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For people with criminal records

Category: State use of criminal records

Landmark Court of Appeal ruling – Government loses appeal against DBS filtering regime

Press release: 3rd May 2017

Ruling gives hope to thousands of people trying to put their past behind them

The Court of Appeal has today rejected the Government’s appeal to a decision of the High Court in January last year, which ruled that the criminal records disclosure scheme was disproportionate and unlawful.

The judgment, handed down today, involves a number of cases that were heard in the Court of Appeal in February this year, including cases brought by Liberty and Hodge, Jones & Allen, supported by Just for Kids Law.

The court ruled that the disclosure scheme has insufficient safeguards to be lawful, and that the scheme is disproportionate. In one case, a man was convicted in the 1980’s of ABH when he was 16-years-old and received a conditional discharge. The President of the Queen’s Bench Division, Sir Brian Leveson, said in his judgment:

“It is difficult to see how publication of this detail, 31 years on, is relevant to the risk of the public, or proportionate and necessary in a democratic society.”

Christopher Stacey, Co-director of Unlock, a leading charity for people with convictions that supported the legal challenge and who attended the hearing in the Court of Appeal, said:

“Thousands of people contact us every year because they are being unnecessarily anchored to their past as a result of a criminal record disclosure system and DBS filtering process which is blunt, restrictive and disproportionate.

 

“We’re delighted with the Court of Appeal’s ruling in this important case, which stands to affect many thousands of people with old or minor criminal records. Over 240,000 DBS checks every year disclose convictions or cautions. Since the filtering scheme was introduced in 2013, it’s helped some people with old and minor records to be free of the stigma and discrimination that so many face when they have something they have to disclose to an employer. However, the current system doesn’t go far enough. It operates with inflexible rules meaning that, for example, someone with more than one conviction on their record will have to disclose all of their convictions indefinitely, regardless of the nature or circumstances of the conviction or the length of time that has since passed. The system acts as an additional sentence that often runs for life. It desperately needs reform. These shortcomings have today been recognised by the Court of Appeal.

 

“We strongly urge the next government to take immediate steps to respond to today’s ruling by reforming our criminal records system. A fairer and more flexible system would be one with expanded automatic filtering rules and a discretionary filtering process with a review mechanism so that individual circumstances can be considered. This would enable those with old and minor convictions to move on positively with their lives and to more easily gain employment. It is common sense that, while certain offences need to be disclosed to employers, we should not be unnecessarily blighting the lives of people who are trying to get on in life by disclosing old, minor and irrelevant information that holds them back and stops them from reaching their potential. We are committed to continuing our work with government, the DBS, employers and other key stakeholders to drive forward these much needed reforms.”

Debaleena Dasgupta, Legal Officer at Liberty and solicitor for P, said:

“This important ruling gives hope to huge numbers of people whose ambitions have been dashed because of minor mistakes they made in the past.

 

“The Government must urgently fix this broken system that needlessly prevents people from rebuilding their lives and contributing to society. We look forward to seeing a fairer scheme which has the capacity to consider individual circumstances where appropriate.”

 

Notes

  1. Unlock has made a number of recommendations for reform to the DBS filtering system. These are available here.
  2. The judgement is available online.
  3. This judgement does not have any immediate impact on the current DBS filtering scheme.
  4. We have practical self-help information on how the current filtering system works on our information hub.
  5. Find out more information about our policy work on the DBS filtering process here.
  6. Summaries of the facts of the cases involved in the legal challenge are explained here.
  7. The current system is explained below:

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

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

Watch our oral evidence to the Justice Committee inquiry into the disclosure of youth criminal records

Earlier today co-director, Christopher Stacey, gave evidence to the Justice Committee’s inquiry into the disclosure of youth criminal records.

You can watch the session here or below.

 

More information

  1. Posts about our work on youth criminal records can be found here.
  2. The specific details of the inquiry are here
  3. There are more general details about the work of the Justice Committee here

Unlock responds to Law Commission review of DBS filtering system – “is a damning indictment….a wider review is needed now more than ever”

In a detailed report published today, the Law Commission has recommended a wider review of the criminal record disclosure system.

In the most comprehensive operational assessment of the DBS filtering process to date, their conclusion is that:

“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.”

Their review had a specific focus on the current ‘list of offences that cannot be filtered’. On that, the report states:

“…the choice of offences in the list appears to lack coherence and a clear basis”

Because of the limited scope of the project, the report states that:

“We do not make recommendations about whether any particular offences should be added or removed from the list”

In examining the operational list, the Law Commission identified the following specific practical and operational problems:

  1. possible inaccuracy of the operational list;
  2. likely inefficiency in the system of offence codes;
  3. risk of unnecessary or inadequate disclosure;
  4. risk of the need for constant updating of the list not being met; and
  5. a lack of guidance for those answering exempted questions.

The report goes on to state that:

“Any recommendations that we made regarding the non-filterable list would clarify the contents of that list and make it more accessible for users of DBS, but more deep-seated confusion regarding the operation of the Rehabilitation of Offenders Act 1974 and the exempted questions would remain. In Chapter 5 we discuss possible topics for a wider project addressing both the criminal records disclosure system and the rehabilitation of offenders scheme.”

Responding to the report, Christopher Stacey, Co-director of Unlock, said:

“Today’s report is a damning indictment of the current DBS filtering system and reinforces the concerns we’ve raised since it was first introduced in 2013. We are pleased that the Law Commission has listened to the criticisms that we and others put forward on the broader operation of the current system. Their recommendation for a wider review is needed now more than ever. The current system doesn’t go far enough: it is blunt, restrictive and disproportionate.

 

“These shortcomings were recognised by the High Court in January 2016, and we urge the government to withdraw their appeal and instead get to work in undertaking this wider review and finally establishing a proportionate disclosure system that is transparent, clear and fair. This will not only benefit those with old and minor cautions and convictions to move on positively with their lives, but it will also contribute towards building a fairer and more inclusive society”

 

Useful links

  1. You can find out more about the project the Law Commission carried out, including a copy of the report, on their website.
  2. There are details about our policy work on the DBS filtering system.

Second Reading in House of Lords for Bill to amend Rehabilitation of Offenders Act 1974

Lord Ramsbotham’s Private Members’ Bill on amending the Rehabilitation of Offenders Act 1974 has today had its Second Reading in the House of Lords.

The Bill, which would shorten the rehabilitation periods that apply under the Rehabilitation of Offenders Act 1974 (ROA), proposes a number of changes. One of the most significant elements is that sentences of over 4 years in prison would become spent 4 years after the end of the full sentence.

You can read the debate or watch online (from 12:55).

Despite widespread support in the House, the Government responding by saying that they “do not consider that the proposals in the Bill are appropriate”.

Private Members’ Bills are rarely successful without support from Government.

The Bill will now move to Committee stage.

In closing the debate, Lord Ramsbotham said:

“I have to say that I am extremely disappointed by the Minister’s response. When I represented the Bill as having been in close contact with a number of organisations—particularly Unlock, of which I am president, which is the national association of ex-offenders and therefore in touch with the difficulties that they are experiencing day after day—they did not put their concerns about the Bill lightly.”

 

“What I am suggesting is that in the context of the White Paper, it would be sensible for the Government to look at all aspects of resettlement, including this one. My offer to the Minister is that all those who have raised problems on the outside are more than willing to take part in that process.”

 

“I intend to table amendments in Committee. In the interim, I hope that the Minister will reconsider his rejection of what is on offer, because the issue is far too serious to be let go with the prospect of annual Bills and annual making progress on small points.”

 

Extracts from the debate

Lord Ramsbotham

“I believe that it should be that no one released from prison should face a lifetime of disclosure, without the prospect of review”

 

“The 48-month spent limit should be removed, with determinate sentences of over four years becoming spent four years from the end of the sentence, as proposed by the Government in their 2003 response to Breaking the Circle. Those serving an indeterminate sentence should be given the opportunity to achieve rehabilitated status through a process of evidence submission to a criminal records tribunal administered by members of the judiciary. As an incentive to desist from crime, anyone recalled to prison would automatically have their disclosure period reset.”

 

“The Government should establish an effective system for identifying and stopping ineligible checks, which too many of the 4 million checks each year currently are.

 

“Any rehabilitation programme worth its salt should include a disclosure scheme devised specifically to assist the employment process. The ineffectiveness of the existing Act has been compounded by the many changes since 1974, including sentence inflation, that have shifted the way in which offenders are treated by the criminal justice system in both sentencing and rehabilitation, rendering it unfit for purpose.”

 

Lord McNally

“One of the things I am most proud of is Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Unlock described it as positive but not perfect, and of course that is perfectly true. The fact is, though, that the reforms were as much as we could get our coalition partners to agree to.”

 

“The Taylor review is clear that we should develop a distinct approach to treating childhood offending. “Children first, offenders second”, is the mantra that Charlie Taylor advocated.”

 

“There is a strong case for following the logic of the Taylor report and the Government accepting the Carlile recommendation for the expungement of criminal records at attaining the age of 18, excluding homicide, serial sexual offences and other violent crime.”

 

Lord Carlile of Berriew

“If I have a slightly adverse comment about the Bill it is that, for my taste, it goes nothing like far enough. I do not believe that there is any really convincing evidence that using criminal records to prevent people obtaining perfectly ordinary jobs after a conviction that comes somewhere in the middle of the criminal calendar does anything other than send them back to prison. My view is that we should be very radical about these matters.”

 

“The Bill makes proportionate provisions that would make a significant, if not complete, contribution to people whose lives have started badly but whose potential can be unlocked.”

 

The Earl of Listowel

“The Bill is timely, at a time when the Prime Minister has recognised that so many people and families in this country have been left behind.”

 

Lord Dholakia

“More than 7,000 people a year are given sentences of over four years. At present they can never be rehabilitated for the purposes of the Act, however much they do to change their ways and over however long a period.”

 

“Unfair discrimination against ex-offenders is wrong in principle, because it imposes an additional illegitimate penalty of refusal of employment on people who have already served the judicially ordered punishment for their crime. It also reduces public safety, because an ex-offender’s risk of reoffending is reduced by between a third and a half if he or she gets and keeps a job.”

 

Lord Berkeley of Knighton

“Hope can be achieved in a number of ways, but certainly the ability to feel that a debt to society has been paid, to wipe clean a slate and to be rewarded by having an offence and sentence regarded as spent is a vital part of rehabilitation, especially in the young, whose youthful indiscretions might otherwise permanently blight adulthood.”

 

Baroness Bakewell of Hardington Mandeville

“The existing Rehabilitation of Offenders Act provides no opportunity for an ex-offender’s sentence to be spent if a custodial sentence of four years or more is imposed. Although it is widely accepted that custodial sentences are reserved for more serious crimes, it must be said that many offenders in this category are left with little option when any hope of gaining employment is taken away from them.”

 

“Experience shows that the existing Act will not prevent the dishonest from lying to gain employment. However, it impedes the progress of those who could otherwise lead progressive and law-abiding lives, contributing to the economy through gainful employment.”

 

“We must also recognise that the entire notion of modern, balanced, restorative justice is built on the belief that an individual has the capacity to rehabilitate, to learn to make positive life choices and to become a productive, contributing member of society.”

 

“That Act is now completely inconsistent with contemporary sentencing practice. The result is that, far from allowing reformed individuals the second chance that is promised in the Act, its shortcomings leave many excluded from any prospect of rehabilitation and meaningful employment after they have completed their sentences.”

 

“For those serving sentences of over four years, convictions can never be spent. Individuals are therefore forced to live with the shadow of their convictions, through a lifetime of disclosure and without the prospect of review.”

 

The Advocate-General for Scotland (Lord Keen of Elie)

“The noble Lord’s Bill seeks to allow determinate custodial sentences of any length to become spent. I recognise that he would like the current legislation to go further by enabling determinate custodial sentences of any length to become spent, but the Government consider that the present amendments to the Act that came into force in 2014 achieve the correct balance between rehabilitation of offenders and public protection. This is a two-sided coin and these issues have to be balanced. We do not feel there is a case for the law to go further at this stage.”

 

“The Government understand the noble Lord’s concerns and we are, of course, committed to helping ex-offenders who wish to make a fresh start and put their criminal history behind them. We are desperately anxious to ensure that people do not simply leave the prison gate one day and return another. Despite this, we do not support the noble Lord’s Bill, given the reasons I have already outlined. I note the noble Lord’s views, I understand them and I would welcome the opportunity to engage further with him about how we can increase the support that is available to ex-offenders.”

 

“Since 2016, we have been running a campaign to encourage more businesses to provide training and work opportunities for offenders and ex-offenders. This has been carried out in close collaboration with the Department for Work and Pensions’ See Potential campaign. The present campaign emphasises the general advantage to society of securing employment for ex-offenders and thereby reducing reoffending and unemployment.”

 

Lord Ramsbotham

“I have to say that I am extremely disappointed by the Minister’s response. When I represented the Bill as having been in close contact with a number of organisations—particularly Unlock, of which I am president, which is the national association of ex-offenders and therefore in touch with the difficulties that they are experiencing day after day—they did not put their concerns about the Bill lightly.”

 

“What I am suggesting is that in the context of the White Paper, it would be sensible for the Government to look at all aspects of resettlement, including this one. My offer to the Minister is that all those who have raised problems on the outside are more than willing to take part in that process.”

 

“I intend to table amendments in Committee. In the interim, I hope that the Minister will reconsider his rejection of what is on offer, because the issue is far too serious to be let go with the prospect of annual Bills and annual making progress on small points.”

 

More information

  1. You can follow the progress of the Bill on the Parliament website.
  2. You can find out more information about our work to get further reform to the Rehabilitation of Offenders Act 1974.
  3. There is practical information on how the law currently operates on our information site.

Youth justice review recommends reformed criminal records system for children

“A reformed criminal records system for children”

That’s the recommendation of Charlie Taylor, whose review into youth justice was published today.

In a wide-ranging review, there’s a specific section on criminal records (pages 25 and 26).

 

He proposes that the Ministry of Justice and the Home Office should:

“Develop a distinct approach to how childhood offending is treated by the criminal records system. (Paragraph 85)

This should include:

  • consideration of distinguishing between under-15s and 15-17 year olds in terms of the retention and disclosure implications of offending; (Paragraph 86)

  • further reductions in the periods before which childhood convictions become spent; (Paragraph 87)

  • all childhood offending (with the exception of the most serious offences)

  • becoming non-disclosable after a period of time; (Paragraph 88) and

  • the circumstances in which police intelligence on childhood conduct can be disclosed being further restricted. The Home Office should consider the introduction of a presumption that police intelligence dating from childhood should not be disclosed except in exceptional circumstances. (Paragraph 89)”

 

In its response, the government said:

“We recognise that criminal records in childhood can impact on future life chances. However, there are a number of cases before the courts in relation to disclosure policy as it currently stands. We also look forward to the findings of the current inquiry being carried out by the Justice Select Committee in this area. We intend to work with the Home Office to consider these and the Taylor Review’s recommendations more fully following the Court’s judgement.”

 

Christopher Stacey, Co-director of Unlock,  said:

“We very much welcome the proposals for reform to childhood criminal records that Charlie Taylor has set out in his report. We encourage the government to undertake proactive work in making these recommendations a reality. The ongoing legal cases challenge a narrow aspect of the system and could be settled if the government withdrew its appeal against the January 2016 ruling in the High Court. Regardless of this, there is a pressing need for work to be undertaken in the meantime, ready for when the Court of Appeal makes it judgement in 2017, and we stand ready to work positively with government on this important issue.”

 

Useful links

  1. We submitted evidence to the review in May 2016
  2. The review, alongside the government’s response, can be downloaded from Gov.uk.

 

Our evidence to the Justice Committee inquiry into Youth Criminal Records published

Our written evidence to the Justice Committee’s inquiry into the disclosure of youth criminal records has been published on the Parliament website.

Alongside a number of recommendations, we’ve included five anonymous personal experiences. Next week, we’re taking a small group of people to Westminster to share their personal stories with MP’s on the Committee.

 

The specific details of the inquiry are here

There are more general details about the work of the Justice Committee here

 

Westminster Hall debate about DBS performance

Yesterday there was a Westminster Hall debate, brought by Helen Hayes MP, about the performance of the Disclosure and Barring Service.

In particular, Ms Hayes highlights:

There are harder cases, including my constituent who is an ex-offender and has found it very difficult to find work. In May 2016, he was offered a job that he was keen to take up. He contacted me about the delay in processing his enhanced DBS check. Despite my office contacting the DBS a number of times and receiving assurances on three occasions that the case had been escalated, my constituent is still waiting for his DBS check more than five months later and the rare offer of employment has been withdrawn. When people are doing their very best to do the right thing and to turn a corner in their lives and move on, it cannot be right that the Government are placing an unnecessary barrier in their way.

You can read the debate in full.

Justice Committee inquiry into youth criminal records – have your say!

We’re pleased that, after joint efforts by Unlock and the Standing Committee for Youth Justice (SCYJ), the Justice Committee has launched a short inquiry into the system governing the disclosure of criminal records in relation to offences committed by people when under 18 years old. Given the Committee’s recent inquiry into young adults in the criminal justice system, the Committee also welcomes views on whether the regime governing disclosure of such criminal records should be extended to apply to records of offences committed by older people, for example up to the ages of 21 or 25.

The inquiry is an opportunity to build on the work we’ve been doing with the SCYJ as part of the ‘Growing up, moving on’ campaign, which was launched in April 2016.

It’s also a good opportunity to explain the disproportionate impact that criminal records have on people that obtain them in early adulthood, and to make the case for this to be reflected in the way disclosure laws operate.

In particular, the Committee welcomes written submissions on:

  • The appropriateness and effectiveness of the statutory framework applying to the disclosure to employers and others of criminal records relating to offences committed by people when under 18 years old
  • whether that framework and the way in which it is operated in practice strike an appropriate balance between protection of employers and the public, on the one hand, and the rehabilitation of people committing offences when young, on the other hand
  • the effects in respect of the disclosure of such records of changes made in 2013 to the filtering of offences from criminal records checks and in 2014 to rehabilitation periods.

The deadline is Friday 11th November 2016.

What can you do?

It’s important that as many individuals and organisations put forward their evidence, comments and experiences on the disclosure of youth criminal records. This is the best way to help the Committee to understand the extent of the issue.

In particular, we think it’s extremely important that the inquiry receives evidence from those people with personal experience of having a criminal record from when they were young. For those who find that it continues to hold them back, or created a significant barrier to them moving on, these personal stories can help MP’s on the Committee to understand the problem and identify what needs to change.

We’re in the process of putting together a response, so if you’re planning to submit evidence to the Committee, please let us know and send us copies of the evidence you submit. Email policy@unlock.org.uk.

 

Further information

Details about the Justice Committee inquiry are on the Parliament website.

Details about our policy work on rehabilitation periods.

Details about our policy work on filtering.

Appeal against High Court ruling on disproportionate criminal records disclosure scheme scheduled

Since the High Court ruling in January, which found that the current criminal record disclosure scheme for standard/enhanced checks was disproportionate, lots of people have been asking us what would happen next.

We’re now in a position to say that the Government has appealed against the High Court ruling (which to some extent we expected) – this means that the case will go up to the Court of Appeal. The case is being heard with three other cases that involve the ‘type of offence’ exclusion (which is another area we think needs to change).

The case has been listed to be heard in February 2017 with a judgement expected later in the year.

In the meantime, nothing changes. The current DBS filtering system remains in force. If the outcome of the appeal goes the right way from our perspective, the government would need to look at extending the filtering process.

More information

DBS publish independent review into their barring operations

Last week the Disclosure and Barring Service (DBS) published an independent review that has been conducted into their barring operations.

As part of our fair access to employment project, we acted as a stakeholder and fed in our thoughts to the review team.

Although the review has only just been published, the date on the review is November 2015, which seems to reflect when the review was completed. After that point, the DBS appear to have set about responding to the recommendations.

Of particular interest to us was that it was good to see the review recommend that the DBS consider situations where oral representations (instead of just written ones) could be made by those at risk of being barred. This is something that we featured as an update to our information site back in February of this year.

The review also recognised how the letters and factsheets sent out by the DBS are not as effective as they might be in:

  1. encouraging those at risk of barring to participate in the process and to make representations, or
  2. communicating the outcome in a fashion that is both easy to understand and accurate.

The review recommended a ‘mini-review’ and suggested working closely with those who have experience of would be barrees, such as Unlock. The DBS has since done some of this work and we’ve engaged with them to improve the information and communications with those subject to the barring process.

More information

  1. This post relates to our work to improve the way the DBS works as part of ourfair access to employment project.
  2. There’s practical guidance on barring on our information site.

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