There are currently four bills making their way through parliament that contain measures that would, directly or indirectly, have an impact on people with criminal records. It is important to view these measures in context, including ongoing political instability and political parties seeking to position themselves ahead of the coming general election.
Some recent changes have been positive. Those implemented in October following the passing of the 2022 Police, Crime, Sentencing and Courts (PCSC) Act reduced the post-conviction spending periods for many. We provided a full summary of these changes at the time. However, there remains uncertainty around other issues, for example the recommendations made in the recent review of the Disclosure and Barring Service (Unlock’s response to the review is here) and consultations concerning the Criminal Injuries Compensation Scheme (Unlock’s evidence to this is here).
Criminal Justice Bill
This bill contains numerous measures described by the government as improving public safety by providing “tougher” measures against certain crimes. It contains little that will support people with criminal records to overcome the barriers we know they face in relation to employment, education, housing and other aspects of social integration. Rather it embeds the narrative around criminal justice that adopts a punitive response, for example in relation to social problems such as homelessness and begging. Tougher sentences, a slew of new offences specific to particular activities (for example in the way it proposes to replace the Vagrancy Act 1824) and the proposal to lengthen an individual’s sentence for non-cooperation in court could all have further consequences for a person’s life chances.
Many of these measures could have an impact on criminal records if they act to increase the number of people with convictions that will take longer to be spent or even never become spent. We are concerned by the fact that this bill leans into a hardline approach to criminal justice, specifically that this is not conducive to the kind of wide-ranging reform of the criminal records system that is necessary.
This bill was announced as part of the King’s Speech on 7 November and had its second reading on 28 November, the first time it was debated in the House of Commons.
Data Protection and Digital Information (DPDI) Bill
The DPDI Bill makes significant changes to data protection law. Criminal records data is currently categorised as sensitive data and, therefore, subject to greater protections. We believe this should remain the case.
The bill seeks to reduce the obligations around data processing for organisations. This includes reducing the need for organisations, including law enforcement organisations, to justify data collection and processing activities and widening the definition of legitimate interests that can justify such activity. These measures could leave people with criminal records vulnerable to excessive data processing.
The bill also makes changes to the regulation of data processing and the associated complaints process. Replacing the Information Commissioner’s Office with an Information Commission less independent of government risks weakening individual data rights. These will also be jeopardised by changes that will stop an individual from complaining to the Information Commission about an organisation misusing their data without first having raised the issue directly with that organisation.
Unlock published a full briefing on this bill in August 2023. The bill has already spent a lot of time being debated in the House of Commons and reached report stage on 29 November.
One of the key provisions of this bill is to introduce a presumption that custodial sentences of less than twelve months should be suspended. Although this provision is intended to aid rehabilitation, it is important to note that it will have no impact on a person’s criminal record; a suspended prison sentence is treated no differently to a prison sentence served for the purposes of spending periods. Reforming this type of anomaly within the spending periods regime would have a greater impact on rehabilitation, reducing the barriers faced by many with a criminal record.
Furthermore, a statutory presumption in favour of suspending custodial sentences of less than 12 months creates a risk of ‘up-tariffing’, whereby the court imposes a longer custodial sentence to ensure that the person convicted does serve time in prison. This would have a knock-on impact on that individual’s spending period and could undermine the reductions in spending periods implemented so recently as part of the PCSC Act.
Finally, this bill proposes to make changes via the existing Sentencing Code. This would be a great opportunity to update the Sentencing Code to ensure that it pays due attention to the ‘second sentence’ of criminal records, spending periods and the disclosure regime so that these impacts are factored into sentencing decisions.
This bill was announced as part of the King’s Speech on 7 November and no date is yet set for its second reading, its first debate in the House of Commons.
Victims and Prisoners Bill
The Victims and Prisoners Bill contains some provisions that might impact on people with criminal records. However, it crucially overlooks the fact that a victim can also be a person with a criminal record. This bill would be strengthened by an explicit acceptance of the fact that victims can themselves have criminal records, indeed the victims of certain crimes are statistically more likely to end up with criminal records of their own in the future1. This is an issue in relation to the Criminal Injuries Compensation Scheme, whereby people with unspent convictions are ineligible for compensation (Unlock’s briefing on this issue can be found here). Having a criminal record should not exclude a person’s rights as a victim.
This bill has already spent a lot of time being debated in the House of Commons and is currently scheduled to reach report stage (where final amendments can be made before it is passed to the House of Lords) and third reading on 4 December.
There are positive elements to some of the legislation going through parliament currently. However, these bills do not aid rehabilitation through criminal records reform or address the numerous barriers people with criminal records continue to face many years after their original conviction. Indeed, measures that are designed to demonstrate the government’s punitive approach to criminal justice run the risk of embedding such barriers, whilst the efforts of the DPDI Bill to lessen the burden on organisations with regards to data processing risk weakening safeguards for people with criminal records.
We will continue to monitor these pieces of legislation and lobby for positive changes to be made to them. As part of the #FairChecks campaign we are calling for fundamental reform of the criminal records system. Our specific asks as part of this campaign are for an end to any automatic disclosing of cautions, that childhood offences are wiped clean and people ought not too be required to reveal short prison sentences forever. These steps would make a huge difference to millions of people with criminal records seeking to move on with their lives. To read more about why we believe reform of the criminal records system is needed see our briefing here.
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