criminal records (who remain by far the biggest user group) value being able to use a tool that’s hosted by an independent charity.

We’d never have developed the tool if one like it had already existed, and ever since we launched the tool, we’ve constantly tried to push the government to do more to make sure that people can understand if and when their convictions become spent. We’ve always thought that, while there’s many benefits to an independent charity like Unlock having a tool like this, it’s also important that the government did more to help people with this.

In 2017, the Justice Committee published a report on their inquiry into the disclosure of youth criminal records, which Unlock had been heavily involved in. In the government’s response to this, there was a commitment to “updating guidance for ex-offenders on gov.uk to ensure that it is clear, consistent and easily accessible.”

So we’re pleased that the Ministry of Justice has been developing a tool to help people understand whether they need to disclose their criminal record. They are now seeking feedback on a ‘disclosure checker’, which they’re currently piloting. As it stands, the disclosure checker is far from the finished product – for example, it can only calculate single convictions at the moment and doesn’t cover motoring offences – but we’ve been contributing to its development from an early phase, and we’re continuing to support it so that it can be as effective as possible.

As with using our calculator, it’s important that practitioners, especially those tasked with helping individuals with disclosing criminal records don’t simply use tools like this as a replacement for providing specific information and advice – for example, probation providers have it in their contract to provide one-to-one support on this. So it’s important that practitioners continue to develop the skills and knowledge to be able to sit down and support individuals so that they understand the Rehabilitation of Offenders Act and what it means to them.

There’s also an important question as to what extent a calculator is the right solution. The law is complex, and any calculator is only as good as the information put into it. Unlock doesn’t have access to police records so that was the only way it could run for us, but for the government, who can check police records, there’s an argument that there’s a better approach. Rather than having people work through a tool that relies on the information they put into it, instead the government could simply issue some form of free criminal record check which showed any current unspent convictions (like the current basic DBS check) but then also gave dates for when those convictions will become spent. This would overcome many of the issues that come with an online tool.

Looking back on our calculator, charities like Unlock innovate in spaces like this, but we also recognise our aim – we want as many people as possible to get instant results online to the question “when does my criminal record become spent”. It’s perhaps disappointing that it’s taken the government nearly a decade to get around to doing this themselves, and perhaps there’s a better way for the government to help people find out the answer to this important question. We’ll continue to work the government to try to improve people’s understanding on if and when their criminal record is spent.

More information

  1. We have posted on our hub about the MoJ’s disclosure checker and then at the end there’s an option to provide feedback.
  2. You can use our calculator at disclosurecalculator.org.uk

Rights groups condemn government’s failure to fix broken DBS system

  • Supreme Court ruled one year ago that disclosure and barring service rules breach rights
  • DBS system continues to unlawfully breach rights of people with multiple minor convictions and childhood cautions.

A year after the UK’s highest court found current rules on criminal records checks breach human rights laws, Unlock, Liberty and Just for Kids Law have denounced the Government for failing to fix this broken system.

On 30 January 2019, the Supreme Court directed the Government to fix the broken Disclosure and Barring Service (DBS) system. Four claimants had challenged the blunt and punitive rules, that require them to disclose multiple offences, no matter how historic or minor, and to disclose cautions received in childhood.

The Court, agreeing with two lower courts whose judgments the Government had challenged, said the Government needed to fix the rules to allow people to move on from past mistakes.

A year later, the Government has done nothing, and this injustice continues.

Christopher Stacey, Co-director of Unlock, said:

“Thousands of people with old and minor criminal records have had their cautions or convictions disclosed in the last year because of the government’s delay to reform the system. Unlock intervened in the Supreme Court case because we know people are unnecessarily anchored to their past due to an arbitrary regime which forces the disclosure of irrelevant information. We strongly urge the government to put an end to this unfair lifelong sentence by immediately mending the broken filtering rules alongside committing to carrying out a root and branch review of the criminal record disclosure regime. It’s time for a fresh start for the criminal records system.”

Sam Grant, Policy and Campaigns Manager at Liberty, said:

“It is a disgrace that after years of failed wrangling in the courts, the Government continues to drag its feet and refuses to fix a clearly broken system. A blunt bureaucratic system continues to subject people to unfair treatment for mistakes they made long ago. If you make a few mistakes, you should be able to move on without it tarnishing you for the rest of your life. The Government must finally put this right.”

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

“There is no excuse for the delay in implementing the landmark judgement. Every year about 25,000 youth cautions are disclosed in criminal record checks, most of which are for incidents that happened over 5 years ago. All these people are being unlawfully stigmatised by the government dragging its feet and failing to change the law. It must now act immediately to ensure no child who is given a caution ends up with a lifelong criminal record that robs them of the chance to be fully rehabilitated.”

“P” and “G”

Liberty’s client, known only as “P”, committed two minor offences in 1999 – stealing a 99p book, then missing her hearing at a Magistrate’s Court. She had an undiagnosed mental illness. P has committed no crime since these convictions. She aspires to be a teaching assistant, to make the most of her previous teaching experience.

Under current Disclosure and Barring Service (DBS) rules, P is required to disclose her convictions when applying for jobs and voluntary positions. This leads to conversations about her medical history, and she has been frustrated in her attempts to work.

Just for Kids Law’s client, known as “G” received two reprimands when he was 13 years old. These reprimands appear on standard and enhanced DBS checks until he is 100 years old. The Supreme Court found that disclosing such reprimands to employers is directly contradictory to their purpose. Just for Kids Law argued that reprimands (now called youth cautions) are designed as a rehabilitative measure, and not a punishment for life.

Unlock, which campaigns on behalf of people with criminal records, intervened in the case.

Unlock estimates that between 2007 and 2017, over 1.7 million people received a minor conviction that was not their first offence. All of these will now be spent but will still appear on DBS checks.

Going by records from previous years, Unlock estimates that around 25,000 standard or enhanced DBS checks will have resulted in the disclosure of cautions received in childhood since the Supreme Court ruled this to be unlawful.

Earlier this month, Unlock and Transform Justice launched the #FairChecks movement. People make mistakes, particularly when young. A criminal record should not hold people back from fulfilling their potential. Join the movement if you think we need a fresh start for the criminal records system.

Notes

  • Unlock’s response to the judgment on 30th January 2019, including case studies and a background to the case, is available here.
  • More information about our policy work on the DBS filtering system is available here
  • Unlock is an independent 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.
  • Liberty challenges injustice, defends freedom and campaigns for everyone in the UK to be treated fairly, with dignity and respect. We’re an independent membership organisation, and our principles are guided by evidence and expertise – not political agenda, profit or popular opinion. We use our voice in courtrooms, in the news, on the streets and in politics to demand and deliver lasting change to benefit the many and most vulnerable. Since 1934 we’ve inspired and empowered people to defend their rights, and the rights of their family, friends and communities. Join us. Stand up to power.
  • Just for Kids Law is a UK charity that works with and for children and young people to hold those with power to account and fight for wider reform by providing legal representation and advice, direct advocacy and support, and campaigning to ensure children and young people in the UK have their legal rights and entitlements respected and promoted and their voices heard and valued.

Blog – Join the #FairChecks movement to help get a fresh start for the criminal records system

In the 1960s, when Richard was 16, he was found in possession of a small amount of cannabis. He was prosecuted for possession and given a one-year conditional discharge. As a student a few years later, Richard got into trouble again and was convicted of taking an item of food from a warehouse where he worked stacking shelves. He was given a one-year conditional discharge and put the mistake behind him.

After fifty years of good behaviour, a productive career and many positions of responsibility, Richard believed his record was clear. He was approaching seventy when his son wanted to join a choir and as a dad, Richard needed an enhanced DBS check. He suddenly discovered that the police were still listing his youthful mistakes as criminal convictions. Richard feels he is being punished for things that happened decades ago.

“When you look at this record, it looks dreadful. But I was never really the drug taking thief that it suggests – I was a young person who made a couple of silly mistakes. But it’s harder than you would ever believe to correct the impression this record creates, even though no-one apart from me knows or should care about what happened over forty years ago.”

Because of this “new” old record, Richard had to go through the shame and embarrassment of disclosing a criminal record that was older than some of the panel considering his case. He feels unable to apply for third sector work he would like to do. He believes he is being prevented from contributing to society in a way the justice system never intended.

“I thought that conditional discharges were invented to help people get back on track – but since the invention of the CRB/DBS, people like me are shackled with old records they cannot get deleted. This creates a problem that never goes away. We have lost faith in the capacity of people to learn from their mistakes and to change for the better.”

Around one in six people in England & Wales have a criminal record. Whether it resulted in a prison sentence or a fine, a criminal record can be disclosed on a standard or enhanced criminal record check for the rest of their life. Even a minor criminal history produces lifelong barriers that can block reintegration and participation in society. The vast majority of people won’t have been to prison, and many don’t even realise they still have a criminal record until they apply for a new job or volunteer role that involves a standard or enhanced criminal record check.

People like Richard must declare their convictions if they want to be a traffic warden or taxi driver aged 50.  A person can change quickly, particularly when they are young, but their criminal record remains.

Our current criminal records disclosure regime prevents people from achieving their full potential. It can be particularly crippling for employment, with 75% of employers discriminating against applicants because of a criminal record, and 50% of employers saying they would not recruit offenders or ex-offenders. The stigma attached means that if a conviction or caution is revealed, people often don’t get the chance to explain how they have turned their life around.

An increasing number of employers require DBS checks, and we know that many convictions and cautions that are revealed on these checks can be from many years, sometimes decades, ago. For example, research published by Unlock in 2018 showed that in the previous 5 years, over 1 million criminal records that related to offences from more than 30 years ago (when the person involved was between the ages of 10-25) were disclosed on standard or enhanced criminal record checks.

This happens without any good evidence that shows disclosing criminal records makes society safer. What the evidence does show is that time-passed is a key indicator – research from the US academic Karl Hanson shows that after 10 years offence-free (5 years for children), the risk presented by most individuals with a criminal record is not meaningfully different from that of the general population This begs the question why so many convictions from so many years ago keep on being disclosed on DBS checks.

In January 2019, the Supreme Court gave its judgment in an important case that Unlock intervened in. The case focused on the rules that determine what gets disclosed on standard and enhanced DBS checks. The Supreme Court ruled that two aspects of the rules are disproportionate and in breach of Article 8 of the European Convention on Human Rights. The government has yet to properly respond to this ruling.

The inclusion of old and minor offences on DBS checks carried out for employment and volunteering opportunities remains the single biggest issue that people contact Unlock about. This ultimately comes down to the rules (known as ‘filtering’ rules) that determine what gets revealed and what comes off a standard or enhanced check. Working to change the rules has been one of our priority areas for a number of years.

That’s why, together with Transform Justice, Unlock has set up the #FairChecks movement. The #FairChecks movement has been launched to advocate for reform of our outdated criminal records regime. We would like the government to reduce the length of time a record is revealed and remove out of date information from DBS checks. And we are asking MPs to get the government to work out how to do this by launching a major review of the legislation on the disclosure of criminal records. If you are interested in reforming the criminal records system so that everybody can fulfil their potential, visit fairchecks.org.uk where you can join the movement and write to your local MP.

Launch of #FairChecks – A fresh start for the criminal records system

Together with the charity Transform Justice, Unlock has launched the #FairChecks movement to help push for a fresh start for the criminal records system.

Our outdated criminal records regime is holding hundreds of thousands of people back from participating fully in society. Even a minor criminal history can produce lifelong barriers to employment, volunteering, housing and even travelling abroad, many years after people have moved on from their past. The system needs to change.

The #FairChecks movement is calling for the government to launch a major review of the legislation on the disclosure of criminal records to reduce the length of time a record is revealed.

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

“People who have made mistakes in the past find themselves locked out of jobs and opportunities, unable to fully contribute to society or to achieve their potential because of a criminal record that is effectively a life sentence. Helping people to secure employment, support their families and contribute to the economy is one of the best ways of making communities safer. Yet the law as it stands means people are forced to reveal criminal records to employers and others for many years – sometimes for the rest of their lives.

“Unlock is delighted to be partnering with Transform Justice to launch the #FairChecks movement to help push for a major review of the legislation on the disclosure of criminal records. Everyone should have the opportunity to unleash their potential and make a positive contribution to society. Everyone should have the opportunity of a fresh start. The #FairChecks site is a crucial way for people to show their MP that they support reform of the criminal record disclosure system.”

Penelope Gibbs, director of Transform Justice, said:

“People want to move on from their past but our criminal records disclosure system is a barrier. Transform Justice is pleased to be partnering with Unlock to launch a movement for reform of the system. We know that everybody who has been in trouble with the law should have the opportunity of a fresh start”

How can you help?

Use the #FairChecks site to get the support of your local MP.
Because it is the government that has to make changes to the law, we need the support of MPs. You can help by getting the support of your local MP. The first step is to use the #FairChecks website to send them a letter letting them know that a fair criminal records system is important to you.

Share the #FairChecks site on social media.
Please tweet a link to the site using the hashtag #FairChecks, share it on Facebook and LinkedIn and highlight it with your networks, directing people to the website www.fairchecks.org.uk.

Support it as an organisation.
Alongside encouraging individuals to use #FairChecks to write to their MP, we are keen for organisations to be part of this too. We want to encourage organisations to show their public support for #FairChecks through Twitter, other social media and blogs, and please do get in touch with us if your organisation is interested in showing its support in other ways.

 

For more information about #FairChecks, visit unlock.devchd.com/fairchecks

Our priorities for government in 2020 – A fresh start for criminal records

We’ve published our priorities for government in 2020. We are calling on the government to commit to five priorities to bring about a fresh start for law-abiding people with criminal records.

For 20 years Unlock has, as an independent charity, provided a voice and support for people who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence. We believe in a society where people can thrive and are not held back by their past. This means a fair and inclusive society that removes unnecessary barriers and supports the reintegration of law-abiding people with a criminal record. Government has an important role to play in finding solutions so that no one is left behind.

We need a fair justice system – one that gives a second chance to people who have served their time and want to make a fresh start. Helping people with convictions to secure employment, support their families and contribute to the economy is one of the best ways of making communities safer. Yet the law as it stands means people are forced to disclose convictions to employers and others for many years – sometimes for the rest of their lives. While in some cases this will be necessary to protect the public, the current approach does little to make our country safer. Instead people are locked out of jobs and opportunities, unable to contribute to society or to achieve their potential because of a criminal record that is effectively a life sentence.

There are over 11 million people with a criminal record and every year we hear from thousands of people held back unnecessarily – locked out of employment, refused home insurance, excluded from higher education and professional membership.

But 2020 can be one of opportunity: to radically rethink the people who have turned their backs on crime can and should have the opportunity to unleash their potential and make a positive contribution to society.

That’s why we’ve published our priorities for government in 2020. We are calling on the government to commit to five priorities to bring about a fresh start for law-abiding people with criminal records:

  1. Enable a fresh start – Conduct a root and branch review of the criminal record disclosure regime
  2. Ensure a fresh start – Mend the broken DBS filtering rules
  3. Encourage a fresh start – Develop a legislative footing for ‘ban the box’
  4. Energise a fresh start – Incentivise employers to recruit people with convictions
  5. Embed a fresh start – Protect people from post-sentence discrimination

You can find out more about our priorities for government and download a detailed version of our priorities here.

Unlock comment: Ministry of Justice plans on criminal record reform

Commenting on today’s announcement (15 July) by the Ministry of Justice on plans to make changes to the Rehabilitation of Offenders Act 1974, Christopher Stacey, co-director of Unlock, said:

“Unlock very much welcomes and supports today’s announcement by the Justice Secretary. If his commitment proceeds to statute, it will mean more people with criminal records being able to get jobs and make a positive contribution to society. The current criminal records disclosure regime does little to promote rehabilitation or serve public protection, but it does result in people being locked out of jobs and opportunities, often for the rest of their life, because of a criminal record that serves as a second sentence.

“England and Wales has one of the most punitive criminal record disclosure regimes in Europe – and there’s no evidence that it’s reducing crime. Getting people with convictions into work, supporting their families and contributing to the economy is one of the best ways of making communities safer. Evidence shows that more than half of men, and three quarters of women who receive a conviction, will never be convicted again. That is why we have long campaigned for a system that enables all convictions to become ‘spent’ at some point.

“This would enable more people that have received prison sentences of over 4 years to reach the stage, after a period of living crime-free, where their criminal record becomes ‘spent’, and for many others enable their conviction to become spent much sooner than at present, within a proportionate, evidence informed timeframe. This means they will no longer be required to unnecessarily disclose it for most jobs or education courses, nor for housing or insurance.

“However, there is little point in having more people reach this stage if employers can continue to discriminate. There are fundamental questions as to how effective the legislation is in a society where information remains online and employers regularly ask about spent convictions even if they are not entitled to know about them. The government needs to make sure that the legislation does what it is intended to do – give people a chance to live free of the stigma of their past. We urge the government to use this opportunity to do that work, and we look forward to working with them so that law-abiding people with convictions have a real chance to move on positively with their lives without their criminal record hanging over them.”

Notes

  1. We understand that the plans are focused on the Ministry of Justice making changes to Rehabilitation of Offenders Act 1974, which sets out the time periods for which criminal records become ‘spent’, at which point they are not disclosed on basic criminal record checks. It is important to note that once convictions become spent, they are not wiped from police records, and they remain available for disclosure when applying for work in certain roles such as becoming a solicitor (which involves a standard DBS check) or roles involving children or vulnerable groups (which involve an enhanced DBS checks).
  2. Find out more about our policy work on reform of the Rehabilitation of Offenders Act 1974.
  3. The government is yet to respond to the Supreme Court judgment from January of this year. That ruling is focused on the rules that determine what is disclosed (or filtered) from standard and enhanced criminal record checks.

 

New report highlights ‘double discrimination’ faced by black, Asian and minority ethnic people with a criminal record

Unlock, the country’s leading charity for people with convictions, has today published research on the impact of criminal records as perceived by people from Black, Asian and Minority Ethnic (BAME) backgrounds.

New data in the report, Double discrimination?, shows that over three-quarters of people surveyed (78%) felt their ethnicity made it harder for them to overcome the problems they faced as a result of having a criminal record. The overwhelming majority (79%) experienced problems gaining employment; these persisted over many years and affected all age groups. African and Caribbean people were most affected.

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

“The discrimination faced by people with a criminal record who are from a black, Asian or minority ethnic background may not be ‘double’, but the difficulties they face are certainly cumulative. The perceptions of many people we surveyed were that the criminal record disclosure rules caused them more problems because, had they been white, they may not have been prosecuted, or the sentence they received would have been lower and therefore ‘spent’ earlier.

“These perceptions are borne out by other evidence that shows how the criminal justice system disproportionately impacts on people from some BAME groups because of over-criminalisation and harsher treatment. Put simply, ethnicity impacts on the type of criminal record someone gets. The disclosure regime exacerbates problems faced by people already treated more harshly at all stages in the criminal justice system.

“Black and Asian defendants have consistently been given the longest average custodial sentence length since 2012. Harsher sentences take longer to become spent under the Rehabilitation of Offenders Act 1974, if they ever do, meaning a criminal record will cause more difficulties for longer. This is an additional penalty for Black and Asian defendants. What David Lammy refers to as the double penalty can in fact be a triple penalty – the ethnic penalty, the criminal penalty and then the disclosure penalty.

“Ethnicity is often a visible characteristic to employers, but a criminal record is not. This means that, while tackling ethnicity-based discrimination requires a certain set of responses, tackling conviction-based discrimination needs a different set of responses. For example, minimising, or delaying, the use of criminal records, may benefit BAME groups in particular but would result in a much fairer system for everyone. The Lammy recommendations to address ethnic disproportionality must continue, but in the meantime simple changes to the disclosure regime can help level the playing field.

“We urge the government to take forward our recommendations, including to carry out a fundamental review of the criminal records regime and to implement reform the Rehabilitation of Offenders Act 1974, including reducing the time before convictions become spent and expanding the scope of legislation so that all convictions can become spent.”

In the foreword to the report, David Lammy, MP for Tottenham and chair of the Lammy Review, writes:

“Those who experience our criminal justice system, above all, need a different future to aspire to, but our criminal records regime is holding them back. Employers, universities, housing providers and even insurers, can and do discriminate against those who disclose this information. This is an issue for all people with a criminal record whatever their ethnic background. However, this report by Unlock demonstrates that our criminal records system disproportionately discriminates against those from Black, Asian and minority ethnic backgrounds. Already facing discrimination when applying for employment, the barriers that BAME individuals face are solidified and compounded by our arcane criminal record process. This report shines a light on BAME individuals’ experiences of post-conviction problems – tied to the past and facing multiple disadvantage. I continue to urge the government to reflect hard on the impact of a criminal records regime that traps people in unemployment, contributes to high rates of recidivism and creates a double penalty for minorities. It’s time for urgent reform.”

Iqbal Wahhab OBE, chair of EQUAL, which focuses on action for race equality in the criminal justice system, said:

“When people of  BAME backgrounds make up 26% of the prison population yet 14% of the wider population, when young black men can be twice as likely to be unemployed than the rest of the population, when people of BAME backgrounds are significantly more likely to receive custodial sentences than their white counterparts and when every level of ethnic disproportionality in the criminal and legal justice system has risen since the Lammy report, we are facing a huge challenge to any claim that we live in a fair society. The problems are only getting bigger. The recommendations in Unlock’s report are essential steps that need to be taken to reverse these troubling trends. We keep hearing that companies with more diverse workforces perform better than those that haven’t. Employers need to be brought into these conversations more to become part of the solution whilst enhancing the performance of their own organisations as well as that of wider society at the same time.

“The ethnic penalty in employment is well documented and we welcome the evidence in Unlock’s report which shows the biggest challenge for BAME individuals post-conviction is securing employment. The government needs to do more to help BAME people overcome ethnic and conviction bias in the labour market. EQUAL supports Unlock’s call for the government to conduct a fundamental review of the wider criminal records disclosure regime.”

Sara Llewellin, CEO of the Barrow Cadbury Trust, said:

“The Barrow Cadbury Trust is proud to support the work of Unlock. This report into the experiences of black, Asian and minority ethnic people living with criminal records is eye-opening. David Lammy MP in his 2017 review on racial disproportionality called for changes to our criminal records regime. The data and personal testimony in this report lend more weight to that long-running debate on what those changes would look like, and the urgent need to reform the disclosure system to enable individuals to access education and employment opportunities.”

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 full report is available here. An executive summary is available here.
  6. Black and Asian defendants have consistently had the longest average custodial sentence length since 2012. As set out on page 58 of the Ministry of Justice (2016) Statistics on Race and the Criminal Justice System 2016.

Comments from survey respondents

An Indian man, now aged 36-45. He was convicted 10 years ago for 6 counts of theft and given a community sentence. He said: “There is already conscious and unconscious bias in the workplace, it’s a widely reported phenomenon. The combination of the conviction has made it worse. In the NHS where I work bullying and discrimination are rife, and made that much worse due to my ethnicity.”

An African man, aged 56-65. He got two convictions 40 years ago for shoplifting and fined for both. He said: “My experience is that BAME people are more heavily policed and (at least in the past) are put under pressure to admit to offences whether they committed them or not. Also, a bigger proportion of BAME people are socially disadvantaged. That means there is a higher risk of delinquency and convictions as children. I have been plagued by the fact that my convictions will never be spent as far as Civil Service vetting is concerned. I really don’t think a shoplifting conviction from the 1970s as a child should have remained on my record when I became an adult and started my career. They also led to me being refused visas for the USA and stopped me getting a second nationality (of my wife).”

An Indian woman, aged 46-55. She received one conviction 4 years ago for benefit fraud and sentenced to prison. She said: “The Indian community turned their back on me and I feel isolated. My house insurance was terminated. The cost of car and new house insurance increased. A loss of self-esteem stops me from applying for jobs. I don’t know where to find jobs which do not require a DBS. I can’t pass credit checks for private rented sector housing. People from the community avoid me so I am isolated and suffer from serious mental health issues. I live in poverty and risk of homelessness. I’ve had serious health issues linked to stress.”

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

The 28th 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.

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. 

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