Disproportionality and criminal records

The impact of a criminal record can be wide ranging. A criminal record can create barriers to employment, education, finance, housing and travel, as well as damaging personal relationships and harming wellbeing. These issues can be very significant, something that is reflected in the nature of the calls we receive every day on our helpline.

However, not everyone experiences these barriers equally.

In 2019, we published Double Discrimination?, a report that examined the way race impacts on how people experience having a criminal record. Central to this was a survey which gathered data on the impact of criminal records as perceived by people from racially minoritised backgrounds.

This survey found that 78% of people felt that their race made the barriers they faced as a result of their criminal record harder. There are numerous ways in which criminal records display this type of disproportionality.

Discrimination in the criminal justice system leads to criminal records disproportionality

A criminal record can act to “bake in” disproportionalities from earlier in the criminal justice system. People from racially minoritised communities can find themselves arrested, cautioned and prosecuted at higher rates. The 2017 Lammy Review presented stark data on this topic, highlighting racial disproportionalities throughout the criminal justice system.

Due to this unfair disproportionality, people from racially minoritised communities are more likely to end up with a criminal record. This then follows people in the form of their criminal record.

A further barrier is created where sentencing is also disproportionate, something that is known to be a problem. More severe sentences carry lengthier spending periods. This means that the same offence can have varying criminal records implications, leaving information visible on basic checks for longer. As such, any racial disproportionality in sentencing has concerning implications for criminal records and the barriers people face in moving on from their past.

Unequal experience of having a criminal record

Beyond the basic facts of having a criminal record, we know that not everyone experiences the barriers they create equally. This is clear from our research. Other forms of prejudice and discrimination collide with the stigma experienced by people with criminal records to create a challenging environment for racially minoritised communities.

One respondent to our 2019 survey spoke of negative perceptions, explaining that “people already assume things about me based on my race, and having convictions just adds fuel to the fire”.

These negative perceptions are something that are widespread in relation to both employment and access to higher education. A 2022 report by the TUC highlights the barriers people from racially minoritised communities face in relation to work. The racist and discriminatory attitudes highlighted by this report bleed into recruitment processes. A workplace with a culture of racism is likely to see that culture extend to how those making recruitment decisions assess candidates.

Besides racist attitudes creating exclusion, the TUC report highlights disproportionalities in types of employment. This mean that racially minoritised groups may be more at risk of exclusion following higher level DBS checks required in sectors such as healthcare, given they are over-represented in such work. The nature of this work – often underpaid and insecure – allied with the risk of exclusion based on criminal records, creates very real barriers for people with criminal records from racially minoritised communities. As such, it is unsurprising that our research showed that people felt their race provided an additional barrier to the simple fact of a criminal record.

Time for change

Although there are clearly society-level issues to address around racism and discrimination in the UK, one answer to the problems outlined here is a more progressive approach to recruitment practices. The “Ban the Box” scheme is designed to allow people with criminal records to have their CVs judged on merit, rather than through a stigmatising lens, by removing formal criminal records questions from initial stages of applications.

However, recent research suggests that this scheme does not always help those from racially minoritised communities. This research found that Black applicants who disclosed a prison-based training course on a CV were less likely to progress in recruitment processes despite a lack of a formal criminal records question. This suggests that race plays a role in how employers deduce information about criminal records, thus heightening existing barriers.

The Lammy Review argued that improvements to the criminal justice system with regards to racial disparities would make for a better system more broadly. Although undoubtedly true, this could only ever be the first step addressing racial disproportionalities, with more specific measures needed.

We need to know more about criminal record checks

The Lammy Review also issued a call to “explain or reform” if racial disproportionality exists. Currently, the DBS does not systematically collect data regarding the race of those subject to DBS checks. Last year we were able to publish a briefing on gender disproportionalities in DBS checks, but no similar work is possible to shine a light on racial disproportionality.

We call on the DBS to begin data collection to allow for work to be done to determine whether there is racial disproportionality in the use of DBS checks. Alongside what we know about racial disproportionalities in the experience of having a criminal record, this would be immensely valuable work.