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Coming clean

by Craig

The 1990s were not the most successful years of my life. Even now at a distance of 18 years it is still difficult to see where the success of being elected on to my local Metropolitan Borough Council, and the rapid rise through its hierarchy to the position of Vice-Chair of the Education Committee, gave way to mental illness and serious crime some 5 years later.

In the late 80’s, I had my leg smashed when a car drove through my garden wall crushing me as I opened my front door. In that brief moment my career and way of life was lost. I spent three years and several periods of hospitalisation having my physical injuries repaired. Unfortunately, coming from ‘down-to-earth’ northern stock I refused to recognise the toll that these injuries and my enforced incapacity was having on my mental health. Despite the success at being selected and elected to the council my idea of a career in public service was destroyed by a total nervous breakdown and divorce from my long suffering wife.

In the mid 90’s I was deselected by my party due to drink related incidents that brought shame on me and embarrassment to the party. This came as a result of my refusal to see I was in trouble mentally, as well as physically, and my rejection of the many attempts to offer a helping hand from family and friends. In 1995 with unemployment and divorce a reality, I took the enormous step of moving to London with vague notions of starting again. In London I had several friends who I am proud to say have remained loyal friends to this day. However as my physical health improved my mental health disintegrated and I found myself in July 1996 without money, in rent arrears and in a stubborn mind-set that dictated I would seek no help from any quarter. It was in a state of mental collapse that I decided to solve all my problems by robbing a bank. I have no idea where a 36 year old former councillor and professional man gets the idea that this is a good career move.

It was not, and in a state of agitation and distress I was taken into police custody inside a bank I tried to rob in the City of London. Given the political realities of the 1990s with IRA activities a very real threat, I was lucky not to be killed. Indeed my psychiatrist concluded that my actions could be construed as an attempt at suicide, albeit a subconscious one. In any event given my offences I was treated leniently and was jailed for five years. Prison proved to be an oasis away from drink and unemployment, both of which contribute hugely to depression. I also received the much needed mental health therapy I needed.

In 1999 after two and a half years in prison and two Open University modules completed I was granted parole. Whilst this was welcome I was very aware of the reality of my situation. I was now an ex-con entering middle age with no prospects and no employment. I quickly found work driving a van for a parcel delivery company. This I obtained by ignoring the advice of my probation officer, ticking no on the employment agency application form relating to previous convictions.

I have since realised just how lucky I am not to have been caught doing this as I may well have gone back to prison. However, I did not repeat this dishonesty and set about applying for jobs. I sent out many CVs always including my convictions and a brief description of how they came about. I tried to down play them as far as possible and concentrate on my positive past experiences. I reasoned that if I was lucky enough to get an interview then at least I would have an equal chance at getting the post as the HR department would be in possession of all the facts prior to short listing.

Six months after leaving prison I was called for interview by an advertising company looking to recruit and train advert hands to put up the advertising displays on London Underground. I attended and was astonished at how well the interview went and how positive the panel seemed to view my CV. At the end the chairman and soon to be boss asked me directly if I was a professional criminal or could he believe me that this was an aberration I was not going to repeat. I thought this a fair question and just reiterated what I put in my application. He gave me the job there and then. I was able to pass the Underground’s medical and spent seven happy years there until deterioration of my knee joint forced me to quit. It turned out that my boss had a brother who had done a very similar thing to me and had had an awful time trying to get into employment. He told me he had promised himself if he could he would offer work to ex-offenders.

My next employer was a well-known firm of bookmakers who took me on despite my record, and whilst I had to leave due to a recurrence of mental health issues in 2009, I can honestly say the HR department looked at my record, offered me the job and never referred to it again.

Personally, I would urge anyone with unspent convictions to include them in the application they send to prospective employers and voluntary bodies for two reasons. The first is that an upfront and honest declaration will be received far more favourably than the awkward moment in the interview where the inevitable question is asked about unspent convictions. The second point is related to the first in that whilst there are employers who will reject people with criminal convictions out of hand, it is better they do that at an early stage and not waste your time or give you false hope.

Maybe I have been lucky but, I have had no more trouble getting and keeping jobs than my peers who have no convictions, and I spend my working life working confident in the knowledge that I have nothing to hide.

There is work after convictions and I wish you all good luck in finding it.

The Right to Forget

Editorial

There’s an interesting debate in the air regarding the EU ruling on ‘the right to forget’. The EU has just passed legislation that allows individuals to block access to outdated information and stories.

On one side, individuals who want hide information on the internet about the way they have behaved in the past can write to search engine providers, such as Google, to stop them listing pages containing personal information which is more than 30yrs old.

Some journalists and media academics are claiming this is a dangerous form of censorship, undermines free speech and hobbles journalism. They claim it should only be publishers who have the right to decide if information should or should not be made public. This means that the judgement call on what it is legitimate to publish rests with journalists like Piers Morgan and Rebekah Brookes.

On the other side, people with convictions, and others who wish to bury embarrassing stories about their pasts, are asking for the right for them to be forgotten, as criminal records are under French law.

As James Bell writes in the guardian: “There might be a case for saying some stories should vanish from the archives: what about, say, someone who committed a petty crime at 18, who long since reformed and cleaned up their act? If at the age of 30 they’re finding that their search history is still preventing them getting a job, couldn’t they make the case that it’s time for their record to be forgotten?”

But he also makes the point that “The Guardian, like the rest of the media, regularly writes about things people have done which might not be illegal but raise serious political, moral or ethical questions – tax avoidance, for example. These should not be allowed to disappear: to do so is a huge, if indirect, challenge to press freedom. The ruling has created a stopwatch on free expression – our journalism can be found only until someone asks for it to be hidden.”

You can see more of the debate here: http://www.theguardian.com/commentisfree/2014/jul/02/eu-right-to-be-forgotten-guardian-google

If a person is convicted in the UK, then their conviction is a matter of public record, and anyone can research press articles and court records and bring them back to everyone’s attention. But should there not be a time-limit on this, just like the idea of a spent conviction?

We’re very interested to hear what you have to say about this. Please let us know your views – either comment on this article, or send us your thoughts.

Applying with conviction

by Richard, editor, unlock.devchd.com/community

I’m writing in response to Nicola Inge’s article Beyond conviction (DDN, June, page 8). The ‘Ban the Box’ campaign is an excellent idea and fully supported by online magazine theRecord and our partners at Unlock. The principle behind the Rehabilitation of Offenders Act was to break the cycle of offending and re-offending by enabling people with convictions to gain employment, and led to the concept of a spent conviction.

Sadly, with the inception of the CRB, now DBS, this principle suffered a massive setback, and asking about previous convictions at the application stage became commonplace, particularly in health, social care and education – the very services that espouse a progressive approach to rehabilitation. This, in turn, led to people with convictions not even applying for jobs that require a disclosure at the application stage.

The US approach based on the equal opps agenda and its accompanying legislation is well worth emulating in the UK, for all the reasons set out in the article. And, following Gandhi’s famous dictum, it would serve people with convictions, the recovery industry and the wider society well if drug and alcohol treatment services were to ‘be the change they want to see in the world.’
If recovery services were truly committed to equal opps, they would never expect candidates to discuss their offences at interview because this never gives people with convictions the opportunity to present themselves as equal to those without convictions. This differentially discriminates against those from minorities, as mentioned above, and male applicants – often under-represented among the recovery workforce – because they are seven times more likely to have a conviction than females.

There are only three reasons employers ask about convictions on application forms: because they think they ought to, because they intend to use that information to discriminate or because they are just plain nosy. The simple fact is that an employer only needs to know about the criminal record of people they will employ, i.e. the person who emerges as the leading candidate, after the interview stage is complete. There is no need for any employer to elicit or, more seriously, retain information about a person’s criminal record if they are not going to employ them. It is only the successful candidate who ever needs to be asked. The other candidates should be able to exit the recruitment process with their privacy intact. Sadly, this is not the case with any of the treatment service recruitment processes that theRecord is aware of.

Often, employers are also labouring under the illusion that screening for convictions at the application stage is a form of risk assessment. It is not. The absence of a conviction tells you nothing about a person’s honesty or safe conduct, it only tells you that they have never been caught and convicted.

A person with a history of, say, violence or fraud, but who was never caught, can sail through the process untested, while the poor sod convicted of possessing a few grams of weed or stealing a car 20 years ago gets grilled by complete strangers in a powerful position in a non-therapeutic setting. Any therapist will tell you that this can be devastating, even relapse-inducing. Both Unlock and theRecord regularly receive mail and calls from people who’ve been treated in this way only to be told that a stronger candidate got the job, so there was never any need to put them through that part of the interview because their record was never actually relevant to the employer. And even when they are successful, they are often then faced with working alongside people to whom they have disclosed their convictions – the people who interviewed them. It might be better if such disclosures are only ever made to HR and passed to senior management, not colleagues, because you never get a second chance to make a first impression.

So, if recovery employers want to offer an equal opportunity and run a safe and legal service, there are just three things they need to do. Firstly, ask only the prime candidate about previous convictions. Secondly, follow that up with the appropriate level of DBS check and, thirdly, risk assess that candidate regardless of whether they have a conviction or not. There are several psychometric tests that can be used for this in consultation with a suitably qualified psychologist. If their favourite candidate proves risky, then move on to the next. It would also be very helpful if employers would state at the application stage which level of DBS check is required for that specific post. This would give the candidate an informed choice whether to proceed with an application or not.

This article was originally published in the July 2014 edition of Drink and Drug News.

Former MP and former prisoner Denis MacShane writes about the role of financial services in helping people released from prison

Denis MacShane, former MP and former prisoner, argues in a feature for this months’ Financial World magazine, that the financial services industry needs to do more to help discharged prisoners reintegrate into society.

Thanks to Financial World, you can download the specific article here.

The two main issues that Denis raises are that of bank accounts and insurance. We were pleased to be able to speak to Denis when he was writing this article, and we’re glad that he’s raised some of the core issues that remain on these fronts.

A glass ceiling? Good enough for a job, but not for a promotion

by Mary

In November 2009 I was dismissed from the post of a Council Principal Librarian. Although I had had an unblemished professional record since 1975, I became the victim of bullying and harassment by a jealous colleague who was acting up in the role of head of service. I was accused of having books at home that I hadn’t issued – books which I was using for work purposes to prepare for family learning outreach service. The Council took out a private prosecution against me and, on the advice of my solicitor, I fought this unfair prosecution and insisted on fighting it through to Crown Court. But I was convicted of Fraud and Theft in January 2010. I was dismissed from my post two months before this verdict.

I spent 3 years trying to gain employment, but had several offers retracted when the Council sent in a bad, damning reference. I made prospective employers fully aware of my background and the circumstances of my conviction. In the light of my explanation and excellent references from previous employers, and an account of my court case, I was offered my current job as a Librarian by a local Trust in July 2012. I have been praised for my performance in my job and have received straight ‘A’s in my assessments.

About 6 weeks after I started, I received a telephone call from a reporter who told me that they had received an anonymous letter about my conviction. This can only have come from someone at my previous employers, the Council. I know this because the letter contained information that only the Council’s HR Dept. knew. The newspaper published an article, which was an exact reprint of what had appeared in the local press at the time of my conviction and about which I had made my current employer fully aware.

I was mortified by this article but, at the time, my employing Trust were supportive. My boss briefed our Press Office about the issue and gave out a statement saying that they are an equal opportunities employer and had considered all of the facts when they appointed me. They also offered me counselling. The only feedback the paper received about the article was very positive for the council, saying that it was to their credit that they had given me a chance. They could easily have fired me, but they didn’t.

Then, in June 2013, because things seemed to be going so well, I applied for promotion. But my application was rejected outright, without the chance of an interview, purely because my conviction was unspent. I was told by the Chief Executive that my application was by far the best they had received, but I was also told that I would be an embarrassment to the Trust and that I couldn’t be trusted.

I’m an honest and hardworking person, and I have proved it. My conviction, for taking books home to work on, was purely driven by malice. The Police weren’t interested. It was a personal vendetta continued with anonymous letters to the press. As a result, I have a permanent record for dishonesty and have hit a ‘glass ceiling’ where I cannot progress in my career as a result of an unspent conviction.

Rehabilitation, Rejection and Resilience

by Simon

I was very pleased to find out that the reforms to the Rehabilitation of Offenders Act (1974) will apply from 10th March. I was sentenced to 3 years imprisonment in March 2004, and thought that I would have to declare my criminal conviction for life but, given the changes, my conviction will now become ‘spent’ – 7 years after my Sentence Expiry Date.

I’ll outline some of the mixed experiences I’ve had, and reactions I’ve faced, when declaring my conviction. Some will resonate with you and some might help prepare others for the challenges ahead.

Initially, I was lucky and did not encounter many barriers to resettlement. A friend offered me labouring work during the day and my old school, who were aware of my imprisonment, gave me cleaning work in the evenings. Seen together, these opportunities – and that’s how they had to be viewed – helped both financially and by providing a routine that kept me busy. Crucially, though, this meant that I didn’t have to run the gauntlet of potential rejection from employers. I wondered how, with such a fragile self-esteem, and having just left prison, I would have coped with further alienation.

After about 18 months my friend could no longer provide any work and the evening job became too much, so I found myself seeking other employment. I went for a ‘front of house’ position in a local café. As I filled the application form out with the manager sat opposite, I saw the dreaded ‘Do you have a criminal record?’ question. I lied and put ‘no.’ I reasoned that it was just a cafe job, and ‘they wouldn’t even begin to understand, if I told them.’ I needed that job.

This lie did not come back and bite me, but that is not the point. My family brought me up to be open and honest – and those are values that I hold dear in principle – but, in practice, and in the heat of the moment, I couldn’t face what I assumed would be a rejection, so I did not tell the truth.

Whilst I would always advocate honesty about a criminal past, I now have an insight and an understanding into why some people decide not to declare. Is it a dishonest nature, an assumption of a bad outcome or a fear of the hurt caused by yet another rejection that can drive certain behaviours?

I left the cafe with my dark secret undiscovered and, luckily, another friend then provided work in a warehouse in Northamptonshire. As with the previous building and cleaning roles, this bypassed the need for a criminal record check and so, by the time I had finished at the warehouse in August 2008, I had held four jobs since prison and had only faced one criminal record check. I wonder whether most people are as fortunate as this?

The ideal exchange between potential employer and employee did occur, however, when I decided to return to University and I would advocate this approach, rather than the method that I adopted with the cafe. I wrote a personal statement outlining my past, in support of my application. I outlined mitigating factors to the offence, but also emphasised the positives prior to and after my imprisonment. Emphasising the good and making the bad appear smaller worked because every University that I applied to offered a place. It was re-assuring to think that people were prepared to give an ex-prisoner a second chance and that an open, upfront letter had won plaudits. It confirmed my suspicions that many people respond to a positive approach in kind.

Life has run reasonably smoothly over the last few years, but I’ve twice needed to ring UNLOCK for advice over two other CRB related incidents. In the first example, I declared my conviction on an application form for a criminology research role in the East of England. I was offered the job, despite my conviction but, later, the human resources people wanted to know more about the offence. So, I attended a second interview, which was incredibly stressful. Thankfully, the charity continued with their offer of employment but, because of the sensitive location and nature of the project, they attached certain conditions: I must not tell my colleague about my past and, for the first month, I had to sit in a separate part of the building, away from the rest of the team.

My line manager and the senior managers were, on balance, very supportive throughout and even they were not sure whether what they were doing was appropriate. I was treated differently because of my conviction and that not only hurt, it re-enforced the sense of ‘difference’ that many people with convictions feel.

In my mind, I had to take a mature approach: ‘play the game;’ be ‘squeaky clean;’ do a good job and learn from my experience.

Things worked out, but only because I communicated how I was feeling and staff kept supporting me. Not every employer and employee dynamic works like this. I feel for those who are not great communicators, feel unsupported or have poor employers. I wonder what the costs are, in psychological terms, of feeling under scrutiny because of your past, and why some people with convictions still have to go the ‘extra mile’?

The second incident is perhaps more commonplace. I signed up at a local recruitment agency, declared my conviction on the application form and was taken onto the books. However, later that day I received a phone call from the recruitment consultant who apologised stating that, at first glance, she had not noticed the tick in the convictions box. She had phoned head office and was sorry to say that I could not be employed. Company policy would not register anyone with convictions regardless of their offence. The consultant, who admittedly was toeing the party line, even said that ‘it doesn’t matter whether you are a murderer or have stolen a pack of sweets, we treat everyone the same.’ UNLOCK said that they had not broken the law but this misguided attempt at equal opportunity, or lack of it, by ‘treating everyone equally’ is not common sense or logical and is obviously an example of the attitudes that some employers hold.

Now that the reforms to the Rehabilitation of Offenders Act are a reality, it feels like all the heartache was worth it. I believe if you do the right things, eventually society will do right by you – even if it hasn’t in the past. It’s important to be upfront and honest – at least you maintain your integrity, even if you don’t get that particular job.

I understand taking the moral high ground is little comfort if you’re unemployed, but definitely focus on the positives and try to make the bad stuff appear smaller and less important. Keep going and believe that someone will give you a break somewhere. Research, seek out and network with user-friendly organisations that support people with convictions and always emphasise that you are far more than an offence on a piece of paper.

‘I’m going to move on now’

I last wrote here about 9 months months ago. Since then there has been a change. New amendments to the Rehabilitation of Offenders Act are coming into force this month. Since March 10^th, I no longer need to tell many potential employers, insurance companies or other interested parties that I have a record.

This is a huge relief. For me, it’s a massive change. It means I’ll be able to apply for job like stacking shelves in the Co-op or work in an airport. Seventy percent of all jobs now require a disclosure. Now I can apply for far more of them. And get insurance to be a plumber: what’s possible now in the world of self-employment is far greater too.

In many ways, 36 years after my conviction, I now have the right to be treated much like any other citizen. That’s very important to me because that’s just how I want to feel, just like any other citizen. Now the challenge will be to adapt my ingrained ways of thinking about myself, and take opportunities that were previously barred to me.

But let’s not forget that these changes don’t effect everybody. People who’ve been sentenced to more than 4 yrs. are still caught in the same old net. As a society, we are still obsessed with the long past, and with our belief that it is the best predictor of future behaviour. The Government are changing the legal limit on digging into the past lives of others, for such things as insurance and employment purposes. But the changes haven’t gone far enough. There is still a great deal of disproportion in the system. Why should someone sentenced to four years be treated as a whole different category of human to someone who’s served three? What we have is an arbitrary cut-off point; what we need is a system that takes age and maturity much more into account.

As a society, we have a right to expect people to behave better as they mature and grow older. But, again, what we have now is an arbitrary cut-off point at 18, when we get the right to vote. Everyone knows people mature at different rates, and that, often, the pinpoint accuracy of sentencing to reflect exactly the nature and seriousness of the crime is subject to all kinds of vagaries, from the politics of judiciary to the colour of the convicted’s skin.

As we move ever closer to towards a pan-European criminal record system, and the interconnected and international nature of policing and surveillance methods, there is an opportunity to revise these weaknesses and build a system that still protects the public and the employers, but give better opportunities to those who sort themselves out and go on to live more decent lives. It requires three ingredients:

1) The time during which a conviction is unspent and before which full rehabilitation can begin should be linked to both the sentence handed down and the convicted person’s age at the time of the offence. Simply adding their age to the sentence in years gives a much fairer system. E.g. An 18 yrs old sentenced to 3 yrs gets a rehab period of 21yrs, after which time the record is expunged completely, the offences become spent in half that time, 10.5 yrs. Whereas a 40 yrs old getting three years would have a rehab period of 43 yrs and a spent period of 21.5yrs. A 28 yr old getting 14 yrs would have spent conviction after 28yrs and everything expunged after 42 yrs, by which time they’ll be 70. Doesn’t that seem fair enough? The police and courts would retain records for life, and pervious conviction would still be factored into any future sentencing, but those who don’t offend again get to die with a clean record.

2) That employers do not ask about a job applicant’s criminal record until after all the interviews have been completed and they have decided on their favourite candidate. They should never need to ask applicants they were never going to employ about their record. If the chosen candidate has a record that makes them unsuitable, then they are not offered the job and it goes down the line to the second best candidate. I completely accept that an employer has right to know about convictions – but only of their employees. Until you become an employee you are just a member of the general public, and you should have a right to keep your record private. The box on job application forms which asks about criminal records should be banned.

3) Compassion. As a society we often define ourselves by what we hate and won’t tolerate, and that all seems natural and unavoidable. We also define ourselves by our compassion, or lack of it. If you refuse to forgive, you make a prisoner of both yourself and the other, because both become stuck and neither can move on. Everyone has had their struggles, and if they acting out badly during that time, can we not let rest in peace after thirty years? The French call it ‘the right to forget’. Let’s move closer to that.

I’m going to move on now.

A Position of Trust

By Aaron

Should those with unspent convictions should be employed in a place of trust?

I worked in mental health services for nearly 5 years without any blemishes to my work record. The management asked me if I would undertake a diploma or degree in psychosocial interventions as this would put me in good stead for a managerial role. It was a very difficult time in my life, as was still coming to terms with the murder of my son. He was just 15yrs old. I was also asked to do another part-time job on top of the Master’s degree. But I said yes, I would do the course.

While I was waiting to get started on the course, our organisation went up for tender. As part of this process, all the staff had to undergo a new enhanced criminal records check. Mine came back with my prison record on it, as I was sent to prison for 3 years in 1992 for GBH; I had done 18 months in Northern Ireland. I was immediately sacked because I had not disclosed this.

Until I got advice, I had assumed that anything over 10 years or more was off your record, and that’s why I did not disclose my conviction.

I worked in the mental health area from 2005-2009. When I was sacked in December 2009 , my wife left me and I lost my home and driving licence because I began to drink. My wife also miscarried whilst also trying to come to terms of the death of our son.

All of this happened to me in December 2009. I lost a lot of my confidence and became reclusive because I felt a complete and utter failure. But I didn’t turn to crime, or hurting others. Just because you’ve done something bad in the past, doesn’t mean you’re always going to act that way, no matter how much stress you’re put under.

I do believe people with convictions being trustees should be implemented because people can and do change their lives if given the right needs and support.

Those with no criminal convictions can and do offend; a clean criminal record check only tells you they haven’t been caught yet. And, in very recent times on the news, there have been cases where those in charge of vulnerable people – whom I would assume have no convictions –were mistreating and abusing those people placed in their care.

The important thing is to judge people on how they are now, not on what they’ve done in the past, and let people with conviction make good, positive contributions where they can.

Are the changes to the Rehabilitation of Offenders Act enough?

People with criminal convictions are not the most popular group in society.

However, once somebody has served their sentence and doesn’t re-offend, it’s in everybody’s interests to enable them to move on positively with their lives and contribute actively to society.

And we’re not talking about a small group of people either – although around 100,000 people are sent to prison every year, there are over 1.4 million convictions at court every year. The majority – approximately 945,000 convictions – involve a fine, with 195,000 convictions resulting in a community sentence, and about 45,000 having a suspended prison sentence. There are over 9 million people in England and Wales with a criminal record. A third of people claiming jobseekers allowance have been cautioned or convicted in the last 10 years.

Before 1974, anybody given a conviction at court would have to disclose this for the rest of their life if they were asked. This caused people real difficulties when trying to get their lives back on track. That is one of the main reasons why the Rehabilitation of Offenders Act was introduced 40 years ago. It remains the only real piece of legislation that provides some form of legal protection to people with convictions.

However, ever since it was introduced, it’s been criticised in many ways, with the main focus of attention being on the ‘rehabilitation periods’ attached to a sentence. For example, a fine took 5 years to become ‘spent’, an 8 month prison sentence took 10 years, and a sentence of more than 30 months in prison could never be spent.

That’s why, right from when Unlock was started back in 1999, we’ve campaigned for reforms. We were part of the Government’s original Breaking the Circle review in 2002, and since then have pushed for the recommendations in that review to be implemented. The more recent Breaking the Cycle review brought the item very much back on the agenda, and although it’s been a long-time coming, changes we’re finally included in the Legal Aid, Sentencing and Punishment of Offenders Bill, which received Royal Assent in 2012.

Two years further down the line, we’re delighted that the changes will be coming into force on 10th March 2014. This means that many people will find that their conviction becomes ‘spent’ a lot sooner than it did previously. It only applies in England and Wales, but the changes are ‘retrospective’, which means it applies to people convicted before the March changes.

So, if you were sentenced in June 2013 to 1 year in prison, this would previously have taken 10 years to become ‘spent’. Under the changes, this will reduce to 4 years from the end of the full sentence (so June 2018). It also means that many people who had a conviction that would never be spent (whose sentence was between 30 months and 4 years) will now find that it will be able to become spent. There are also big changes to non-custodial sentences. The rehabilitation periods for community orders are being reduced considerably, and fines are reduced from 5 years to 1 year.

For many people with convictions, this means an end to the years of struggles that they’ve had in finding work or buying insurance. One comment we recently received typifies the impact this will have – “I’ve struggled for the last 20 years. My convictions were previously never spent. I’ve been waiting for the last two years for these changes to come in. Finally, I can apply for work with a clean slate. Thank you.”

Once a conviction is spent, it means you don’t have to disclose for most jobs, and insurance, and it won’t be disclosed on a basic check. It doesn’t get deleted, and for jobs that involve standard or enhanced criminal record checks, it will continue to get disclosed in most cases.

However, despite all of the positives, the reforms are not perfect. Sadly, when the changes were being brought before Parliament, we found ourselves largely isolated in calling for further change. The result is that, while the reforms will undoubtedly make a significant impact to thousands of people, it nonetheless represents somewhat of a missed opportunity, given it’s the first time in nearly half a century that significant change has taken place.

For example, although the upper-limit of sentence that can become spent has been raised from 30 months to 4 years, we continue to campaign for a system that allows people with sentences of more than 4 years to have a way of their convictions becoming spent at some point. In 2012, over 7,200 people received a prison sentence of more than 4 years, and it remains a sad indictment on our criminal justice system that it believes it cannot rehabilitate these individuals. The simple passage of time might not represent the most appropriate way of attributing a rehabilitation period to a conviction, but placing any individual outside the scope of the Act permanently sends out the message that they are inherently ‘unreformable’ or ‘irreclaimable’ and acts as a disincentive to any attempt at reform on their part.

One solution would be to give people with sentences of over 4 years the opportunity to apply to a court or other tribunal for their conviction to become spent after going a minimum amount of time in the community conviction-free. Such a process could also apply to people who under the reforms have to wait many years for their conviction to become spent. One of the advantages of such a scheme would be to act as an incentive to achieve rehabilitated status so that the stigma of the ‘ex-offender’ label could be effectively removed as though the conviction had become spent from the mere passing of time. Achieving rehabilitated status could perhaps become a significant ‘marker’ in the process, a rite of passage, formal recognition of re-integration requiring conscious and deliberate activities consistent with good and active citizenship.

Another issue which wasn’t addressed by the reforms was the number of exceptions to the legislation, which relates to those jobs and roles where spent convictions can also be taken into account. The growing number of exceptions from and exemptions to the Act mean that people with old convictions are consigned to an increasingly narrow range of employment and educational opportunities. This is shown in the number of standard and enhanced criminal record checks undertaken in recent years (which can only be done on positions which are exempt from the Act). In 2002, there were 1.3 million a year; in 2011, there were 4.3 million.

Some of this represents an increasing appetite for criminal record checks from employers. Nevertheless, the same period has also seen a significant number of additions to the exceptions. Although the Government has ruled this out on a number of occasions, what is needed is for the exceptions order to be overhauled to establish precisely what types of occupations should be included in it. Consideration should also be given as to whether exceptions could be included based on the relevancy of the offence to the role/occupation, e.g. financial convictions for FCA approved-positions. Roles included within the exceptions order should only be entitled to certain spent convictions. Blanket access to all convictions is not a particularly sophisticated or effective way of disclosing conviction information.

The reforms also fail to deal with the developments since the original law was passed in the way that information is now readily available – largely referred to as the ‘Google effect’. There’s no easy answer to this problem – court reporting, albeit patchy, remains a fundamental right of our justice system, and the increasing ways of sharing information online represents a significant challenge to the way that the 1974 legislation works, particularly given its continued reliance on a ‘licence to lie’ principle. Sadly, the Act is often criticised for being ‘toothless’, and to my knowledge, no employer has ever been prosecuted for taking into account spent convictions, despite numerous anecdotal examples of this having taken place in practice. One practical measure would be to amend to ROA so that it was an offence to ask about criminal convictions beyond a limited form specific to unspent convictions (rather than just a duty to ignore any spent convictions). Without the force of the law to prevent employers and insurers from asking questions to which they are not entitled to know the answer they have and will continue to discriminate with impunity. Such a change would enable people with convictions to answer questions honestly, rather than being licensed to lie.

On a technical point, one thing that is being kept quite quiet is the way that motoring offences are being dealt with. Because of complaints by the insurance industry, the changes that were planned to motoring endorsements (from 5 years to nil) are no longer happening. Although we can understand the issues raised by the motor insurance industry, the unfortunate knock-on effect is that motoring convictions are dealt with much more seriously under the ROA than short prison sentences, and this applies not just to insurance, but also for when people are applying for work. This is an area that we’re actively looking to challenge moving forward.

Despite these issues, there is, without doubt, a feeling of relief that these reforms are finally coming into force. However, we shouldn’t lose sight of the remaining difficulties that are left unaddressed by the 1974 Act, and it would be a mistake to think that, if your conviction becomes spent under these changes, that’s the end of your problems. Sadly, in our experience, a criminal record will continue to haunt people for the rest of their lives, and in many cases this prevents people from reaching their full potential. That cannot be good for society.

What’s next in practice?

Once the changes come in on the 10th March, we’ll be updating the guidance we have on our self-help website, unlock.devchd.com/information-and-advice/, as well as updating our online tool disclosurecalculator.org.uk.

We also know that staff and practitioners that provide employment support and careers advice to people with convictions often struggle in understanding this legislation – 8 out of 10 people we provide training to get the ROA wrong, so we’re holding ‘masterclasses’ on the changes. Details of these can be found on our website.

Working for the NHS

by Nigel

I have convictions for violence (GBH from 8 years ago and a more recent one in 2010) and have recently applied for an IT Position in one of the NHS trusts.

The post is primarily away from patients and hospitals but may occasionally require going in to sort out IT problems, and it involves a DBS check. I did declare the unspent conviction on the original application as there was a section asking this.

I went for an interview, and nothing was mentioned regarding CRB/DBS checks or anything to do with my record. I received a phone call with an offer of employment, and was nervously waiting the dreaded DBS check in the paperwork.

When it came, I completed this fully and truthfully, and ten days later all checks have come back to HR and I have been given the go-ahead to start. I am just waiting on a start date now. This is an NHS trust and I am not sure if other trusts will have different procedures, but it’s good news for me at least and maybe gives others a bit of hope.