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Category: Unlocking Experience

New report highlights impact of criminal records on women

While women overall are less likely to have a criminal record than menthose women who do are more likely to face barriers when accessing employment according to the report, Angels or witches”: The impact of criminal records on women, published on International Women’s Day by Unlock. 

The report, which brings together the voices and experiences of women with criminal records alongside data on employment and criminal record checks, highlights the need for dedicated strategies to address the post-conviction problems women face.  

The vast majority of women surveyed as part of the research (86%) cited employment as a problem, with 63% saying it was the biggest problem they faced. One woman said:

“I’ve been struggling to get work. I can’t work in finance or admin roles for local government like I did previously as I need an enhanced DBS. I now work in low paid cleaning jobs but struggle to find cleaning work as all school cleaners, doctors surgeries need enhanced DBS checks.”  

By analysing data on the number of criminal record checks that disclosed convictions, the researchers found that, although less likely than men to have a criminal record, women are almost twice as likely to have their criminal records disclosed on a DBS check. One possible explanation for this is the higher level of checks required for traditionally female-dominated roles, such as care work and education. 

Over half of women surveyed felt that being a woman made their post-conviction problems worse, with many citing additional stigma face by women with convictions. One respondent said: 

Women are still treated as either angels or witches, there is no in between. Women with convictions are demonised in ways that men never have been 

What is also clear in the report is that for many women, their convictions exist alongside significant trauma; nearly two thirds (59%) of women surveyed reported having experienced domestic abuse at some point in their lives. A tenth said they had been a sex worker at some point in their lives, and 31% had experienced addiction or substance misuse. And yet there is a dangerous lack of support or understanding to enable these women to move on positively in their lives – they are simply handed the stigma that comes with a criminal record. 

Dr Rachel Tynan, Practice and Policy Lead at Unlock, said:

“These findings clearly demonstrate that women face specific barriers and challenges because of their criminal record – and that these aren’t properly understood. That’s why we’re calling on the government to conduct a full root and branch review of the criminal records system, including the proportionality and impact on women and people with other protected characteristics.  

“We also need to see a dedicated employment strategy that recognises and responds to the specific challenges faced by women leaving prison and on probation. If women are being locked out of the jobs they have trained for because of minor convictions, how are they supposed to make a positive contribution to society?”

This report was produced as part of Unlock’s Unlocking Experience project. Find out more about the project and the previous two reports, focussed on the experiences of young people and BAME people with criminal records. Our thanks to Barrow Cadbury Trust for funding this work.

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

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

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

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

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

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

Christopher Stacey, Co-director of Unlock, said:

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

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

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

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

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

“P” and “G”

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

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

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

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

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

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

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

Notes

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

‘Double discrimination?’ report published

Today we’ve published research on the impact of criminal records as perceived by people from Black, Asian and Minority Ethnic (BAME) backgrounds.

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

The full report can be downloaded: Double discrimination? Full report (Unlock, July 2019). An executive summary can also be downloaded: Double discrimination? Executive summary

Read our press release for the launch of the report.

This work is part of our Unlocking Experience project.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notes

  1. Unlock is an independent, award-winning national charity that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence. 
  2. There are over 11 million people in the UK that have a criminal record.
  3. Unlock’s website is unlock.devchd.com.
  4. High-resolution images for media use are available from Unlock’s Flickr account.
  5. The full report is available here. An executive summary is available here.
  6. Black and Asian defendants have consistently had the longest average custodial sentence length since 2012. As set out on page 58 of the Ministry of Justice (2016) Statistics on Race and the Criminal Justice System 2016.

Comments from survey respondents

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Written by Christopher Stacey

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

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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Landmark case on disproportionate criminal records disclosure regime reaches Supreme Court

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

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

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

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

“Our research shows the significant number of people who are being unnecessarily anchored to their past as a result of a DBS filtering system which is blunt, restrictive and disproportionate. In the last 5 years alone, over 1 million youth criminal records were disclosed on standard or enhanced criminal record checks that related to offences from over 30 years’ ago.

 

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

 

“A fairer, more proportionate and flexible system should be developed that protects the public without unduly harming people’s opportunity to get on in life. We hope that the Supreme Court will reject the Government’s appeal. We stand ready to work with the Government to reform and implement a system that takes a more calibrated and targeted approach towards disclosing criminal records.”

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

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

 

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

ENDS

Notes 

  1. Unlock is an independent, award-winning national charity that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence.
  2. There are over 11 million people in the UK that have a criminal record.
  3. Unlock’s website is unlock.devchd.com.
  4. High-resolution images for media use are available from Unlock’s Flickr account.
  5. Unlock’s report, A life sentence for young people, was published in May 2018 and can be downloaded at https://unlock.org.uk//youth-criminal-records-report/
  6. Unlock has published a briefing on the DBS filtering process – available to download at https://unlock.org.uk//wp-content/uploads/misc/DBS-filtering-Briefing-May-2018.pdf
  7. Unlock is represented in these appeals by Salima Budhani and Theodora Middleton, Bindmans LLP, and barristers Caoilfhionn Gallagher QC and Jesse Nicholls, Doughty Street Chambers.
  8. There is no date for when the judgment will be handed down. It is not likely to be until late 2018, at the earliest.

 

About the cases

These appeals consist of 4 cases: P, G, W (appeals from the Court of Appeal of England and Wales) and Gallagher (an appeal from the Court of Appeal of Northern Ireland). In all four cases, the Government is appealing, having lost in the Court of Appeal. There are summaries of the cases on Unlock’s website – https://unlock.org.uk//policy-issues/specific-policy-issues/filtering/cases-challenging-dbs-filtering-system/

The current system

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

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

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

New 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 targetThank 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.

Youth criminal records report published

Today we’ve launched new research on the impact of criminal records acquired in childhood and early adulthood.

The report 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.

The report can be downloaded: A life sentence for young people (Unlock, May 2018)

A summary of the report can be: Summary – A life sentence for young people (Unlock, May 2018)

Read a feature on the report in the Guardian.

Read our press release for the launch of the report.

Our crowdfunding appeal to raise funds to intervene in the Supreme Court is at https://www.crowdjustice.com/case/clean-slate/

This work is part of our Unlocking Experience project.

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