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For people with criminal records

Category: What DBS disclose

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. 

Unlock response to Supreme Court judgment on criminal records disclosure regime

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

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

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

 

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

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

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

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

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

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

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

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

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

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

 

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

Corey Stoughton, Advocacy Director of Liberty, said: 

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

 

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

 

Notes

  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 with 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. More information about our policy work on the DBS filtering system is available here.
  6. 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/
  7. 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
  8. Unlock was represented in these appeals by Salima Budhani and Theodora Middleton, Bindmans LLP, and barristers Caoilfhionn Gallagher QC and Jesse Nicholls, Doughty Street Chambers.
  9. Unlock’s intervention in the Supreme Court can be downloaded at https://unlock.org.uk//wp-content/uploads/misc/1-Gallagher-2-P-G-W-Unlock-Case.pdf
  10. The judgment was handed down on Wednesday 30th January 2019. Press summary here.
  11. Press and media coverage of the judgment can be found here.
  12. Warnings and reprimands are now known as youth cautions.

 

About the cases before the Supreme Court

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

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

 

The current filtering system

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

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

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

 

Support for reform

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

 

Case studies

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

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

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

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

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

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

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

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

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

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

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

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

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

The current criminal record disclosure rules are unnecessarily harsh and disproportionate – they mean that standard and enhanced DBS checks continue to disclose old, minor and irrelevant offences that often happened decades ago. This means people can feel like they are effectively serving a life sentence for minor offences that they committed in their youth.

As part of our work on this, we’ve become aware of Helen’s* story, and we want to see if Helen’s problem is shared by others.

 

 

This is Helen’s story:

“I am a trans woman. I have a Gender Recognition Certificate (GRC), by which I am recognised in law as female, “for all purposes”.

 

“In the late seventies, around 1979 to be precise, I was working at a club in Soho called The Golden Girl Club, also known as a ‘clip joint’, as a means to fund gender reassignment surgery which was not readily available on the NHS at the time. There was little tolerance for LGBT people among police officers working at West End Central who made it their mission to arrest and humiliate trans women. During this time, I was arrested on a couple of occasions for ‘importuning as a man’ – this essentially means ‘offering services as a prostitute’

 

“In 1980, I completed my gender reassignment survey and moved to America where I went back to university and lived there until the late 90s. In 2004, I completed a master’s degree in psychotherapy and counselling and up until 2011, worked in both a corporate environment as a HR professional and a small private practice.  In 2012, I left the corporate world completely and moved my career into the clinical field.

 

“Given the nature of my work, I am required to provide an enhanced DBS certificate that discloses my spent convictions for historical gender specific offences which I am required to disclose under the legislation due to the type of work I do which discloses my birth gender and my trans status.  Because I do not wish my gender history to be more widely known (and do not wish to disclose my trans status to employers), this has prevented me from applying for many roles and has forced me to stay in organisations that haven’t been in my best professional interest.”

(You might have seen that Helen’s story was covered briefly in The Sunday Times, Daily Mail and The Sun last weekend and early this week. Unlock was referenced as supporting her case, and we’ve copied below the comment we provided to the press at the time).

 

Are you transgender? And do you have a gender-specific criminal record that reveals your previous gender? Get in touch!

We want to hear from people who might have experienced similar issues to Helen. This will help us in our work to push for changes.

All information that is submitted to us is handled confidentially. We do not share personal details to any third-parties without the explicit consent of the person concerned. We are used to dealing with individuals who are quite rightly very protective about their personal data.We take our role of protecting confidentiality very seriously. Find out more here about our approach to collecting evidence of issues.

If you’re transgender and have a gender-specific criminal record, please get in touch with us by emailing (in confidence) policy@unlock.org.uk with the following details:

  1. Your name and date of birth
  2. Contact details (telephone or email) and how you would prefer to be contacted
  3. Do you have a Gender Recognition Certificate?
  4. Have you committed a gender-specific offence in the past which is now ‘spent’ (under the Rehabilitation of Offenders Act 1974) but which you have been required to disclose under an enhanced DBS check because of the type of work you do?
  5. What’s the offence?
  6. Was this offence committed by reference to your birth sex, rather than your affirmed sex?
  7. Does your enhanced DBS certificate, therefore, reveal your trans status?

For more details on contacting us, click here.

 

The legal context to Helen’s story

The legal context to Helen’s story has been written by Claire McCann, barrister at Cloisters

Nearly forty years ago, Helen was convicted on two occasions of the offence of ‘man importuning’ under s32 of Sexual Offences Act 1956.  At the time, she was only 18 and 19 years old and, in law, she was male.  She has since acquired legal recognition of her female gender by way of a Gender Recognition Certificate.

A few years ago, Helen applied for a job as a counsellor which required her to obtain an enhanced DBS certificate. This is because she was applying for a specified position of trust which engaged the obligation to obtain an enhanced DBS certificate which, in turn, disclosed all convictions (whether or not spent), unless the spent conviction was protected from disclosure (as a result of the statutory filtering regime which came into force in May 2013).

When the DBS certificate was provided to Helen’s employer, she suffered the humiliation of being asked why male-specific convictions were disclosed on the certificate and she had to explain her gender history. In this way, she was “outed” as trans, something which she had not chosen to disclose to her employer or work colleagues. This experience has discouraged Helen from applying for other work.

The convictions for ‘man opportuning’ cannot be “filtered” or otherwise “disregarded” by the DBS when determining what must be disclosed on her enhanced certificate. This is because the filtering regime created under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 does not apply to specified offences (and s32 of Sexual Offences Act 1956 is such a specified offence).

Helen has asked the DBS to delete or amend the wording of her convictions on her enhanced certificate (for example, if they were described as “importuning” or “soliciting”, this would not reveal her gender history) but has been told that the DBS does not “own” the data held on the Police National Computer which is, in fact, “owned” by the relevant police force.  Helen, therefore, asked the Early Deletion Unit of the relevant police force to delete or amend the wording of her convictions but her request has been refused on the basis that the convictions do not fall to be “filtered” and the information on the PNC is a matter of historical record and so cannot be amended.

Helen is, therefore, stuck with a DBS certificate which will continue to reveal her trans status.  She, therefore, wishes to challenge the legality of the statutory regime because, unless it is amended, she is forced to either remain in her current workplace or to disclose her trans history should she choose to apply for roles elsewhere.  This constitutes a severe and discriminatory interference with Helen’s right to respect for her private life, contrary to Articles 8 and 14 of European Convention on Human Rights.

Unlock is looking for examples of where the DBS “filtering” does not go far enough.  Helen’s is one example but please get in touch if you have suffered a similar experience.

 

Unlock’s position

The comment that our co-director, Christopher Stacey, gave to the Sunday Times is below, and this explains our position on this issue. We hope that by sharing Helen’s story and putting out this call for evidence, any other people that have suffered from a similar situation to Helen will be able to come forward and help us address this problem.

“The current criminal record disclosure rules are unnecessarily harsh and disproportionate – they continue to disclose old, minor and irrelevant offences that often happened decades ago. This means people can feel like they are effectively serving a life sentence for minor offences that they committed in their youth. We are calling for reforms to the system, and we would expect this to include removing certain old, minor and irrelevant gender-specific offences.

 

For more recent and more serious gender-specific offences, there does not seem to be the flexibility within the current system to still disclose the details of the offence whilst protecting the gender status of the individual. For those who have since acquired legal recognition of a different gender, this clearly raises significant issues for the individual concerned as it serves to disclose their gender history, thereby “outing” them as transgender. We would encourage the government to look at what can be done to resolve this issue.”

If you’re transgender and have a gender-specific criminal record that reveals your previous gender, please get in touch (see details above).

 

* Helen is not her real name – it has been changed in this post to protect her identity

Blog – Standing up to the government in the Supreme Court – Some reflections on last month’s landmark criminal record disclosure hearing

The latest blog by Christopher Stacey reflects on last month’s landmark criminal record disclosure hearing.  

For people with criminal records, last month was pretty significant. The Supreme Court heard the appeal of the Government, which 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 with the Government. 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.

At that point, the Government could (and in my view should) have accepted the verdict and got on with the job of changing the system. Instead, it dug its heels in and appealed to the highest court in the country. That brings us to last month’s hearing.

Given it was the first time in Unlock’s 18-year history that we’d intervened in a legal case, it was always going to be an interesting experience, but couple that with the magnitude of the issues at stake, and the government’s approach to defending the current system, I think it is important to look back at what happened. Having spent 3 days in the Supreme Court, I wanted to take some time to reflect on what was a pretty intense experience (and don’t forget you can watch the full hearing on the Supreme Court website).

First, it’s important to recognise the huge amount of support that we’ve received. We’ve been crowdfunding to cover our legal costs and a huge thank you goes out to everyone that has donated. Now that we’ve raised enough to cover those costs, we’re continuing to raise money through CrowdJustice and everything we now raise will go directly towards our campaign work to help make sure the government takes action when the judgment is delivered.

What lies at the heart of this case is whether it’s right that old/minor criminal records are disclosed on standard/enhanced Disclosure and Barring Service (DBS) checks. In general terms, that’s perhaps an easier argument for the government to stand behind – they can (and often do) cite general concerns around safeguarding, and default to the position that “it’s up to employers to make a decision” as to how relevant the information is. But what’s interesting here is that the Supreme Court case involves 4 different individuals, and the government argued that, on the facts of the cases before the court, it was right to continue to disclose, effectively forever. That’s obviously consistent with their position, but when you look at the facts of the cases, it’s quite staggering that the government believes this to be the case. For example, one of the cases involves a man who over 35 years ago, when he was 16 (and so a child), was convicted of ABH and given a 2-year conditional discharge – because of the categorisation of this type of offence, under the current filtering rules it’ll never come off his standard or enhanced DBS check.

That’s one of the reasons why Unlock intervened in this case. We felt that it was important to try and help the court to understand the breadth and scale of the issue. Our recent report on youth criminal records is a good example of this, showing how the current system doesn’t just impact on a small number of people (in the last 5 years, nearly 1 million youth criminal records disclosed on standard/enhanced checks were over 30 years old), and it was good to see that information provided by us came up a number of times during the 3-day hearing.

A key argument of the government is that it’s down to employers to decide the relevance. They tried to argue that guidance available to employers (such as Nacro’s guidance) was sufficient in ensuring employers treat people fairly. However, as was made clear in court, there is nothing that requires employers to follow guidance of this type, it is not statutory, and indeed much of the evidence before the court shows that employers regularly refuse people with criminal records.

As the recent National Audit Office report into the DBS shows, there are no checks on what employers do with the information provided by the DBS. The DBS itself does not provide detailed guidance or support to employers in ensuring that they carefully assess the relevance of information they receive. In short, the government relies on employers, and employers often don’t do it. Indeed, very often our experience is that the very fact that there is information on a DBS is taken by an employer as meaning it’s relevant – otherwise, why would the DBS have disclosed it?

It was also strange to see the government seemingly argue that people with criminal records do not have many problems in finding employment. Indeed, the government used an answer that I gave to the Justice Committee (“I would be the first to say that many people with convictions do secure jobs that involve enhanced checks, having disclosed them”) to suggest that there isn’t really a problem. This is a rather mischievous use of that sentence, which was part of a longer answer to a question about the problems people face in employment, where I went on to highlight how “there is a huge problem with the way that many employers think that somebody must have a clean DBS certificate, with nothing on it…the current system often tells employers a lot of information that is irrelevant, but as they are being told it they believe it is relevant because the Government would not be giving them that information unless it was.”

The government’s approach also seems to suggest that the overwhelming majority of employers take an inclusive approach towards criminal records, yet this ignores the government’s own statistics, quoted in their own education and employment strategy, published only last month;

“A YouGov study revealed that 50% of employers would not even consider employing an ex-offender.”

This is a figure we cited in our submission the court, so it was interesting to hear the government seek to challenge this figure – when they themselves have used it in their own employment strategy. Indeed, in recognising the problem that people face as a result of their criminal records, on the Gov.uk web page that links to the strategy, the introduction starts with:

“People with a criminal conviction face several barriers on release from prison, with access to employment and education being at the forefront. Not only are many ex-offenders often unprepared for employment on release in terms of their skills and training, but there remains a stigma among some employers about hiring people with a criminal conviction.”

The government was at pains to point out in court that the regime is one of disclosure, not barring. By that, they’re trying to make the point that the current disclosure system doesn’t stop people from applying, and it’s then up to employers to make a decision. However, the government seemed to accept that because of the cautious approach they’ve taken towards the filtering rules, there’s a lot of cautions/convictions disclosed which are not relevant to most jobs that involve standard/enhanced checks, because it could be relevant for some. Lord Carnath rightly highlighted how this cautious approach results in the balance being erred towards disclosure, where there’s a lot of weight on what employers should do, rather than what the government should do.

There was much discussion about what changes might be needed to the current system. That’s something that we’ll be doing a lot of work on over the coming months, and particularly once the Supreme Court has given its judgment. There are two extremes – a completely automatic, rules-based system, and individual case-by-case judgements. Unlock’s view has always been that the answer lies in the middle – i.e. there needs to be some kind of automatic filtering process that remains – with some changes to the current rules so that more situations are filtered automatically – alongside a discretionary filtering process with a review mechanism.

Ultimately, the Ministry of Justice and Home Office need to fundamentally re-look at their position. I hope that, regardless of the outcome of the Supreme Court, the government revisits its approach to this issue and that it accepts that there’s problems with the current system. What worries me most in all of this is that the government doesn’t seem to think there’s any need for change. Perhaps that’s just the position they feel they have to take because of the legal cases. Only time will tell.

Many people are rightly keen to know when the Supreme Court will deliver its judgment. There is no date for when the judgment will be handed down, although it is not likely to be until late 2018, at the earliest.

In the meantime, please support our campaign to wipe DBS checks clean of old/minor criminal records. Donate now here: https://www.crowdjustice.com/case/clean-slate/. Any money we raise will go directly towards our campaign work to make sure the government takes action when the judgment is delivered. This will take our time and resources over the coming months – crucial if we are to make most of the opportunity and get the best possible outcome for people with old and minor criminal records. We really need your support to do this!

 

More information

To keep a track of developments:

 

  1. Sign up to our mailing list (and choose to receive “Unlock news”)
  2. Follow #dbsfiltering on Twitter
  3. Keep an eye on the DBS filtering policy page on our website.

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.

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 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.

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